J U D G M E N T

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

The defendants 1 to 3 in O.S.No.1 of 2012, who had suffered a decree for partition and separate possession of half share of the plaintiff in the suit properties are the appellants.

2. For the sake of convenience, the parties will be referred to as per their rank in the suit.

3. The plaintiff laid a suit for partition and separate possession of his half share contending that the items 1 to 10 of the suit properties belonged to the joint family of Rathinam Nainar and his three sons including the 1st defendant. At a partition that took place between the Rathinam Nainar and his sons on 21.07.1994, the suit properties were allotted to the 1st defendant, father of the plaintiff. The 1st defendant married the plaintiff's mother Amudha on 04.09.1989 and the plaintiff was born out of the said wedlock. It is also pleaded that the 1st defendant drove away the plaintiff's mother from the matrimonial home during the year 1992-1993 and has been living with the 2nd defendant since then and had married the 2nd defendant in the year 1994. The plaintiff would claim that the marriage between the 1st defendant and the 2nd defendant, having taken place during the subsistence of the marriage between the 1st defendant and the plaintiff's mother Amudha, is invalid. It was also pleaded that the 3rd defendant born out of the wedlock between the 1st defendant and the 2nd defendant cannot claim to be a coparcener, as he would succeed only to the properties of his father viz., the

1st defendant as per Section 16 of the Hindu Marriage Act.

4. It is the further contention of the plaintiff that the suit items 11 to

22 of the 'A' schedule and the 'B' schedule properties were purchased out of the income from the suit 'A' schedule properties and as such, they also belonged to the joint family of which the plaintiff had become the coparcener by birth. It was also contended that the settlement deeds executed by the 1st defendant on 29.11.2011 settling items 12 to 15 of 'A' schedule and 'B' schedule properties in favour of the 2nd defendant are invalid. In fact, it is the execution of the settlement deeds which triggered the suit.

5. The 1st defendant filed a written statement which was adopted by the defendants 2 and 3.

6. The 1st defendant would contend that the suit is speculative in nature. He would plead a customary divorce between him and the plaintiff's mother. According to him, the marriage between him and the 2nd defendant that had taken place after the customary divorce is valid. The 3rd defendant would be a legitimate son de hors Section 16 of the Hindu Marriage Act. It was the further contention of the 1st defendant that he was working abroad for more than 25 years and out of his hard earned money, he has purchased the properties in his name. It is also his plea that he was enjoying the properties purchased by him as his separate properties. The claim of the plaintiff that the suit items 11 to 22 of the 'A' schedule and the suit 'B' schedule properties were purchased from the surplus income that was available from the family properties that was allotted to the 1st defendant in the partition that took place in 1994 was specifically denied. It was also claimed that proceedings for divorce between the mother of the plaintiff and the 1st defendant are pending. The sum and substance of the contention of the 1st defendant was that the suit properties at least items 11 to 22 in 'A' schedule and 'B' schedule properties are his separate properties and the plaintiff has no right to demand partition as a coparcener.

7. The 4th defendant remained exparte.

8. On the above pleadings the learned trial Judge framed the following issues:

1. Whether the plaintiff is entitled for ½ share in the suit “A” and “B” Schedule properties?

2. Whether the plaintiff has no right to seek partition of ½ share in “A” and “B” Schedule properties?

3. To what relief the plaintiff is entitled to?

and the issues were recast as