ANNAVI Vs. A GANESAN

JUDGEMENT

(1.) AGGRIEVED by the judgment, dated 02.09.1994 made in A.S.No.266 of 1993 passed by the Principal Sub-Judge, Trichy confirming the judgment and decree made in O.S.No.319 of 1990, dated 22.09.1993 on the file of the District Munsif Court, Musiri, the defendants have preferred this appeal.

(2.) THE plaintiff, Ganesan claims to be the son of the first defendant, Annavi. It is his case that the first defendant, Annavi married his mother, Pazhaniammal according to Hindu customs and rites and law before 40 years and out of their wedlock, the plaintiff was born on 11.06.1952. While so, the first defendant was keeping the fourth defendant, Thirumayee as concubine for the past 25 years and defendants 2 and 3, namely, Ganesan and Rajendiran were born to them. According to the plaintiff, defendants 2 and 3 are the illegitimate children of the first defendant through Thirumayee. THE plaintiff and the first defendant were members of the Hindu joint family. At the instigation of the fourth defendant, the first defendant attempted to create fraudulent documents and when the plaintiff questioned the same, the first defendant drove him out. THE plaintiff demanded partition through mediators on 21.09.2006 and the first defendant was not willing for an amicable partition. Hence, the plaintiff filed a suit for partition in O.S.No.319 of 1990 in respect of his 1 " share in the suit properties.

(3.) IN Ex.B1, Settlement Deed executed by the first defendant, he has stated that if any heirs were born to him and Thirumayee, the fourth defendant, the property will go to his heirs. At the time of execution of the Settlement Deed, Ex.B1, the first defendant did not have any sisters or brothers. When the first defendant has stated in the Settlement Deed that the property would go to his heirs, it becomes an established fact that the first defendant is having legal heirs. IN 1993, the first defendant has deposed that the marriage between him and the fourth defendant took place before 45 years, but, in the cross-examination, he has stated that his marriage with the fourth defendant was held in the year 1969. The difference between 1969 and 1993 is only 24 years, not 45 years. The Trial Court found that the marriage of Pazhaniammal and the first defendant took place in the year 1947.