V.K. VENKATARAMAN Vs. MUTHUSAMI AND ORS.

JUDGEMENT

(1.) The fifth Defendant in Original Suit No. 78 of 1964 on the file of the Court of the Subordinate Judge of Erode is the Appellant. The Plaintiff, as a minor, represented by his friend and mother, Thangayammal, filed the present sanction for partition and possession of the Plaintiff's alleged half share in the suit properties. The first Defendant is the father of the minor. He married, in the first instance, the second Defendant, Kaliammal and he has two daughters through he; who are also parties to the action as Defendants 3 and 4, who, being minors, are represented by their maternal uncle -The first Defendant married again on 4th March. 1955, Than gayammal who is the mother of the minor Plaintiff. Whilst this is the position the first Defendant entered into an agreement, Exhibit B -1, dated 16th March, 1964, agreeing to sell the suit property to the fifth Defendant. We are informed that the fifth Defendant, finding that the first Defendant was evading to perform his part of the obligation under the agreement Exhibit B -1, has filed an independent suit for special performance of the agreement in the Court below and that the said suit is pending. During the pendency of the action, the Plaintiff has come to Court seeking for a partition and possession of his half share, in the property which is admittedly the Subject -Matter of the agreement of sale, Exhibit B -1, entered into between the first Defendant and the fifth Defendant. The first Defendant, as usual, remained absent and ex -parte. The second Defendant, filing a written statement on behalf of herself and her two minor daughters, says that the first Defendant's marriage with the Plaintiff's mother is a void one and that, in that sense, the Plaintiff cannot be said to be the legitimate son of the first Defendant to enable him to claim a share in the properties which are ancestral properties on the foot that is a coparcener in the family. The fifth Defendant also avers that the marriage between the first Defendant and Thangayammal is void, and that, therefore, the Plaintiff cannot be taken and considered to be the legitimate son of the first Defendant.

(2.) On the above relevant pleadings, the following issues were framed for trial:

(3.) The learned Judge found that the marriage as between the first Defendant and Thangayammal was true and that, the Plaintiff was born to the first Defendant. He also found that the said marriage was void under the provisions of the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949. But on certain a priori considerations, the learned Judge was of the view that, though the marriage was void under the provisions of the Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949, yet, after the passing of the Hindu Marriage Act 1955, (Central Act XXV of 1955),and in the absence of any express provisions declaring the children begotten by such marriages as illegitimate, the Plaintiff must be hold to be the legitimate son of the first Defendant entitled to partition as prayed for. He however held that the fifth Defendant, who had been made a party to the action, was a necessary party and was entitled to contest the suit and non -suit the Plaintiff, if possible. In the result, the suit was decreed as prayed for. It is as against this, the present appeal has been filed by the fifth Defendant.