KAMAKSHI Vs. MINOR RAMALINGAM ALIAS MUNUSAMI

JUDGEMENT

(1.) THE 3rd defendant, who was brought on record in the trial court as the legal representative of the 1st defendant, is the appellant in this second appeal. THE plaintiff and the 2nd defendant are respectively respondents 1 and 2 herein. THE 2nd defendant is the alienee from the 1st defendant under Ex. B-1 sale deed, dated 27. 5. 1971. THE plaintiff is one minor ramalingam alias Munusami, by his next friend and mother Singarammal. According to the plaintiff, the 1st defendant who is his father, married the abovesaid singarammal in 1966 and the suit property belongs to the family of the 1st defendant and the plaintiff. On that footing the partition relief was claimed.

(2.) BUT, the defence to the suit is that Singarammal is not the wife of the 1st defendant and that the 1st defendant had only one wife by name Karuppayi and there was no marriage between the 1st defendant and singarammal and so, the plaintiff is not the son of the 1st defendant and the suit has to be dismissed.

(3.) THE learned counsel for the 1st respondent-plaintiff makes the following submissions: THE factum of the abovesaid marriage need not be proved. THE abovesaid Munusami referred to in Ex. B-1 can only be the plaintiff, since the cause title of the suit shows that the plaintiff has also got an alias name Munusami. However, even in Ex. A-3 suit notice dated 21. 6. 1973, the said alias was mentioned and in the reply Ex. A-4 sent by the 1st defendant, there was no repudiation of the said alias name. Further, there is no use merely denying, in Ex. A-4 the factum of the abovesaid marriage. THE 1st defendant must have also taken a legal proceeding to establish that Singarammal was not his wife. Further, the marriage would be void under Sec. 1 only if a petition is filed and the Court declares so, pursuant to the relevant clause under Sec. 5 of the Hindu Marriage Act. But, since no such petition has been filed in the present case, the abovesaid marriage cannot be taken as void marriage.