NALLUSWAMI Vs. KAMSALA

JUDGEMENT

(1.) Aggrieved over the judgment of the learned District Judge, Salem, made in A.S.No.218/91 wherein the judgment of the trial Court in a suit for partition was reversed by granting a preliminary decree in favour of the plaintiffs. the first defendant has brought forth this second appeal.

(2.) Necessary facts for the disposal of this appeal are as follows: The suit properties belonged to the joint family consisting of the first defendant and his brother Ramasamy by survivorship. The said brothers continued as members of the coparcenary, and they were enjoying the properties without making a division. The wife of Ramasamy namely Chinnathangam died on 30.8.1978, after giving birth to a female child by name Rajeswari, the second defendant. For the purpose of convenient enjoyment, the properties were enjoyed by the brothers. The first plaintiff first married one Rasamuthu, and it ended in a divorce as per the custom of their community. The said factum of divorce was also reduced into writing in the form of Muchalika. The said Ramasamy, after the death of his first wife, married the first plaintiff, according to the caste and customs, and they were living together. The second plaintiff was born on 8.8.1981. The husband of the first plaintiff died on 17.3.1982 intestate, leaving behind the plaintiffs and the second defendant as the heirs. Since Ramasamy and his brother were entitled to each + share in the properties, each of the plaintiffs by operation of law was entitled to 1/6th share in the properties. Since amicable division was not possible, there arose a necessity for filing the suit for partition of the properties.

(3.) The suit was resisted by the defendants stating that the alleged marriage of the brother of the first defendant Ramasamy with the first plaintiff is false; that the second plaintiff was not born out of the said wedlock, and thus, the first plaintiff as the wife and the second plaintiff as the daughter of Ramasamy were not entitled to partition in the properties.