Marriage between Kshatriya woman and Sudra man cannot be held as valid marriage.

There are two connected appeals. A.S. No. 774 of 1954, is a pauper appeal filed by minor Velu Niranjan, the plaintiff in O.S. No. 2 of 1953, on the file of the Subordinate Judge, Madurai, against the judgment and decree in that pauper suit in so far as it went against him. A.S. No. 65 of 1955 has been filed by Alagammal and Nagappa Konar, defendants 3 and 4 in O.S. No. 2 of 1953, in so far as they considered the judgment and decree as going against their interests.

The facts were briefly these: Minor Velu Niranjan, the plaintiff, was the son of one Sundari Ammal, the second defendant. He claimed that his mother, Sundari Ammal was married by Rajagopal Konar or Periakaruppan Konar as his second wife, his first wife being one Alagammal, the first defendant. According to him, Alagammal, the first defendant did not have any child for four or five years after the marriage and Rajagopal, her husband, despaired of her having issue, took upto himself Sundari Ammal, the second defendant, as his second wife, and that he lived with Sundari Ammal for some two months in his family house and for six years in a separate house as the two wives did not get along amicably, and that Sundari Ammal, who was for six and odd years exclusively under the protection of Rajagopal, delivered to him two children, not only the plaintiff, Velu Niranjan, but also a daughter Velammal, the fifth defendant. The fourth defendant, one Nagappa Konar, brother of Rajagopal, was added as he has a house of Rajagopal othied to him, under Exhibit B-1 dated 7th October, 1945, for one thousand rupees. The plaintiff claimed to be the legitimate son of Rajagopal Konar, who died on 7th February, 1946. He claimed for his legitimate share in the agricultural and non-agricultural properties left behind by Rajagopal. He attacked the trust deed, Exhibit A-7, dated 3rd July, 1940, executed by Rajagopal in respect of the plaint A Schedule properties for the performance of Puja to his family deities, Kannabiran and Karuppanaswami on Krishna Jayanti and Sivaratri days, as illusory, and as not binding on him; those properties constitute the major portion of the properties of Rajagopal, and yield an income of about Rs. 400 per year, and the first defendant Alagammal was made under the trust deed the sole trustee for her life to be succeeded thereafter by Rajagopal’s heirs. He also claimed that he was entitled to the entire agricultural properties covered by items 1 to 6 of the C Schedule, on the grounds that Madras Act XXVI of 1947, giving women a right to a share in agricultural properties, had not come into operation till 26th November, 1946, and Rajagopal, had died and the succession had opened on 7th February, 1946.

The suit was hotly contested by defendants 1, 3 and 4 who not only denied the marriage of the second defendant, Sundari Ammal, with Rajagopal Konar, but also denied that the plaintiff and defendant 5 were born to Rajagopal. In any event, they contended that Rajagopal had only had casual intercourse with Sundari Ammal, the second defendant, and that even if the plaintiff and defendant 5 were born to him by such intercourse, they would not be even illegitimate progeny of a Sudra, entitled to rights under the Hindu Law. The lower Court went elaborately into the evidence. Defendants 2 and 5 had remained ex parte. The learned Subordinate Judge, after discussing the entire evidence, held that the second defendant, Sundari Ammal, was not proved to have been validly married to Rajagopal Konar, but that she was proved to have been continuously kept as his concubine by Rajagopal for some six years, and that the plaintiff and the fifth defendant were born to Rajagopal, through the second defendant during such period of exclusively kept concubinage, and that, therefore, the plaintiff would be entitled to succeed to Rajagopal’s estate to the extent allowed to an illegitimate son of a Sudra under the Hindu Law. He held that the plaintiff would not be entitled to t