Das Gupta, J. - (1.) Thirteen-month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father V. R. Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendants 2 to 10. His case is that Padmavathi and Sadagopa were validly married on June 24, 1948 and of that marriage he was born. The main contention of the contesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa's son.
(2.) On both these points the Trial Court found the plaintiff's case proved and rejected the defence pleas. At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa did take place that was not a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra. The Trial Court was of opinion that Padmavathi was a Brahmin, and as admittedly Sadagopa was a Shudra, the marriage would be invalid according to the Hindu law as it stood before the Hindu Marriages Validity Act, 1949. It held however that the position had been entirely changed by S. 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and not to the caste to which Sadagopa belonged the marriage is valid under the existing law. The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected. In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. Some other directions were also given in the decree, with which however we are not concerned.
(3.) On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathsalam was the issue of that marriage, being born of Padmavathi to Sadagopa. The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa. Assuming however for argument's sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act. 1949, and so, the plaintiff would have all the rights of legitimate son vis-_is the coparcenary to which his father belonged. The validity of the Act was unsuccessfully challenged. Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Against this decision of the High Court the present appeal has been filed by the defendants with special leave.;