Legitimacy of the son born out of the wedlock of husband and wife.

1. The plaintiff in O.S.No.66 of 1984 on the file of Sub Court, Thirupathur, has preferred the second appeal aggrieved against the judgment and decree passed by the learned Additional District Judge, Vellore, in A.S.No.72 of 1989 dated 13.11.1989 reversing the judgment and decree of the trial court dated 28.2.1989.

2. The case in brief is as follows:- The minor plaintiff represented by the mother, Shanthi, filed a suit for partition and separate possession of his share in the suit property. The defendant married one Vimala, and as they have no issues, the defendant married the mother of the plaintiff on 14.12.1980 according to the custom prevailing in the community in Pallikondan Village. Ever since the date, they lived as husband and wife for a period of three years and thereafter, she was driven out of the house and the minor plaintiff was born on 2.11.1983 in the Government Hospital at Ambur. The defendant has not been paying anything towards the maintenance of the plaintiff and he is entitled to half share in the suit property and the defendant also should be directed to render account. Hence, the suit.

3. The defendant took a plea in the written statement that items 2 to 4 are ancestral properties. Items 1 and 5 were purchased by him out of his own funds. He married the said Vimala on 12.6.1964 according to Hindu rites. He denied the marriage with Shanthi on 14.12.1980 in Pallikondan Village and also the birth of the minor plaintiff. He also denied having sent her out of the house and now at the instigation of the enemies, the present suit has been filed only to grab at the properties.

4. The trial court framed 4 issues and on behalf of the plaintiff, P.Ws. 1 to 4 were examined and Exs.A-1 to A-4 were marked. On the side of the defendant, D.Ws. 1 and 2 were examined and Exs.B-1 to B-8 were marked. The trial court passed a preliminary decree in favour of the plaintiff in respect of items 2 to 4 only. Aggrieved against this, the defendant preferred A.S.72 of 1989 and the plaintiff preferred cross objections before the Additional District Court, Vellore and the learned Judge after hearing the parties, allowed the appeal and set aside the judgment and decree of the trial court and also dismissed the cross objections. Aggrieved against this the plaintiff has filed the present second appeal.

5. At the time of admission of this appeal, the following substantial questions of law were framed by this Court:

1) Whether the finding of the first appellate court that the appellant is not the son of the respondent is legally sustainable in view of the exhibits, birth extract and the panchayat muchilika?

2) Whether the finding of the first appellate court that the respondent has discharged the burden of proof lis on him to establish that items 1 and 5 of the suit properties are his self acquired properties is legally sustainable?

6. Heard the learned counsels of both sides.

7. Thepoint that arise for consideration are:

1) Whether the next friend of the plaintiff was the legally wedded wife of the defendant?

2) Whether the plaintiff is the legitimate son of the defendant?

3) Whether the plaintiff is entitled to partition and separate possession of his share in the suit property?

4) To what relief?

8. Points: The next friend of the minor plaintiff was examined as P.W.1. P.W.2 is the father of P.W.1. They were examined to prove the marriage of D.W.1 with P.W.1 and also the birth of minor plaintiff. Ex.A-1 is the birth extract dated 7.11.1983. Ex.A-2 is the legal notice sent through counsel by P.W.1 to D.W.1. Ex.A-3 is the reply sent by the defendant. According to P.Ws. 1 and 2, the marriage of P.W.1 took place on14.12.1980 outside the temple in Pallikondan Village and they lived for a period of three years. Thereafter, due to misunderstanding, P.W.1 was driven out of the house and nothing was paid towards maintenance. P.W.4 was also examined to speak out the marriage of P.W.1 with D.W.1. P.Ws.3 and 4 were also examined to sp