JUDGMENT

The appellant herein is the fourth defendant in the suit O.S No. 308 of

2007 filed by the first and second respondent herein/plaintiffs for the relief of declaration to declare the plaintiffs and the fourth defendant are legal heirs of the deceased Karuppana Gounder and other consequential relief.

2. The brief facts of the case are as follows:

The plaintiff's father Karuppana gounder had two wife Nallamal and Ponnathal, the plaintiffs and one deceased Nallappan are children born through second wife Nallamal and fourth defendant born through his father's first wife Ponnathal. Their father Karuppanna Gounder died on 24.12.1978 leaving behind plaintiffs and the fourth defendant as legal heirs. The suit property described in plaint schedule is absolute property of their father Karuppana Gounder in which all of them have equal share and not enjoyed due to misunderstanding with fourth defendant. Therefore, the plaintiff approached the Revenue Authorities/defendants 1 to 3 in order to obtain the legal heir certificate and the same was refused by them due to objection raised by the fourth defendant. Hence the suit.

3. The defendant one, two and three the revenue official raised formal objections. The objections of the fourth defendant is that she is the only legal heir of the late Karuppana Gounder and his mother Ponnamal. when the first marriage was alive and the second marriage of the Karuppanna Goudner with nallamal is invalid under law thereby plaintiff are not legal heirs of the deceased karuppanna gounder. She prays to dismiss the suit.

4. Before the Tril Court two issues were framed, on the side of the plaintiff P.W.1 and 4 were examined and documents Ex.A1 to A3 were marked and defendant not examined. After perusing the oral and documentary evidence the Trial Court concluded that plaintiffs are the children of Karuppanna Gounder's second wife Nallamal and the fourth defendant born through first wife Ponnamal and the children born out of second marriage is entitled to claim legitimate share under Section 16 of Hindu Marriage Act about the second marriage the Witness clearly deposed that karuppana Gounder married Nallamal said fact also known to fourth defendant accordingly the Trial Court decreed the suit in favour of the plaintiff as prayed for.

4. Challeging the said findings the fourth defendant preferred an appeal in A.S 20 of 2011 wherein the lower appellate Court independently analysed facts and evidence available on record finally held that the plaintiffs are the Children born to second wife of karuppanna Gounder and they are also entitled to claim share in the properties of the Karuppana Gounder and both wife of the Karuppana Gounder lived jointly and the children born out of second marriage also entitled to claim legitimate share as legal heirs of the Karuppana Gounder thereby dismissed the appeal and confirming the findings of the Trial Court.

5. Challenging the concurrent findings of the Court below the fourth defendant preferred this second appeal by contending that both the Court below failed to take note of the fact that though children born out of void or voidable marriage can be declared as legitimate children provided they are able to prove the marriage but in the present case alleged marriage was not at all proved inspite of that their suit was decreed in favour of the plaintiff as such is invalid under law. Furthermore, under Section 34 of Specific Relief Act court should not make any declaration where the plaintiffs being able to seek further relief than the declaration but omits to do so. Besides the Court ought to have seen that deceased Karuppana Gounder had already married one Ponnathal mother of the appellant when she was alive and their marriage in subsistence in such circumstances the marriage with Nallamal will not confer any right on the plaintiffs but Court below granted relief in favour of the plaintiff as such is unjust and liable to be set aside.

6. This Court admitted the appeal with the fol