R. PERIYASAMY Vs. P. SUBRAMANIAN

JUDGEMENT

(1.) This civil revision petition has been filed by the defendant in O.S.No.81 of 2010 on the file of the Sub-Court, Kulithalai as against the order passed in I.A.No.38 of 2011 in O.S.No.81 of 2010.

(2.) The brief facts, that are necessary for the disposal of this Civil Revision Petition are as follows:- 2. 1. The respondent in this revision petition, as plaintiff, filed a suit in O.S.No.81 of 2010 before the the Sub-Court, Kulithalai , for partition of ¼ share in all the suit properties and for other consequential reliefs. 2. 2. The case of the respondent in the plaint is that the plaintiff is the son of the first defendant and one Deivanai and he is the only male heir of the first defendant. It is further stated in the plaint that the marriage between the plaintiff's mother namely, Deivanai and the first defendant was solemnized about 35 years back. It is also the case of plaintiff that the first defendant/revision petitioner drove the mother of the plaintiff away from the matrimonial home because of the difference of opinion and dissolved their marriage in the presence of panchyathars as per custom. Though it is admitted that the first defendant later married one Kunjammal as the second wife and another lady by name Kanniammal as his third wife, it is contended that the defendants 2 and 3 alone are the legitimate children of first defendant. It is also admitted in the plaint that the plaintiff's mother Deivanai contracted second marriage by marrying one Perumal as per caste custom. Since the suit properties are the ancestral properties of the first defendant, it is stated that the plaintiff has got a right to claim equal share along with the first defendant. Since the defendants 2 and 3 were the legitimate sons of the first defendant born after the discard of marriage between the plaintiff's mother and first defendant, it is admitted that they are also entitled to share in the suit properties. 2. 3. While filing the suit, the plaintiff relied upon the LIC policy and the receipt and the plaintiff's driving license apart from Bank Passbook and the registration certificate of Motor Vehicle as documents showing the relationship between the plaintiff and the first defendant as son and father. Since the plaintiff and the defendants 2 and 3 are the members of the joint family consisting of plaintiff and his father and other two legal heirs, the plaintiff claims that he is entitled only for ¼ share and the remaining share should go to the defendants.

(3.) The suit was contested by the first defendant by filing a detailed written statement. The first defendant disputed the relationship between the plaintiff's mother and the first defendant and the marriage between the plaintiff's mother and the first defendant. It was stated in the written statement that the said Kunjammal is the only wife of the first defendant. It is the specific case of the first defendant that the said Deivannai/Plaintiff's mother was the wife of Perumal and that the plaintiff is the son of the said Perumal and Deivanai. In the written statement several transactions, showing the plaintiff as the son of Perumal, are referred to. As a matter of fact, in a suit filed by the first defendant for a declaration and consequential injunction in O.S.No.537 of 2004, the plaintiff has been impleaded along with his father Perumal as defendants. A settlement deed had been executed by Perumal in favour of his son, the plaintiff, on 08.10.2002. Subsequently, the same was cancelled by another document, dated 10.12.2004. Since the plaintiff mortgaged some properties in favour of first defendant, the said suit is for a declaration that the settlement deed dated 10.12.2004 will affect the right of the plaintiff there in as an usufructuary mortgagee and consequential injunction restraining the defendants from alienating or encumbering the suit properties.