JUDGMENT :

(R. Subramanian, J.)

AS No.891 of 2012 is by the plaintiff in OS No.109 of 2010, a suit for partition laid by her claiming 1/3rd share in the suit ‘B’ to ‘E’ Schedule properties.

2. According to the plaintiff, the properties were ancestral properties inherited by the first defendant Damodaran under a Will dated 29.02.1972 executed by his father Varadarasu Kounder. It is the contention of the plaintiff that under the Will Damodaran was given a life estate and the properties were to be taken absolutely by the children of Damodaran on his death. It is the further contention of the plaintiff that one Kanagambaram Ammal, widow of one of the sons of Varadarasu Kounder viz. Ramachandran, was given a life estate in some other properties and on her death, those properties would devolve on Damodharan and Krishnan other two sons of Varadarasu Kounder.

3. It was pleaded that Kanagambaram Ammal also died on 28.09.2011 and therefore, the plaintiff would be entitled to 1/3rd share in those properties also which were shown in Schedule ‘B’ and ‘C’ to the plaint. As regards the properties shown in Schedule ‘D’ and ‘E’, it was the contention of the plaintiff that those properties were acquired out of the income from the ‘B’ and ‘C’ Schedule properties and therefore, they also assumed the character of joint family properties. Though the plaintiff impleaded defendants 4, 5 and 6 in the suit, she described the fourth defendant as the concubine of Damodaran and defendants 5 and 6, who are the children as the children of concubine of Damodaran. According to her, since there was no valid marriage between the fourth defendant and Damodaran, the defendants 5 and 6 would not be entitled to inherit as children of Damodaran.

4. It was also the contention of the plaintiff that the fourth defendant Saraswathi was living with Damodaran even during the subsistence of the marriage between Damodaran and the plaintiff’s mother viz. Thilagavathi, since there was no marriage, defendants 5 and 6 would not be entitled to the benefits of Section 16 of the Hindu Marriage Act.

5. The suit was resisted by the the first defendant Damodaran contending that the suit ‘B’ and ‘C’ Schedule properties are his selfacquisitions, inasmuch as they belonged to his father Varadarasu Kounder and he under the Will dated 29.02.1972 bequeathed it to his children and therefore, those properties cannot assume a character of joint family properties. It was also contended that the suit itself is premature, inasmuch as the plaintiff would not get any right to the properties so long as the first defendant, viz. the life-estate holder was alive. Damodaran also contended that he had married Saraswathi in the year 1976 at the Thiruchendur Temple and she being a legally wedded wife, the defendants 5 and 6 would inherit as his children in view of Section 16 of the Hindu Marriage Act, though a specific reference was not made to Section 16 of the Hindu Marriage Act. The other defendants adopted the written statement of the first defendant.

6. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to A19 were marked. The first defendant Damodaran was examined as D.W.1 and Exhibits B1 to B9 were marked.

7. The learned Trial Judge on a consideration of the evidence concluded that the properties are not ancestral properties since they were bequeathed by Varadarasu Kounder under the Will dated 29.02.1972. As per the recitals in the said Will on the death of Damodaran, his children would take the property. The learned Trial Judge concluded that the defendants 5 and 6 would not be heirs, inasmuch as the marriage between Damaodaran and Saraswathi was not a valid marriage. On the said conclusions, the learned Trial Judge granted a decree for partition in respect of the ‘B’ and ‘C’ schedule properties alone which were covered by the Will with a rider that the plaintiff could seek a final decree after the death of Damodaran. The suit stood dismissed with reference to the other properties.

8. Ag