Long cohabitation does not validate marriage during subsistence of earlier marriage. Defendants 8 to 11 entitled to equal share in self-acquired properties of Palayam.

1. This appeal is directed against the judgment of learned subordinate judge, Chengalpattu in A.S. No. 80 of 1989 in reversing that of learned District Munsif, Chengalpattu in O.S. No. 335 of 1981. The defendants 1 and 5 to 11 are the appellants in the above appeal.

2. The suit was filed for directing the partition of the suit properties into 16 equal shares and to allot 9 shares to the plaintiff and to direct the defendants to pay mesne profits from the date of the plaint till the delivery of the plaintiff’s share. According to the plaintiff, he is the son of one Palayam through his first wife/Pattammal. The 12th defendant is the daughter of Palayam and Pattammal. Pattammal died in 1966 and thereafter, the said Palayam married the first defendant as his second wife. The defendants 2 to 6 are the children of the first defendant. The seventh defendant is the younger sister of the first defendant. Palayam was having illicit intimacy with the seventh defendant. She was not married to Palayam and cannot in law be the legally wedded wife. The defendants 8 to 11 are the illegitimate children of the seventh defendant through Palayam. The plaintiff and Palayam constituted members of a joint family and the properties described in the schedule are the ancestral properties of Palayam and the plaintiff. Therefore, the plaintiff, as a co-parcener, was entitled to 1/2 share in the properties. The family was still joint. While so, Palayam, in collusion and in conspiracy with the defendants 1 and 7, appears to have created a fraudulent settlement deed in favour of the defendants 1 to 7. The plaintiff had obtained a registration copy of the settlement deed. The recitals therein are false and fraudulent. The plaintiff also denies the execution, the truth and the validity of the settlement deed. In spite of the repeated demand for partition, Palayam did not effect partition and thereupon, a notice was issued on 4-5-1980. There was no reply to the notice. Palayam died on 20-1-1981. The plaintiff finds it difficult to live jointly with the defendants and hence, the present suit.

3. In the written statement filed by the defendants, it was contended that the seventh defendant was the legally wedded wife of Palayam and defendants 8 to 11 are legitimate children of the seventh defendant through Palayam. The first defendant became sick after giving birth to the second defendant and she was not able to manage the family and there was no one to look after the family of Palayam. Therefore, the first defendant suggested that seventh defendant may be taken as the third wife of Palayam and with the consent of the first defendant and all the relations, the seventh defendant was married to Palayam. The said form of marriage was recognised in the community as a long established custom. It was further contended that the plaintiff and Palayam did not constitute any joint family. The suit properties are not ancestral joint family properties. They are the self-acquired properties of Palayam. He had validly executed a registered settlement deed in favour of the first defendant and the seventh defendant. The settlement deed was accepted and acted upon by the defendants 1 to 7. They have also taken possession of the properties and they are paying kist. It was further contended that even during the life time of Palayam, he has purchased certain properties, which are his separate properties. But after the death of Pattammal, the plaintiff took possession of those items of the properties and he was in enjoyment of the same. He was fully aware that the properties were purchased only by Palayam and Palayam alone was entitled to those items. But, he was not in good terms with his father and he had picked up quarrel with Palayam several times. There was a family arrangement in the year 1967 soon after the death of Pattammal and from that date, the plaintiff was living separately as a divided member of the family. It is only in view of hostile attitude of the plaint