The burden of proving the factum of marriage lies on the party claiming legitimacy under Section 16(1) of the Hindu Marriage Act, and the non-examination of a key witness who could speak about the marriage can be fatal to the case.

1. This appeal is filed by the plaintiff as appellant against the judgment and decree dated 30.8.1983 made in O.S. No. 27 of 1982 on the file of learned Subordinate Judge, Periyakulam.

2. The facts leading to the filing of the suit by the plaintiff against the defendants are as follows:— The defendants 1 and 4 are the legally wedded wives of late V.M. Palaniappan Chettiar and the said marriages had taken place prior to 1948. The plaintiff is the eldest daughter of late V.M. Palaniappan Chettiar through the 4th defendant, defendants 2 and 3 are two other daughters of late V.M. Palaniappan Chettiar through the first defendant. Late V.M. Palaniappan Chettiar amassed a good deal of wealth b y doing business in Automobiles and sales of cars and died on 22.1.1982 leaving his two wives and children born to them namely the plaintiff and defendants. The heirs of Palaniappan Chettiar succeeded to his estate in equal shares. The plaintiff is entitled to 1/4th share in the properties described in the schedule while the defendants 1 and 4 will get one such share as widows of Late V.M. Palaniappan Chettiar. Taking advantage of the absence of the plaintiff, the defendants are scheming to exclude the plaintiff to get a share in the suit properties. The defendants

1 to 3 along with the husbands of defendants 2 and 3 are making every effort to secrete the movable properties like jewels, bank deposits and other movables worth about several lakhs of rupees. The plaintiff, who is deemed to be in joint possession of the suit properties, has no other alternative except to come forward with the suit for partition. Therefore the plaintiff has claimed partition and separate possession of the suit properties in to 4 equal shares and to allot one such share to her, apart from deciding the future mesne profits to be paid to her under Order 20, Rule 12, C.P.C.

3. The first defendant supported by defendants 2 and 3, are resisting the suit claim on the following grounds:— The plaintiff is not the daughter of Late V.M. Palaniappan Chettiar. Nqr was she born to him through the 4th defendant. The 4th defendant is also not the legally wedded wife of late V.M. Palaniappan Chettiar. The 4th defendant was the wife of one S. Narayanasamy Chettiar of Bodinayakanur and the plaintiff was born to him through the 4th defendant on 22.9.1953. The 4th defendant and Narayanasamy fell out while the plaintiff was aged nine months and the 4th defendant, along with the plaintiff, left the company of Narayanasamy by executing a release deed on 1.6.1954. Thereafter the 4th defendant began to live with late V.M. Palaniappan Chettiar as concubine from the beginning of 1956 and no child was born to him through the 4th defendant at any time thereafter. The plaintiff, along with her mother, was living under the protection of late V.M. Palaniappan Chettiar. Since the marriage of the second defendant who is the daughter of late V.M. Palaniappen was to be celebrated by late V.M. Palaniappan Chettiar and the first defendant and since the plaintiff was also of marriageable age, late V.M. Palaniappan Chettiar had agreed to celebrate the marriage of the plaintiff along with his daughter, the second defendant. The celebration of the above said marriage by late V.M. Palaniappan Chettiar will not entitle the plaintiff to claim that she is the daughter of late V.M. Palaniappan Chettiar. The plaintiff and 4th defendant are not the heirs of late V.M. Palaniappan Chettiar and therefore they are not entitled to claim any share in the plaint A and B schedule properties, claiming to be in joint possession of the said properties. Items 3,

5 and 7 in B schedule properties are not in existence. The first item of B schedule property is a condemned car bearing Registration No. MDA 5007. The 4th item of properties belongs to the defendants 1 to 3 as Sridhana and separate properties. The 6th item of B schedule property is not partible. The 4th defendant had also left the company of late V.M. Palania