RAGHUVIR KUMAR Vs. SHANMUGHAVADIVU

JUDGEMENT

(1.) THE plaintiffs in O. S. No. 69 of 1960 on the file of the Sub-Court, Coimbatore, are the appellants in this appeal. They filed the suit for partition and separate possession of their alleged 3/10th share of A and B schedule items and for past mesne profits at the rate of Rs. 500 and future mesne profits at the rate of Rs. 2400 per annum from the date of suit till delivery of possession, or in the alternative, for possession of the properties equal in extent and value to that of the properties set out in the will dated 2-5-1949 executed by one Palaniswami nadar in favour of the first plaintiff. The first and second plaintiffs claimed respectively to be the son and fourth wife of the said Palaniswamy Nadar who dies on 5-1-1960 and the suit came to be filed on that basis. the first defendant is the third wife of Palaniswamy Nadar and defendants 2, 3 and 4 are his sons through the first defendent. The fifth defendant is the father of the first defendant and sister's husband of Palaniswamy Nadar. Defendants 6 and 7 are the grandsons of valliammal. Palaniswamy's maternal aunt and also the sons of his brother. Mounaguruswami. The 8th defendant was impleaded as he was claiming certain rights as usufructuarly mortgagee from Palaniswamy Nadar over one item. Palaniswamy got divided from his brothers and sisters by partition deed dated 3-81955 and 6-3-1959 and he died possessed of the properties set out in Schedules A and B to the plaint. Parts I and II of Schedule A to the plaint are the lands and houses respectively left by the deceased Palaniswamy. Part I and Part II of schedule B are outstanding and moveables respectively left by him.

(2.) THE plaintiff's claim for a share was denied by the contesting defendants 1 to 4 and they contended that the second plaintiff has not been married to the said palaniswamy and that she was only his concubine. They also alleged that so far as the particular part of the country where they reside is concerned in the Nadar community to which they belong, there was an immemorial customs prohibiting a second marriage while the first subsisted, that therefore the alleged second marriage of Planiswamy with the second plaintiff would be quite improbable and that in any event it would be invalid in view of the said custom even if the marriage had in fact taken place. They also denied the validity of the will said to have been executed by Palaniswamy in favour of the first plaintiff on 2-5-1949.

(3.) THE fifth defendant practically adopted the defence set out by defendants 1 to 4. Defendants 6 and 7 did not contest the suit but remained ex parte.