Concubine can not claim for partition in the property.

Aggrieved by the judgment, dated 02.09.1994 made in A.S.No.266 of 1993 passed by the Principal Sub-Judge, Trichy confirming the judgment and decree made in O.S.No.319 of 1990, dated 22.09.1993 on the file of the District Munsif Court, Musiri, the defendants have preferred this appeal.

2. The plaintiff, Ganesan claims to be the son of the first defendant, Annavi. It is his case that the first defendant, Annavi married his mother, Pazhaniammal according to Hindu customs and rites and law before 40 years and out of their wedlock, the plaintiff was born on 11.06.1952. While so, the first defendant was keeping the fourth defendant, Thirumayee as concubine for the past 25 years and defendants 2 and 3, namely, Ganesan and Rajendiran were born to them. According to the plaintiff, defendants 2 and 3 are the illegitimate children of the first defendant through Thirumayee. The plaintiff and the first defendant were members of the Hindu joint family. At the instigation of the fourth defendant, the first defendant attempted to create fraudulent documents and when the plaintiff questioned the same, the first defendant drove him out. The plaintiff demanded partition through mediators on 21.09.2006 and the first defendant was not willing for an amicable partition. Hence, the plaintiff filed a suit for partition in O.S.No.319 of 1990 in respect of his 1 ½ share in the suit properties.

3. The defendants filed a Written Statement stating that the fourth defendant, Thirumayee is the legally wedded wife of the first defendant, namely, Annavi. The case of the first defendant is that the suit properties are his absolute properties and he had executed a registered Settlement deed in favour of his wife, the fourth defendant, of the suit property on 29.07.1969, marked as Ex.B1. The possession of the property had been delivered to and taken by the fourth defendant even on the date of the settlement and she is in possession of the property. The fourth defendant denied the allegation that she is an exclusively kept concubine of the first defendant. Defendants further stated that Palaniamal is not the wife of the first defendant and the plaintiff, namely, Ganesan is not the son of the first defendant. According to the defendants, the suit is not sustainable without a prayer for declaration of the plaintiffs title and since there is no cause of action for the suit, they prayed for dismissal of the same.

4. The Trial Court framed issues and found that there is no dispute that the Suit property is an ancestral property and the first defendant also admitted the same in his evidence. Ex.A1, Birth Certificate of the plaintiff, which shows that the plaintiff was born to Annavi and Pazhaniammal on 11.06.1952 was not disputed as fraudulent one. But, the first defendant in his evidence has stated that there are four persons in Kalluraipatti Village, having the name, Annavi. The plaintiffs mother, Pazhaniammal was examined as P.W.2. In her evidence, she stated that the first defendant married her and the plaintiff was born to them, which was not disproved by the first defendant in his evidence. The first defendant stated in his evidence that before filing of the suit, he knew that P.W.2, Pazhaniammal belongs to a different caste, which was not pleaded in the written statement.

5. In Ex.B1, Settlement Deed executed by the first defendant, he has stated that if any heirs were born to him and Thirumayee, the fourth defendant, the property will go to his heirs. At the time of execution of the Settlement Deed, Ex.B1, the first defendant did not have any sisters or brothers. When the first defendant has stated in the Settlement Deed that the property would go to his heirs, it becomes an established fact that the first defendant is having legal heirs. In 1993, the first defendant has deposed that the marriage between him and the fourth defendant took place before 45 years, but, in the cross-examination, he has stated that his marriage with the fourth defendant