R. THIRUMALAI NAICKER BY HIS DULY CONSTITUTED AGENT V.S. GOVINDARAJA NAICKER Vs. ETHIRAJAMMAH AND ORS.

JUDGEMENT

(1.) THIS suit relates to the succession to the properties of one Thiru -vengada Nayakar who died on the 21st March, 1945. The plaintiff claims as his divided brother on the ground that the deceased did not leave any nearer heir like widow or child. The first defendant claims to be the second wife of the deceased and defendants 2 and 3 claim to be the son and the daughter respectively of the deceased by the first defendant. The defendants put forward an alternative case that even if the first defendant was not the lawfully married wife of the deceased, she was in any event his permanently kept concubine and the second defendant was the son born to the deceased by the first defendant and therefore as an illegitimate son he would be entitled to succeed to his putative father. It is obvious that the plaintiff's suit must fail if either case of the defendants is established.

(2.) ISSUES 1 to 4 raise questions which are really necessary for the disposal of the suit. Issues 1 and 2 relate to the plea of a lawful marriage set up by the defendants "while issue 3 relates to the case of exclusive concubinage set up by them.

(3.) THE first defendant's case is that, within two months after the death of her husband Kolandavelu Nayakar, she married Thiruvengada Nayakar and since the date of the marriage lived with him as his wife and bore him four children of whom two, namely, defendants 2 and 3 survive. According to the first defendant, the ceremony of marriage which was gone through was not presumably the usual marriage ceremony, but a ceremony which consisted in tying what is called Nadu veetu thali according to a custom among Nayakars. The plaintiff firstly denies the factum of marriage and further pleads that the alleged ceremony, even if it took place, is no form of legal marriage. In paragraph 11 of the plaint a further contention is put forward, namely, that the first defendant does not belong to a community, in which re -marriage is permitted by custom and therefore she is not the legally married wife of Thiruvengada Nayakar. This contention is obviously untenable because, after the Hindu Widows' Re -marriage Act, it is not necessary to resort to custom to validate the re -marriage of a Hindu widow. It is not pleaded that there is a custom which invalidates a marriage permitted by Statute even assuming such a custom can ever be upheld by a Court. This contention can therefore be disregarded in limine.