V S SUBBA REDDIAR Vs. SEETHARAMAN

JUDGEMENT

(1.) THE plaintiffs are the appellants.

(2.) THE suit was for declaration that the plaintiffs are the legitimate children of the second defendant and Punnayammal and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs of the properties mentioned in the schedule to the plaint, which were allotted to their share in pursuance of the final decree proceedings in O. S. No. 42 of 1945, on the file of Sub Court, Tuticorin, or, in the alternative, for recovery of possession of the properties from the defendants.

(3.) THE facts were: The plaintiffs are the children of one Punnayammal. Punnayammal is the wife of the second defendant. The third defendant, though she alleges that she is the lawfully wedded wife of the second defendant, is not the legitimate wife of the second defendant and hence the first defendant is not the legitimate son of second defendant. There was litigation in O. S. No. 42 of 1945, on the file of the trial Court, for partition. Since the plaintiffs thought that the second defendant herein was acting against their interests by associating himself with the third defendant and purchasing properties in her name, the said suit ended in favour of the plaintiffs and a final decree was passed on 17-12-1955. From 17-121955, the plaintiffs have been in possession of the suit properties in their own right. The second defendant herein, who was the first defendant in O. S. No. 42 of 1945, never denied that the plaintiffs were not born to him. In the year 1956, the third defendant filed O. S. No. 168 of 1956 on the file of the Court of the District munsif of Kovilpatti, for declaration that properties mentioned in the plaint schedule in that suit were in her possession and for an injunction restraining the present plaintiff from interfering with her enjoyment of the same. It was alleged in the said suit O. S. No. 168 of 1956, that the mother of the plaintiffs. Punnayammal, was ten years older to her husband, that her husband being the son of her first cousin was within the prohibited degree of relationship for marriage and that she was associated with one Subba Reddiar and all the plaintiff were born to him only. The plaintiffs herein alleged in the present suit that the third defendant falsely alleged in O. S. No. 168 of 1956 that the plaintiffs herein were not in possession of the suit properties in spite of the final decree in the partition suit. O. S. No. 42 of 1955. The second defendant herein remained ex parte in that case and did not file any written statement. The plaintiffs herein further alleged in the present suit that even assuming that the relationship between Punnayammal and the second defendant was within the prohibited degree for marriage, according to the Hindu Law Texts and Sastras, the marriage between punnayammal and the second defendant could not be questioned, as there was an ancient custom in the community of Reddis permitting such marriage and even the marriage of a person to his mother's sister. The plaintiffs as defendants in O. S. No. 168 of 1956 succeeded in that suit as well as in the appeal. The plaintiffs in that suit filed S. A. No. 1445 of 1959 before this Court. This Court found that the evidence regarding custom was meagre and unsatisfactory and allowed the second appeal with a reservation that the respondents in the appeal (plaintiffs herein)would be entitled to establish the custom and legality of the marriage of their parents by a comprehensive suit and by letting in adequate evidence relating to the ancient character and reasonableness of the same in a properly instituted declaratory suit for that purpose.