Presumption drawn u/s 114 is rebuttable.

The second defendant is the appellant. The first respondent filed suit O.S.No.791 of 1989 before the District Munsif’s Court, Erode, for partition and separate possession of her l/8th share in item 1 and l/4th share in item 2 of the suit properties on the following averments:

The third respondent and the first respondent were the daughters of the second respondent through once Kolandasami Gounder and the appellant was the daughter of Kolandasami Gounder through his first wife Vellayammal. Vellayammal died about 48 years prior to the suit and Kolandasami Gounder married the second respondent as his second wife. Under the original of Ex. A-1 dated 17. 1972 Kolandasami Gounder bought suit item 1 in the joint names of himself and the second respondent for Rs.2,400. The second respondent was entitled to one half share and in the balance one half, the first respondent, the third respondent and the appellant along with the second respondent would each be entitled to l/8th share. The suit second item was purchased under the original of Ex.A-2 on 25. 1958 by Kolandasami. Each of the parties would be entitled to 1/4th share in suit item 2. Kolandasami Gounder died in February, 1988. The demand for partition made by the first respondent and the appellant was not responded. The suit was therefore necessitated.

.2. The appellant, who was the second defendant in the suit, resisted the claim on the following averments:

Vellayammal died about 30 years" prior to the suit. Kolandasami did not marry the second respondent. Only Vellayammal was his legally wedded wife. No doubt, Kolandasami was in intimate terms with the second respondent, but they did not live as husband and wife. The first and the third respondents were not the children of Kolandasami. The second respondent was only a concubine of Kolandasami Gounder. The first and the third respondents were not next heirs or legal representatives. No form of marriage was gone through between Kolandasami Gounder and the second respondent. The Appellant was the only heir of Kolandasami Gounder. Half of item 1 would go to the second respondent and the other half and the entirety of item 2 would have to be taken by the appellant.

.3. The second and the third respondents herein, who were the first and the third defendants in the suit, contended as follows:

.The second respondent was the legally wedded second wife of Kolandasami Gounder. The marriage between Kolandasami Gounder and the second respondent took place as per the custom of the community at Kurumbapalayam near Velli Tiruppur in Bhavani Taluk. The marriage was after the death of the first wife Vellayammal. At that time Kolandasami Gounder was residing at Chinnavalasu. After the marriage, the married life between Kolandasami Gounder and the second respondent began at Chinnavalasu. The first and the third respondents were born thereafter. The second respondent also took care of the appellant. Their marriage were also celebrated at the appropriate time. The appellant was given in marriage to Chinnathambi, a cousin brother of the second respondent. Chinnathambi and the appellant came and lived with Kolandasami Gounder and the second respondent in Erode. Respondents 1 and 3 were also given in marriage. They also lived with their parents, viz., Kolandasami Gounder and the second respondent with their husbands. The shares as given in the plaint were correct. There should be a decree in favour of the second and the third respondents and they were also paying the proportionate court-fee.

4. The Second Additional District Munsif, Erode, framed the necessary issues and on the oral and documentary evidence adduced, found that the second respondent was the legally wedded wife of deceased Kolandasami Gounder and that the first respondent was entitled to partition and separate possession by his judgment and decree dated 110. 1994. The learned District Munsif decreed the suit as prayed for. This was confirmed in appeal A.S.No. 3 of 1995 on 3.