This is an appeal by the sixth defendant against the preliminary decree in the suit for partition of the family properties instituted by the plaintiff and tried on the original side by Rajamannar, J.

Tirumalai Chetti, the first and second defendants and Chinnadorai were the sons of one Ramiah Chetti. Chinnadorai died issueless in 1931. Tirumalai died in 1944. Both were undivided in status from their brothers at the time of their death. The plaintiff is the grandson of Tirumalai and the son of Raghava Chetti who pre-deceased Tirumalai. The plaintiff claimed that he along with the first and second defendants and their sons, the third and fourth defendants, constituted a coparcenary. The fifth defendant is the widow of Tirumalai. The sixth defendant is the son of Janaki, who he claimed, was the lawfully wedded second wife of Tirumalai; the sixth defendant was their legitimate son. The alternative claim of the sixth defendant in the suit was on the basis, that he was a dasiputra and that Janaki was a continuously kept concubine of Tirumalai. The parties were all sudras.

The learned trial Judge found that Janaki was not the lawfully wedded wife of Tirumalai, but that she was only the concubine of Tirumalai, and that the sixth defendant was their son. The correctness of this finding was challenged in the memorandum of appeal, but that finding was amply supported by the evidence on record. D. W. 2, a cousin of Tirumalai, called by the sixth defendant, stated quite unequivocally that Janaki was not married to Tirumalai but that she was only his concubine. Even apart from the statements of Tirumalai himself embodied in Exs. P. 1 and P. 2 the testimony of D.W. 2 should suffice to negative the plea of the sixth defendant that his mother was the lawfully wedded wife of Tirumalai and that he was Tirumalai’s legitimate son.

The alternative basis for the claim put forward in the suit by the sixth defendant for a share in the properties of the family, of which the plaintiff and defendants 1, 2, 3 and 4 were co-parceners, was that the sixth defendant was the illegitimate son of Tirumalai, born of Janaki, the permanently kept woman of Tirumalai. In paragraph 3 of the plaint the plaintiff averred:

“As the said deceased Tirumalai Chetti left no separate property of his, and all the properties are joint family properties and as he had also left his undivided brothers, the sixth defendant even if he is proved to be validly an illegitimate son of the deceased is not entitled to enforce a partition, but at best entitled to maintenance only.”

The sixth defendant’s answer to this was in paragraph 5 of his written statement. He claimed that, even if he was only an illegitimate son of Tirumalai, he would still be entitled “to a share in the properties of the said Tirumalai Chetti” and “not merely entitled to maintenance therefrom as alleged in the plaint.” Issue 4 in the suit ran:

“Is the sixth defendant a legitimate son of the late Tirumalai Chetti? If not, is he the son through a permanently and exclusively kept concubine? If so, is he entitled to any share or other right in the joint family?”

The only witnesses examined before the preliminary decree was issued were D.Ws. 1 and 2. The trial at this stage appears to have come to an end rather abruptly when D.W. 2, who was in the box, gave up the case pleaded by the sixth defendant, that the sixth defendant’s mother Janaki was the lawfully wedded wife of Tirumalai. The only record of what happened in the trial Court that is available to us is what the learned trial Judge himself has embodied in his judgment. The plaintiff’s counsel in the trial Court referred to Pachai Pillai v. Gopala Pillai1. The learned trial Judge observed,

“It was there held that before the illegitimate sons of a Sudra can succeed to his estate, they must show that connection between their parents was not adulterous. This may be so; but in this case, admittedly, the sixth defendant is not entitled to any right of inheritanc