Srinivasan, J. - (1.) The principal question raised in this appeal centres round the conflict of interest between the legitimate and the illegitimate sons of Kumaraswami Mudaliar who died pendente lite, in view of certain dispositions of property, by way of settlement and partition effected by the said Kumaraswami Mudaliar in favour of his illegitimate sons, alleged to be to the detriment of his legitimate issues. The somewhat involved circumstances in which this suit for partition on behalf of the legitimate sons was filed have to be set out at some length.
(2.) Kumaraswami Mudaliar, his brothers Ranganatha and Shanmughakumara, respectively senior and junior to him, and their father, Thirumalaiappan, were members of a joint family. A registered partition was entered into on 18th June 1930, though even in July, 1928, a division in status had been brought about by an agreement in writing. On the date of this partition, none of the three sons had any male issue. It is not in dispute that even by that date, Kumaraswami had four sons and a daughter by his mistress, Pappammal alias Kalyani, the fifth Defendant in the suit. They are Defendants 6 to 9, sons, and Defendant 10, a daughter. It is also not in dispute that Kumaraswami was desirous of entering into a legitimate married life, but at the same time, he was anxious to make an adequate provision for his illegitimate children. On the 28th January 1932, he executed a settlement deed, exhibit B -1, the proper construction of which will arise for consideration in due course, purporting to settle 89 acres of nanja lands and 15 acres of punja lands on his illegitimate issues. On the 2nd of March, 1932, he married one Rajammal, a daughter of his sister, Alamelu. This Rajammal was brought on record as the 21st Defendant in the suit as one of the legal representatives of the deceased Kumaraswami. The Plaintiff, who is the eldest legitimate son of Kumaraswami, was born in October, 1934. Besides him, Kumaraswami had by the date of the suit two other sons and a daughter, who are Defendants 2 to 4 . It is alleged that after about 1938, Kumaraswami and his legally wedded wife, Rajammal, fell out, with the result that the Plaintiff, his brothers and his sister and also his mother were living with their paternal grandmother, the mother of Kumaraswami. Both from the pleadings and the evidence, it appears that Kumaraswami sought to get one of his illegitimate sons married to Shakuntala, daughter of his sister, Alamelu. This proposal was rejected and Kumaraswami in his turn refused to give in marriage his only legitimate daughter, the fourth' Defendant in marriage, to the only son of his sister, Alamelu. In view of these disputes and the feeling the legitimate branch of the family had that Kumaraswami was advancing the interests of his illegitimate children to the disadvantage of his legitimate issues guardianship proceedings were started in the District Court, Tirunelveli, in respect of the legitimate minor daughter, the fourth Defendant. The ground advanced in support of the proceeding appears to have been the apprehension felt by the members of the family that Kumaraswami intended to force an undesirable marriage upon his minor daughter, the fourth Defendant. Kumaraswami appeared in Court and gave an undertaking that he would not put through any marriage except with the concurrence of his wife and his daughter. Contrary, however, to this undertaking, on the 30th April, 1954, he forcibly had a tali tied round the neck of the girl, alleging that it was done by one Thirumalaiappa Mudaliar, and that a valid marriage had thereby been effected. This resulted in petitions before the District Magistrate and the High Court. By an order of the High Court, the girl was removed from the custody of her father. The guardianship proceedings, however, came to an end in or about August, 1955, on the girl attaining the age of 18 years. Thereafter, a suit Original Suit No. 30 of 1954, on the file of the Subordinate Judge, Tirunelveli, was filed seeking a declaration that the alleged marriage of the fourth Defendant was neither true nor valid in law. A decree was granted. The person who figured as the husband filed an appeal in the High Court, but it was finally unconditionally, withdrawn and dismissed. The several members of the family who were living in the family house known as the Dalavoi Hall found it impossible to reside there any longer in view of the attitude of Kumaraswami. Matters having reached such a stage, on the 22nd of May, 1954, the Plaintiff issued a telegraphic notice to his father, Kumaraswami, announcing his intention to be separated from his father. A similar notice was given by the mother of the Plaintiff on behalf of the minor sons.
(3.) On the 26th of May, 1954, Kumaraswami registered a partition deed. This deed purports to have been executed on the 21st of May, 1954, a day prior to the issue of the telegraphies notices, by the Plaintiff and his mother, and by this partition deed, Kumaraswami. as the father, effected a division of his properties into eight equal shares, the sharers, being himself, his four illegitimate sons and his three legitimate sons. The Plaintiff thereupon laid the suit attacking the partition as well as the settlement of the year 1952 executed by Kumaraswami in favour of his illegitimate issues. The Plaintiff contended that the illegitimate sons are not entitled to share in the ancestral estate during the life -time of the father and that the partition claimed to have been effected by Kumaraswami was neither true in fact nor valid in law. The Plaintiff further questioned the truth of two debts claimed to have been incurred by Kumaraswami set out in the impugned partition deed, the debts being a sum of Rs. 40,000 and odd in favour of his mistress, the fifth Defendant, and another sum of Rs. 12,000 and odd in favour of his eldest illegitimate son, the sixth Defendant. The plaint also set out the various items of properties in which the Plaintiff was entitled to share.;