Judgment.-This suit relates to the succession to the properties of one Thiruvengada Nayakar who died on the 21st March, 1945. The plaintiff claims as his divided brother on the ground that the deceased did not leave any nearer heir like widow or child. The first defendant claims to be the second wife of the deceased and defendants 2 and 3 claim to be the son and the daughter respectively of the deceased by the first defendant. The defendants put forward an alternative case that even if the first defendant was not the lawfully married wife of the deceased, she was in any event his permanently kept concubine and the second defendant was the son born to the deceased by the first defendant and therefore as an illegitimate son he would be entitled to succeed to his putative father. It is obvious that the plaintiff’s suit must fail if either case of the defendants is established.

Issues 1 to 4 raise questions which are really necessary for the disposal of the suit. Issues 1 and 2 relate to the plea of a lawful marriage set up by the defendants while issue 3 relates to the case of exclusive concubinage set up by them.

The undisputed facts are as follows. Sometime in 1922 there was a partition between the deceased Thiruvengada Nayakar and his two brothers, and the properties now in suit fell to the share of Thiruvengada. The deceased was married to one Saraswathi and she died in December, 1933. The first defendant was herself married to one Kolandavelu who died in March, 1935. It is common ground that the first defendant and her deceased husband Kolandavelu Naicker were tenants in the house belonging to the deceased Thiruvengada Nayakar, namely, 1-A, Vathiar Kanda Pillai Street, Choolai, Madras, and the deceased was himself living in another part of the same house. Though the actual date from which the tenancy started is not known, it appears from the evidence that they were tenants even prior to the death of Thiruvengada’s first wife. It is also admitted by the plaintiff that even subsequent to the death of her husband Kolandavelu Nayakar, the first defendant continued to live in the same house in which Thiruvengada lived, right up to his death.

The first defendant’s case is that, within two months after the death of her husband Kolandavelu Nayakar, she married Thiruvengada Nayakar and since the date of the marriage lived with him as his wife and bore him four children of whom two, namely, defendants 2 and 3 survive. According to the first defendant, the ceremony of marriage which was gone through was not presumably the usual marriage ceremony, but a ceremony which consisted in tying what is called Nadu veetu thali according to a custom among Nayakars, The plaintiff firstly denies the factum of marriage and further pleads that the alleged ceremony, even if it took place, is no form of legal marriage. In paragraph 11 of the plaint a further contention is put forward, namely, that the first defendant does not belong to a community, in which re-marriage is permitted by custom and therefore she is not the legally married wife of Thiruvengada Nayakar. This contention is obviously untenable because, after the Hindu Widows’ Re-marriage Act, it is not necessary to resort to custom to validate the re-marriage of a Hindu widow. It is not pleaded that there is a custom which invalidates a marriage permitted by Statute even assuming such a custom can ever be upheld by a Court. This contention can therefore be disregarded in limine.

Two questions therefore arise-a question of fact and a question of law. On the question of fact the evidence is all one way though, it must be admitted, the evidence is very meagre. The first defendant herself has given evidence of the ceremony that was gone through for the marriage. Her second witness, one Ramanuja Naicker who claims to have been a tenant in the house of Thiruvengada Nayakar for several years, says that he was present on the occasion of her marriage He describes the ceremony thus: In the centre of the co

Click Here to Read the rest of this document