The first defendant in the suit in O.S.No.139 of 1992 on the file of the Sub Court, Tiruchirappalli, is the appellant in the above appeal. The respondents 1 and 2 in this appeal, as plaintiffs filed a suit in O.S.No.139 of 1992 for partition and separate possession of their 2/4 shares in all the suit properties. The suit is also for past and future mesne profit.
2.The plaintiffs filed a suit on the ground that they are the children of third defendant born out of third defendant's long co-habitation with one K.R.Thangam Chettiar and that the defendants 1 and 2 are also the children of K.R.Thangam Chettiar through the third defendant. The suit properties are claimed to be the properties of plaintiffs' father one K.R.Thangam Chettiar. It is peculiar in this case that the plaintiffs themselves claimed that the third defendant was not married to K.R.Thangam Chettiar due to certain legal complications that arose because of her earlier marriage and contended that the third defendant was only living with K.R.Thangam Chettiar and that the plaintiffs and the defendants 1 and 2 are the illegitimate children.
3.According to the plaintiffs, the said K.R.Thangam Chettiar was running a welding industry and that after the death of their father, the plaintiffs were carrying on the welding works business. The plaintiffs therefore claimed that they are the legal heirs of the deceased K.R.Thangam Chettiar and that they are entitled to share the suit properties along with defendants 1 and 2. Since the third defendant was described not as a wife but as a woman living with the said K.R.Thangam Chettiar, they have not reserved any right in favour of the third defendant. The fourth defendant is a purchaser of one of the items from defendants 1 and 3. Since the sale deed executed by the defendants 1 and 3 in favour of the fourth defendant is not binding on the plaintiffs, the plaintiffs ignored the sale deed.
4.The first defendant filed a written statement admitting that the defendants 1 and 2 are the children of third defendant. However, they disputed the averment that the plaintiffs were born to the third defendant while she was living with K.R.Thangam Chettiar. It is his specific case that the defendants 1 and 2 alone were born to the said K.R.Thangam Chettiar through the third defendant and that the plaintiffs were born to one Ranganathan of Pondicherry, through the third defendant. Even in the written statement, actual marriage between K.R.Thangam Chettiar and the third defendant was not pleaded. However, it is stated that the third defendant was living with K.R.Thangam Chettiar as his wife, due to the earlier marriage of the third defendant.
5.The trial Court decreed the suit holding that the plaintiffs also were born to the said K.R.Thangam Chettiar through the third defendant. As a matter of fact, the trial Court has believed the evidence of the third defendant who was examined as P.W.3.
6.Going by the pleadings in this case, neither the plaintiffs nor the defendants have ever admitted a form of marriage between the third defendant and K.R.Thangam Chettiar. It is not in dispute that the suit properties are the absolute properties of K.R.Thangam Chettiar. Unless the plaintiffs and defendants 1 and 2 are proved to be the children of K.R.Thangam Chettiar, through the third defendants out of a wedlock which may even be a void or voidable marriage, there is no scope for considering either the plaintiffs or the defendants 1 and 2 as the persons entitled to succeed to the properties of K.R.Thangam Chettiar. Hindu Law does not recognise right on illegitimate children to claim any share. Out of ignorance or lack of proper advice, the plaint and written statement have been drafted in such a way that there is no sufficient pleading to enable any of the parties to claim any right over the properties of K.R.Thangam Chettiar.
7.Despite this unfortunate situation, the trial Court has proceeded to treat both plaintiffs as well as the defendants 1 and 2 as legitimate children of Late K.R.Thangam Chettiar ignoring the legal implication of absence of marriage. Since the defendants also can claim right in the suit property only by admitting a form of marriage between their mother, the third defendant and Late K.R.Thangam Chettiar, this Court is not inclined to interfere with the judgment and decree of the trial Court on this score. If the plaintiffs and defendants 1 and 2 are declared to be not entitled to claim right over the properties of Late K.R.Thangam Chettiar, they will have difficulties and put to much hardship to protect their title and possession in case they face any litigation from any outsider. Further, the plaintiff and defendants 1 to 3 are in joint possession and hence, their possessory right cannot be ignored. The right to maintenance out of the estate of the father was recognised by all schools prior to 1956.
8.It is also relevant to note that one of the suit properties has been sold by the first plaintiff along with the third defendant, by a sale deed jointly executed by the first plaintiff along with first defendant. In this document, the first defendant has admitted the first plaintiff as a daughter of Late K.R.Thangam Chettiar. In these circumstances, despite there is lack of pleading and the stand taken by respective parties, are mutually destructive and suicidal to their own case to claim right over the properties of Late K.R.Thangam Chettiar, this Court declare the rights of plaintiffs and defendants 1 to 3 by virtue of their joint holding as co-owners having possessory right.
9.The trial Court has not given any share to the third defendant under the pretext that she has not claimed any right or share over the properties of Late K.R.Thangam Chettiar. Having regard to the facts narrated above, the mother of the plaintiffs and defendants 1 and 2 cannot be treated differently. Even at the time of filing the suit in the year 1992, the third defendant was aged and depriving her of her legitimate share would not be in the interest of justice. For the purpose of defending their possessory right, the equal rights of plaintiffs and defendants 1 to 3 is recognised in this suit.
10.Since it is brought to the notice of this Court that the 4th respondent in the above appeal, namely, the 3rd defendant in the suit is no more and the memo filed on behalf of the respondents 1 to 3 is recorded, the right of the 3rd defendant in the suit devolves on the appellant and the respondents 1 to 3. Hence, this Court declare the right of the appellant and the respondents 1 to 3 that they are entitled to 1/4th share each in the suit properties.
11.As a result, the judgment and decree of the trial Court in O.S.No.139 of 1992 on the file of the Sub Court, Tiruchirappalli is confirmed by declaring 1/4th share to each of the plaintiffs 1 and 2 and defendants 1 and 2 equally. This appeal is liable to be dismissed and hence, dismissed.
12.The fourth defendant has purchased one of the suit items from defendants 1 and 3. Similarly, some of the respondents who got themselves impleaded in this appeal pursuant to the sale of the properties by them, are also entitled to the fraction of the share that may be allotted to defendants 1 and 3. It is open to the subsequent purchasers to work out their remedy at the appropriate time or at the time of passing of final decree and to enforce their right to the extent that may flow from the sale deed without affecting the right of other sharers. The appeal is, therefore, dismissed but subject to the above terms. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Principal Sub Judge, Tiruchirappalli.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai..