JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying to set aside the judgment and decree dated 26.12.2008 made in A.S.No.117 of 2002 on the file of the Additional District Judge, Fast Track Court, Ariyalur confirming the judgment and decree dated 19.02.1992 made in O.S.No.361 of 1993 on the file of the District Munsif Judge, Ariyalur).

1. The case has been heard through video conference) The second appeal against the concurrent finding of the Courts below in the suit for partition carry certain strange facts resulting in intrinsic question of law, which calls for consideration of this Court under section 100 of the CPC.

2. One Thangaraj s/o Padakathu Odaiyar died in the year 1967. He predeceased his parents. He had a brother by name Thangavel and two sisters. His father and mother had landed properties and those properties are the subject matter of the suit.

3. In the year 1993, almost 26 years after the demise of Thangaraj, suit for partition was laid by Dhanabagiyam and her son Velayutham claiming that, they are the wife and son of Thangaraj. According to their plaint, Thangaraj was ardent follower of EVR Periyar. A strong votary of social justice, widow remarriage and women’s right. In the year 1957, he married Dhanbagiyam a widow. It was a suyamariyathai marriage (form of marriage san religious rituals, propagated by EVR Periyar. On introduction of Section 7 A in Hindu Marriage Act through a State amendment in the year 1967, such form of marriage held to be good and valid in law with retrospective effect). The second plaintiff Velayutham was born to them in the year 1958. Padaikathu Odaiyar died in the year 1976 about 17 years prior to the suit. His wife Manikathammal died in the year 1986 about 6 years prior to the suit. (Neither in the pleadings nor through documents the date of death of Thangaraj, Padaikathu Odaiyar and Manikathammal provided). The “A” schedule properties held in the name of Padaikattu Odaiyar are ancestral properties. The “B” schedule properties in the name of Manikathammal are her self acquired properties. Both died intestate, so after their demise the properties has to devolve on their legal heirs. The first plaintiff Dhanbagïyam as wife of the deceased Thangaraj and Velayutham as her son through Thangaraj, sought partition and claiming 1/3rd share in the “A” schedule properties and 1/4th share in the “B” schedule properties.

4. The defendants 1 to 3 are the son and daughters of Padakathu Odaiyar and Manikathammal. The 4th defendant is a purchaser of a house site, which is the 4th item in the “A” schedule. The suit for partition contested by the defendant 1 to 3. The fourth defendant remained exparte.

5. In their written statement, the plaintiffs claim of suyamariyathai marriage between Thangaraj and the first plaintiff denied. The birth of second plaintiff through Thangaraj is denied. According to the defendant, the first plaintiff was wife of one Velayutham. Thangaraj died as bachelor in the year 1967 when he was in service (Government school Teacher). His father Padaikathu Odaiyar, who was alive at that time, received the gratuity and other monetary benefits of Thangaraj. On the death of Padaikathu Odaiyar in the year 1976, the first defendant being the sole surviving male heir inherited the ancestral properties which are items 2 and 3 of the “A” schedule. The first item property in the “A” schedule is the self acquired property of Padaikathu Odaiyar through mortgage. The 3rd item property already sold to the 4th defendant. The two daughters of Padaikathu Odaiyar namely the 2nd and 3rd defendants were married 20, 30 years ago and they had relinquished their right in their parents properties.

6. As far as 'B' scheduled property, Manikathammal during her life time sold away the 2nd and 3rd item property. In the 4th item property, out of 1.45 acres she had only 1.04 acres. Remaining 41 cents was in the name of Padaikathu Odaiyar. The said 41 cents was sold out in th