The main legal point established in the judgment is that under Section 16 of the Hindu Marriage Act, any child born through a form of marriage shall be legitimate, and the lack of proof of marriage between Ponnaan and Sangarammal led to the conclusion that respondents 1 and 2 were not legitimate children of Ponnaan and therefore not entitled to claim any share in the property.

1. The plaintiff in O.S. No.530 of 1985 on the file of the Principal Sub Court, Coimbatore is the deceased appellant. The plaintiff filed a suit for partition of his 5/8th share in the suit properties and the Trial Court granted the decree of 1/6th share in the suit property and aggrieved by the same, this First Appeal is filed.

2. The case of the plaintiff as seen from the plaint was as follows:

Ponnaan was the father of the plaintiff and Chinnammal who was arrayed as eighth defendant, was the mother. The third defendant was the brother of the plaintiff. Defendants 1 and 2 were born to Ponnan/the father of the plaintiff through his concubine Sankarammal. The suit properties were the joint family properties in the hands of Ponnaan and he died on 24.09.1984 and Ponnaan had another daughter and she died leaving the ninth defendant as a legal heir and therefore on the death of Ponnaan, plaintiff became entitled to 5/8th share and therefore the suit was filed for partition of 5/8th share.

3. Defendants 1 and 2 filed the statement that defendants 4 to 7 are the tenants in Door No.15/4 and defendants 1 and 2 are the legitimate children of Ponnaan and Sangarammal and Ponnaan married Sangarammal/the mother of defendants 1 and 2 and the mother of the plaintiff/appellant Chinnammal, divorced Ponnaan and married one Somasundaram and therefore defendants 1 and 2 are the legitimate children of Ponnaan through his legitimate wife Sangarammal and the properties were the self acquired properties of Ponnaan and therefore, the plaintiff was not entitled to the relief prayed for.

4. The third defendant filed his statement admitting that he and the plaintiff were the children of Ponnaan and Chinnammal/the eighth defendant, who was the legally wedded wife of Ponnaan and Ponnaan got the properties from his father and as Ponnaan was having illicit relationship with Sangarammal, the legally wedded wife of Ponnaan viz., Chinnammal was living separately and defendants 1 and 2 were not the legitimate children of Ponnaan and the properties were the self acquired properties of Ponnaan and he gifted the properties to the third defendant.

5. On the basis of the pleadings, the Trial Court framed the following issues:

1) Whether the plaintiff is entitled to claim partition, if so, whether the plaintiff is entitled to 5/8th share?

2) Whether the plaintiff is not entitled to claim any partition for the reasons stated in the written statement of D1?

3) Whether defendants 4 to 7 were not liable to render any accounts as they are not tenants?

4) Whether the third defendant relinquished his right of share in favour of defendants 1 and 2?

5) Whether the suit is barred for non-joinder of necessary parties namely Sangarammal and Gomathy?

6) To what relief?

6. The Trial Court tried issue Nos.1 to 4 and held that the plaintiff was the son of Ponnaan and Chinnammal and there was no legal marriage between Ponnaan and Sangarammal and therefore defendants 1 and 2 were not born to Ponnaan through lawful marriage and the plaintiff has not relinquished his right to his share in favour of defendants. The Trial Court further held that there was no proof that Door No.15/3 was possessed by Ponnaan and therefore in respect of Door No.15/3, the plaintiff was not entitled to any relief and in respect of Door No.15/4, the plaintiff was entitled to 1/6th share and the defendants 4 to 7 who are the tenants, have vacated and therefore, the plaintiff was not entitled to claim any relief against defendants 4 to 7 and the suit was not barred for non-joinder of necessary parties and the plaintiff was entitled to 1/6th share in respect of Door No.15/4. Aggrieved by the same, the present appeal is filed.

7. Mr.V.Nicholas, learned counsel appearing for the appellants submitted that the Court below, having held that the suit property was the separate property of Ponnaan, ought to have granted preliminary decree in respect of ¼ share in favour of the plaintiff and erred in passing