Distinction between judgments of a Civil Court and Probate Court.

NAINAR SUNDARAM, J.

Defendants 1 to 5 in O. S. No. 32 of 1976, on the file of the Subordinate Judge, Sivaganga, are the appellants in this Letters Patent Appeal. The respondent herein is the plaintiff in the suit. The plaintiff filed the suit for a declaration of heirship and recovery of possession on the strength of title. The plaintiff based her claim as follows :

The plaintiff is the daughter of Velu Ambalam and Karuppayee, who were law-fully wedded as husband and wife. The plaintiff was born out of such wedlock on 3-11-1943. The first defendant was a sister's daughter of Velu Ambalam and she was brought into the family for domestic assistance. Velu Ambalam developed sexual contact with the first defendant due to proximity. The first-defendant was not the lawfully wedded wife of Velu Ambalam. Defendants 2 to 5 were born to the first-defendant out of her illegal intimacy with Velu Ambalaml'.' The plaintiff and her another Karuppayee were driven out of the household at the instance of the first-defendant in or about 1950. The plaintiff's mother Karuppayee later married one Subbiah Ambalam of Ariyakudi, who also died. The plaintiff was living in the household of her maternal grand mother and on her demised she has been living with her maternal aunt. Velu Ambalam died on 27-3-1973 leaving the plaintiff as his only legal heir. All the properties set out in the plaint schedules belonged to late Velu Ambalam. Though the properties set out in B Schedule stand in the name of the first-defendant, they were acquired only by Velu Ambalam benami, in the name of the first-defendant.

2. The defendants contested the suit saying as follows : Karuppayee was not the lawfully wedded wife of Velu Ambalam. The plaintiff was not the daughter of Velu Ambalam. The first defendant was the lawfully wedded wife of Velu Ambalam and defendants 2 to 5 are the legitimate children of Velu Ambalam through the first-defendant. B schedule properties are the absolute properties of the first defendant. Under the Will dated 19-12-1965, executed by Velu Ambalam at Muar in Malaya, Velu Ambalam bequeathed all his properties to the children of the first-defendant appointing her and others as executors. The plaintiff is not the legal heir of Velu Ambalam and she is not entitled to get any relief.

3. Reflecting the controversy that arose on the pleadings, the Court below formulated the following issues:

"(1) Whether the plaintiff's mother Karuppayee was the legally wedded wife of Velu Ambalam and the plaintiff was born to them?

(2) Whether the first-defendant was married to Velu Ambalam and even if the marriage was true, is such marriage valid?

(3) Whether the plaintiff is the sole heir of Velu Ambalam?

(4) What are the properties left by Velu Ambalam?

(5) To what relief is the plaintiff entitled?

Additional Issue :

(6) Whether the Will dated 19-12-1965 executed by Velu Ambalam propounded by defendants is true and valid?" *

The parties placed their evidence oral and documentary and that was the subject matter of consideration by the first court and the findings of the first Court are to the following effect: The plaintiff's mother Karuppayee was the lawfully wedded wife of Velu Ambalam and the plaintiff was born to them out of such wedlock. The first defendant was not the lawfully wedded wife of Velu Ambalam. The Will dated 19-12-1965, though true is not valid and could not be acted upon for want of letters of administration under S. 228 of the Indian Succession Act from a competent Court in India. The plaintiff is the sole heir of Velu Ambalam. B schedule properties are the separate properties of the first defendant. Regarding other properties, except the properties comprised in schedules A-1 and A-2, there is no proof that other properties were available at all. The first Court, on its findings, granted a decree in favour of the plaintiff on 14-4-1977 for declaration and possession in respect of the properties set out in schedules A-l and A-2. There was an omission