A MURUGESAN Vs. ANGAMUTHU GOUNDER

JUDGEMENT

(1.) THE plaintiff in O. S. No. 505/85 on the file of the learned Subordinate Judge, Sangagiri, is the appellant in the second appeal. He filed the suit for partition and separate possession of his one half share in the suit properties. THE defendants were his father Angarauthu and his sons through one Chinnathayee.

(2.) HIS case as set out. in the plaint is as follows: The suit properties fell to the share of the first defendant in a partition dated 17. 4. 1973. The first defendant married the plaintiffs mother one Thailammal in 1935 as per custom in the community. The plaintiff and one Thankamma were born to them. Out of the income from the joint family properties, the first defendant constructed houses, dug up wells and purchased properties. The plaintiff was entitled to one half share in the suit properties. There were no debts to the family. The first defendant had an elder brother by name Sengoda Gounder. He died leaving behind two wives, Thaiyamuthammal and Chinnathayee. The first defendant was keeping Chinnathayee as his concubine. Defendants 2 and 3 and three female children were born to them. There was misunderstanding between the plaintiff and the first defendant because of defendants 2 and 3. The plaintiff caused a notice to bo issued on 7. 2. 1985 for partition. The first defendant sent a reply stating that the plaintiff was only his second wife's son and d efendants 2 and 3 were his sons through his first wife Chinnathayee and they were also entitled to a share. The suit was therefore necessitated.

(3.) IT is as against that, the present second appeal has been filed. At the time of admission, the following substantial question of law was framed for decision in the second appeal: Whether the Court below was right in law in stating that a presumption of a valid marriage must be drawn between the first defendant and Chinnathayee "