Partition of residential house cannot be resisted by illegitimate son born of void marriage.

1. Heard Mr.P. Jagadeesan for the appellants and Mr.D.Sivakumar, Caveator, for the respondents on various dates.

2. Defendants 1 to 3 in O.S.No.35 of 1987 on the file of the Sub Court, Namakkal, are the appellants herein. Respondents 1 and 2 herein, who are sisters, are the plaintiffs in the said suit. The respondents instituted the suit O.S.No.35 of 1987 on the file of the Subordinate Judge, Namakkal for partition and separate possession of their 8 out of 10 shares in the suit properties, against the appellants herein.

3. In this appeal, the parties will be referred to as plaintiffs and defendants respectively for the purpose of convenience. The plaintiffs state that they are the daughters of Nanthan alias Pattamuthuraja through Pappathiammal. The said Nanthan died intestate during the year 1978 and his first wife Pappathiammal died during the year 1983. The plaintiffs further pleaded that the 1st defendant Chinnapillai had married the said Pattamuthu as his 2nd wife and defendants 2 and 3 are respectively the daughter and the son born to the late Pattamuthu and Chinnapillai. The plaintiffs further averred that their father Pattamuthu contracted the 2nd marriage during the lifetime of their mother. The plaintiffs stated that they had an elder brother by name Arasiah who died as a bachelor in the year 1968 and his undivided 1/2 share in the joint family property devolved on their mother. After the death of their father, the remaining 1/2 share devolved upon the plaintiffs mother, plaintiffs and defendants and that they are entitled to 8/10 shares.

4. The defendants filed a written statement as well as an additional written statement contending that the plaintiffs were not the daughters of the deceased Pattamuthu through Pappathiammal, that the deceased Pattamuthu did not have an alias name of Mookiah, that it is not correct to state that the deceased Pattamuthu has a son by name Arasiah through his 1st wife, that the deceased did not have sufficient ancestral properties, that the deceased went to Malaysia and the properties have been acquired only with his earnings at Malaysia, that the plaint scheduled properties 1, 3 and 4 are the self-acquisition of the deceased Pattamuthu, that the plaintiffs are not entitled to any share, that even assuming that Pattamuthu had a*son by name Arasiah as more than 12 years had elapsed, the rights of the said Arasiah got extinguished, that suit items 3 and 4 are residential house properties and hence, the plaintiffs who are residing with their husbands are not entitled to seek for partition, that as Pattamuthu died even before the division, the defendants are entitled to equal share as per the amended provisions of the Hindu Succession Act, and that the plaintiffs are not entitled to any share.

5. After trial, the trial court upheld the plaintiffs’ claim that they are the daughters of the deceased Pattamuthu through his wife Palaniammal, that Pattamuthu had a son by name Arasiah, who died as a bachelor, that the plaintiffs are entitled to 8/10 shares but the plaintiffs are not entitled to seek for division in respect of suit items 3 and 4 till the 3rd defendants seeks for partition. Being aggrieved by the finding rendered by the trial court as well as the judgment and decree of the trial court, the defendants preferred A.S.No.253 of 1993 on the file of the District Court, Salem, while the plaintiffs preferred cross-objections. The 1st appellate court confirmed the findings of the trial court holding that the plaintiffs are entitled to 8/10 shares and the defendants are entitled to the remaining 2/10 shares, and that the deceased Pattamuthu had a son by name Arasiah, who died as a bachelor and his share devolved on his mother and ultimately the plaintiffs are entitled to the same.

6. Both the courts below have concurrently found that the marriage of Pattamuthu with Chinnapillai is void and that the 3rd defendant as well as the 1st defen-dant born out of void marriage are illegitim