SARANGAPANI Vs. VARADHAN

JUDGEMENT

(1.) IN the light of the arguments advanced, the short question mainly involved in this First Appeal by defendants 1 to 9, against the preliminary decree for partition of 4/14th share of the plaintiffs respondents 1 to 4 herern, granted in O.S. No. 26 of 1982 on the file of the Sub-Court, Villupuram, is whether one Kiliyambal ammal alias Kamalammal, who died in 1972, was the wife of Venugopal Pillai, who died in 1979 and whether the said respondents 1 to 4 herein are the legitimate children of the said Venugopal Pillai and Kiliyambalammal. Admittedly the tenth defendant, who died pending suit was the wife of the said Venugopal Pillai and the appellants are the children of the said Venugopal Pillai through her. The trial Court, accepting the plea of the plaintiffs and negativing the plea of the defendants 1 to 10 granted the preliminary decree prayed for in respect of suit 'A' schedule properties (lands and houses), items 1 to 3 of suit 'E' schedule properties (outstandings) and item 8 of 'C' schedule (Utensils) on the footing that the said Kiliyambal ammal was one of the wives of Venugopal Pillai and the plaintiffs were their children. After analysing the entire evidence, the Court below came to the abovesaid conclusion, pursuant to S. 114 of the Evidence Act, since it found that Venugopal Pillai and Kiliyambal ammal were living together for a long time as husband and wife.

(2.) IN view of the abovesaid short question involved, there may not be any necessity for setting out the allegations in the plaint and the written statement separately. No doubt, there was also one other question in the suit as to whether the suit properties were separate properties of Venugopal Pillai as pleaded by the plaintiffs or the joint family properties of Venugopal Pillai's family as pleaded by the defendants. The Court below held that the properties were separate properties of Venu gopal Pillai. Though, the learned counsel for the appellant initially sought to make some faint arguments to contend that the properties were joint family properties, but finally he did not press the said argument any further. So, in this appeal we proceed as if the suit properties were only self-acquired properties. There is also no scope for holding otherwise. There is also no scope for the other faint argument made by the learned counsel for the appellant that if the suit properties are, joint family properties, the suit is barred by limitation. This question also will not wise because, as already mentioned, the properties are taken only as self-acquired properties. Defendants 11 and 12 are only lessees of some of the properties and they are respondents 6 and 7 herein.

(3.) THE trial Court, in the light of Exs. A14 to A-18 and other features in the case also held that the plea of the defendants 1 to 10 that the plaintiffs were only tenants of the abovesaid family house cannot be true. It also dealt with Exs. B-1, B-2 and B-4, documents filed, by the defendants. Ex. B-1 is the Lawyer Notice dt. 10-3-1963 issued by Kiliyambal Ammal against Venugopal Pillai claiming that she and her children are entitled to a share in Venugopal Pillai's properties as his wife and children and that they must also be maintained by him. Ex. B-2 dt. 25-9-1963 is the reply given through a Lawyer by Venugopal Pillai. THEre, he repudiates Kiliyambal's claim that she was his wife and the plaintiffs were his children through her. He also says in the said reply that Kiliyambal Ammal was married to a person, in Virinjipakkam and the allegation that she and himself were living as husband and wife was a lie and that she and her children were living in her parent's house. Since Dealing with Ex. B-2 the trial Court observes that in the light of the other evidence in the case, Ex. B-2 would not advance the case of the defendants, particularly, when the defendants have not sought to let in any evidence regarding the allegations in Ex. B-2 that Kiliyambal Animal was already married to another person at Virinjipakkam. THEn coming to Ex. B-4, it is a Release Deed dt. 11-12-1968 executed by Venugopal Pillai and Defendants 1 to 9 in favour of Venugopal Pillai's brother Arumugham Pillai, whose son gave evidence as P.W. 2 in this case supporting the case of the plaintiffs. THE release was in respect of an admittedly joint family property, which is not the subject matter of the present suit. In this regard the argument of the defendants was that if really the Ist and 2nd plaintiffs (son) were also of the coparceners same joint family members they also would have figured as releasors in Ex. B-4, and the fact that they were not parties to Ex. B-4 shows that they were not the legitimate children of Venugopal Pillai. Here again, the trial Court held that simply because of the abovesaid fact it cannot be said that Kiliyambal was not the wife of Venugopal Pillai and the plaintiff's were not legitiulate children of Venugopal Pillai through her, particularly, in the light of other evidence in the case.