Validity of the gift of equity.

Ramaprasada Rao, J: — As against a common judgment rendered by the learned Subordinate Judge of Chidambaram in two Original Suits tried by him collectively and numbered as. O.S.No. 43 of 1970 and O.S. No. 48 of 1973 on his file, the above appeals arise.

2. We shall here deal with substantive rights as between the sharers in the estate of one Abdul Azeez Maracair who died in the year, 1962. He married, according to the plaintiffs, only twice, but according to others, thrice. The plaintiffs are the sons and daughter of Abdul Azeez Maracair (hereinafter referred to as Azeez) through his second wife. The first defendant is his first wife. The sixth defendant whose marriage with Azeez is disputed is the third wife. The 7th and 8th defendants are the son and daughter respectively of Azeez through the third wife and defendants 9 to 11 are the sons of the second wife through her earlier marriage with another person. Defendants 2 to 5 are admittedly the predecessors of the plaintiffs’ share in the estate of Azeez in so far as suit items 7, 8 and 10 are concerned. The case of the plaintiffs is that the 6th defendant is not a lawfully wedded third wife of Azeez and in consequence, defendants 7 and 8, though impleaded as parties formally to this litigation, are not entitled to any share in the estate of Azeez. They would also contend that defendants 9 to 11 are not entitled to any share even as heirs of their mother who was the second wife of Azeez and who is also the mother of the plaintiffs. It was in those circumstances that they came to Court with a suit for partition and separate possession of their 15/16th share in 13 items of property, which according to them belonged to Azeez. In so far as this part of the litigation is concerned, as we stated already, apart from the controversy as to the properties to which Azeez was entitled to on the date of his death, the question which has to be decided in the first instance, so as to hurdle -over and mop up certain inconvenient situations regarding the number of sharers and their entitlement is whether the sixth defendant was the lawfully wedded wife of Azeez. The case of the 6th defendant was that she was such a wife and defendants 7 and 8 are the heirs of Azeez along with others and they are the children born to her through Azeez. We shall, therefore, restrict this part of our judgment for the consideration of the question whether the sixth defendant could be said to be the lawfully wedded wife of Azeez. In fact, A.S. No. 550 of 1974 is an independent appeal by defendants 6 to 8 as against the finding of the Court below that the sixth defendant was not truly and lawfully wedded to Azeez. The Court below would not believe the oral and documentary evidence let in by the 6th defendant to support her claim that she did marry Azeez in accordance with the personal law of the parties and that the 7tb and 8th defendants are her children born through him. As against those findings, the present appeal has been filed.

3. In the trial Court, the main contention of the plaintiffs was that the 6th defendant was already married at or about the time "when she contracted intimacy with Azeez and in the absence of a talak as between her and her prior husband in a manner known to law, there could not have been a lawful wedlock as between her and Azeez and that therefore, defendants 7 and 8 cannot be understood and treated as the heirs of Azeez entitled to share in his estate. We may at once state that before us, plaintiffs and defendants 2 to 5 who, to use a loose expression ‘the successors-in-interest’, purchased certain suit items are not represented. Mr. Thillaivillalan filed his vakalat for the plaintiffs as well as defendants 2 to 5. But though the appeal was in the list for several days, he has not appearedt nor has he made any arrangement otherwise. The appeals came up for hearing yesterday and again continued today and even then, there is no representation. We had to, therefore, call the plaintiffs and

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