PERUMAL GOUNDER Vs. PACHAYAPPAN

JUDGEMENT

(1.) The defendants in O.S. No.117 of 1981, District Munsif's Court, Gingee, who are husband and wife, are the appellants in this Second Appeal. The suit in O.S. No.117 of 1981 was instituted by the respondents herein praying for the relief of partition and separate possession of the first respondent's half share in the suit properties and for mesne profits and for recovery of maintenance at the rate of Rs. 100/- per mensem in so far as respondents 2 and 3 are concerned, with a charge over the properties of the first appellant herein.

(2.) The case of the respondents is briefly as follows :- The suit properties are the joint family properties of the first appellant and the first respondent. The third respondent is the legally wedded wife of the first appellant and respondents 1 and 2 are the issues born out of that wedlock. Since the second appellant, wife of the first appellant, was afflicted with some incurable disease, with the consent of the second appellant, the first appellant married the third respondent in 1953 according to Hindu rites and custom. The first appellant and the third respondent were living as husband and wife and a male child was born to them on 29-7-1961, but the child died subsequently. Thereafter, the first respondent was born on 3-3-1968. The third respondent and the first appellant were living together happily till about 1975 and thereafter, the first appellant deserted the respondents and drove them out of the house at the instigation of the second appellant. According to the case of the respondents, the first appellant is bound to protect them but, he, with a view to leave the respondents in the lurch, had executed a settlement deed on 1-6-1979 in favour of the second appellant in respect of items 4 and 5 of the suit properties. The first appellant, according to the respondents, was not competent to execute a settlement deed in respect of the joint family properties in favour of his wife, the second appellant, and that would be an invalid transaction. The first appellant is in exclusive enjoyment of the suit properties, realising a net annual income of Rs. 6,000/-. On 7-6-1979, the respondents issued a notice to the appellants calling upon them to cancel the settlement deed, to which a reply was received containing false allegations. The respondents also claimed that even on the footing that respondents 1 and 2 are illegitimate children born to the third respondent, by virtue of the amended S.16 of the Hindu Marriage Act, 1955, they should be regarded as legitimate children so that the first respondent is entitled to his legitimate share in the suit properties and the first appellant is bound to maintain respondents 2 and 3 towards which they claimed that they should be given a sum of Rs. 100/- per month each. It was under the abovesaid circumstances that the respondents instituted the suit praying for the reliefs set out earlier.

(3.) In the written statement filed by the first appellant, which was adopted by the second appellant, they contended that the third respondent is not the legally wedded wife of the first appellant and that respondents 1 and 2 are not the issues born of such lawful wedlock. That the second appellant was afflicted with some incurable disease was denied. The third respondent, according to the appellants, is the legally wedded wife of one Narayanasamy and even on the assumption that the first appellant had married the third respondent, such a marriage would be void, as the second appellant is alive and the husband of the third respondent is also alive and, therefore, respondents 1 and 2 cannot claim to be legitimate children. The living together of the first appellant and the third respondents is denied. The claim of respondents 2 and 3 to maintenance was disputed and was also characterised as excessive. The properties were claimed by the first appellant as his self-acquired properties. The right of the first respondent to claim a share in the properties was disputed and the first appellant stated that he had full rights to alienate the properties. Alleging that the first appellant had also borrowed certain amounts, the appellants contended that provision should be made for the payment of those debts also. Finally, the appellants prayed for the dismissal of the suit.