Judgment :- 1. Defendants 1 to 4 and 6 in O.S. No. 207 of 1986, on the file of Subordinate Judges Court, Nagappattinam, are the appellants before this Court. 2. Material averments in the plaint may be stated as follows:— Plaintiff and 5th defendant are the daughter and son of late Pakkirisami Pillai through his second wife Lakshmi. First defendant is his first wife and defendants 2 to 4 are the daughter and sons respectively of late Pakkirisami Pillai through his first wife. Plaintiff being the daughter and defendants 1 to 5 being the wife and children of late Pakkirisami Pillai, are his heirs, entitled to succeed to his properties. Pakkirisami Pillai died on 5-10-1983, his self-acquired properties are detailed in plain t Schedules ‘A’ to ‘F’. Pakkirisami Pillai was a shrewd and enterprising gentleman, earning large income in the Isles and in India. He purchased the suit properties out of his own funds and constructed buildings with his funds. He purchased properties in his name, in the name of his first wife (1st defendant), mother, sister-in-law and his son (4th defendant). Regarding B Schedule items, the same were purchased in the name of his first wife, ‘C’ Schedule properties were purchased in his own name, though the patta stands in the name of his son (3rd defendant). ‘D’ and ‘E’ Schedule properties were purchased by Pakkirisami Pillai in the name of his mother. ‘F’ Schedule property was purchased in the name of 5th defendant. 5th defendant had no status to acquire the property, and till his death, the acquire Pakkirisami Pillai was in possession of that property. 5th defendant never claimed any ownership over the same, and the deceased was taking the income therefrom. After the death of Pakkirisami, the 3rd defendant is receiving a rental income of Rs. 350/- each from F Schedule Items 2(a), (b), and (c). A lawyers notice was issued by plaintiff, for which a reply has been sent that plaintiff is not the daughter of late Pakkirisami Pillai, and that she was the daughter of one Thangavelu. It is averred in the plaint that such a statement is nothing but defamatory. 3. In the written statement filed by defendants 1 to 4, they denied the status of the plaintiff as the daughter of deceased Pakkirisami Pillai. They also said that the plaintiffs mother was never married by the deceased. It is averred in the plaint that such a statement is nothing but defamatory. 3. In the written statement filed by defendants 1 to 4, they denied the status of the plaintiff as the daughter of deceased Pakkirisami Pillai. They also said that the plaintiffs mother was never married by the deceased. They further said that even if there was such a marriage, plaintiff and the 5th defendant can be treated only as illegitimate children. They further said that B to F Schedule properties never belonged to the deceased and, therefore, not partible. 4. A reply was also filed by plaintiff, reiterating the plaint allegations, and also claiming partition. 5. Trial court, on the above pleadings, took detailed evidence. On the side plaintiff, Exs. A-1 to A-46 were marked. On the side of defendants, Exs. D-1 to D-11 were marked. P.Ws. 1 to 7 were examined on the side of plaintiff, and D.Ws. 1 to 4 were examined on the side of defendants. 6. Trial court upheld the claim of plaintiff on all counts. It held that plaintiff and 5th defendant are the children of deceased Pakkirisami, born in the second marriage with Lakshmi. It further found that even the deceased and the appellants were treating the plaintiff and 5th defendant as children of deceased Pakkirisami in the lawfully wedded marriage. Marriages of plaintiff and 5th defendant were arranged by the deceased. They were recognised as the children of deceased through Lakshmi. Various photographs filed on the side of plaintiff were also taken as a piece of evidence, to come to the conclusion that all the family members treated the plaintiff as the daughter of deceased Pakkirisami Pillai. The status of the plaintiff as daughter of late Pakkirisami Pillai was upheld. Consequently, the Court below held that plaintiff is entitled to a decree for partition. Admittedly, the A Schedule Items belong to the deceased. Over the Items, the lower Court said that plaintiff is entitled to a share as prayed for. With regard to B to F Schedule Items, the Court below found that none of the defendants proved their independent rights over those items. Even Benami Transactions Act is not a bar for the plaintiff to agitate the real nature and ownership over this property. Even in respect of those properties, plaintiff is entitled to 1/6th share. In the result, a decree was passed as prayed for. Even Benami Transactions Act is not a bar for the plaintiff to agitate the real nature and ownership over this property. Even in respect of those properties, plaintiff is entitled to 1/6th share. In the result, a decree was passed as prayed for. It is that judgment which is challenged in this Appeal. 7. The main ground of attack by learned counsel for the appellants was that the finding regarding paternity of the plaintiff and 5th defendant requires re-consideration. It is argued that there is no specific pleading regarding the date of marriage of deceased with Lakshmi, and there are also no details about the birth of plaintiff and 5th defendant, nor is there any pleading regarding custom and how the marriage of deceased with Lakshmi was celebrated. In view of lack of pleadings, according to learned counsel, the question whether the plaintiff is a legitimate child of the deceased should not have been considered. The plaint is vague, and it does not give the details which are required under law. Learned counsel submitted that the plaintiff will have to be non-suited. A further contention was taken that even if the plaintiff and 5th defendant are considered to be the daughter and son of the deceased, they can be considered only as illegitimate children. B to F Schedule Items are not liable to be partitioned, and they will have to be excluded. 8. How far the said contentions could be accepted in this Appeal, is the point to be considered. 9. I will first consider the question whether the plaintiff has proved her paternity. If the same is proved, the further question arises as to whether they are legitimate children. 10. It is true that the plaint does not disclose anything about the marriage of deceased with their mother Lakshmi. We must also take note of the fact that even in the plaint, it is admitted that the first defendant is the first wife of deceased Pakkirisami Pillai, and Lakshmi, mother of plaintiff, is stated only as second wife. Taking into account the age of plaintiff, it can be said that the marriage between the deceased and Lakshmi must have taken place some time before 1948. During that time, there was no prohibition for a Hindu governed under Mitakshara Law, to contract a second marriage. Bigamous Marriage Act came into force only 1949. Taking into account the age of plaintiff, it can be said that the marriage between the deceased and Lakshmi must have taken place some time before 1948. During that time, there was no prohibition for a Hindu governed under Mitakshara Law, to contract a second marriage. Bigamous Marriage Act came into force only 1949. Age of the plaintiff is not very much in dispute. I do not think any such contention has been taken in the written statement. Why I am stating this is only to show that there was no prohibition of a person contracting a second marriage even when the first wife was alive. 11. If a marriage was possible, whether, on the evidence on record, the finding of the Court below that plaintiff is the legitimate daughter of the deceased is to be considered. It is here the plaintiff relies on the acknowledgment by defendants themselves that plaintiff is the daughter of the deceased. It is the case of the plaintiff that deceased married his mother at Saigon and when she was about seven years old, herself and 5th defendant were brought to India. They were received by deceased himself and they were residing together in the very same house with first defendant as admitted children. All of them were brought up together by the deceased, educated by him and given in marriage. The material document relied on by the plaintiff is Ex. A-39 where 5th defendant was declared as the son of deceased. There, the father himself has signed and declared that he is the father of the 5th defendant. Nobody has any dispute that 5th defendant and plaintiff are born to the same mother. It is plaintiffs case that through Lakshmi, herself and 5th defendant were born, and their father is deceased Pakkirisami Pillai, Plaintiff was also taken to school by the deceased. Ex. A- 37 is the invitation printed by deceased for the marriage of plaintiff where he has described himself as her father. Exs. A-27 to A-36 are the admitted photographs of plaintiff and the members of family. Ex. A-27 is the photograph of the plaintiff with deceased Pakkirisami. The other photographs were taken at the time of marriage, where she poses himself as the bride. First defendant and some other defendants are also seen in this photo. Exs. A-27 to A-36 are the admitted photographs of plaintiff and the members of family. Ex. A-27 is the photograph of the plaintiff with deceased Pakkirisami. The other photographs were taken at the time of marriage, where she poses himself as the bride. First defendant and some other defendants are also seen in this photo. We must also note that the bridegroom (husband) of plaintiff is none other than the nephew of Pakkirisami. Ex. A38 will show that the deceased was having a permanent Saigon address. 12. It is the case of the defendants that due to sympathy, deceased brought up plaintiff and the 5th defendant, so that they may get good alliance in future. If these was no relationship as alleged by plaintiff, what was the necessity for the deceased to bring them up as his own children. When the deceased himself declares that he is the father, the said statement is relevant under Sec. 32 of the Evidence Act. It is a declaration by the deceased. The S.S.L.C. Book of the 5th defendant can be taken as proof of such a statement. It also amounts to an admission by the deceased that he is the father. The genuineness of the invitation card is not disputed by any of the appellants. They also admit that it was the deceased who gave plaintiff in marriage where he declares that she is his daughter. What is the effect of this statement. Apart from the fact that they are admissions, they are sufficient to hold the legitimacy of the children. The law further presumes that there was a lawful marriage between the deceased and Lakshmi (mother of plaintiff and 5th defendant). 13. As early as in A.I.R. 1927 Madras 733 ( Ravu Sri Krishna Rao v. Raja of Pittapur ), a Division Bench of this Court has occasion to consider the same. The law further presumes that there was a lawful marriage between the deceased and Lakshmi (mother of plaintiff and 5th defendant). 13. As early as in A.I.R. 1927 Madras 733 ( Ravu Sri Krishna Rao v. Raja of Pittapur ), a Division Bench of this Court has occasion to consider the same. This Court held thus:— “When parentage of the plaintiff is challenged, though the burden is initially on him to show that he was the son of his parents, it is shifted on to the defendants as soon as he shows that he has been acknowledged by his parents to be their son and that he has been accepted as such by repute and habit for the last many years, and it would require much clearer and stronger and more reliable evidence on the defendants part to justify a finding against the plaintiffs paternity.” 14. Similar is the case reported in AIR 1933 Lahore 520 ( Kishen Singh v. Sadhu and others ), wherein the Court followed an earlier decision of the Privy Council reported in AIR 1929 P.C. 135 ( Mohabbat Ali Khan v. Mohammad Ibrahim Khan ) and also the decision of our High Court cited supra. In the said decision, it was held thus:— “Where a child establishes the possession of filiation, which is the acknowledgment of the parents and habit and repute, everything such as legitimacy must be presumed in his favour.” In this connection, it may be noted that in the Division Bench judgment of our High Court referred to supra , their Lordships followed an English law and cited with approval the decision of Douglas Peerage case by the House of Lords wherein it was held thus:— “Where a child establishes the possession of filiation, which is the acknowledgment of the parents, and habit and repute, everything must be presumed in his favour, and he cannot be dispossessed of that estate except upon clear, strong and decisive evidence.” 15. In Sarkar on Evidence, 14th Edition (1993), commenting on Sec. 112, the learned Author has also said (at page 1495) that ‘Apart from S. 112 where a child establishes the possession of filiations, i.e. , his parentage has been acknowledged by his parents and accepted by habits and repute, a presumption of legitimacy should be made’. In Sarkar on Evidence, 14th Edition (1993), commenting on Sec. 112, the learned Author has also said (at page 1495) that ‘Apart from S. 112 where a child establishes the possession of filiations, i.e. , his parentage has been acknowledged by his parents and accepted by habits and repute, a presumption of legitimacy should be made’. At page 1496, the learned Author has further said thus:— “S. 12 Civil Evidence Act, 1968 makes an extension in the case of civil proceedings in England by providing that a person adjudged to be the father of a child in affiliation. Proceedings would be deemed to be such unless the contrary is proved whether or not he had offered a defence in that case and whether or not he is a party in this proceeding.” 16. Once the plaintiff proves that the plaintiff was declared or acknowledged her as his daughter and 5th defendant as his son, and the same is recognised by the defendants themselves, and when that declaration has been accepted by the society at large, the defendant cannot thereafter withdraw the admission and contend that the plaintiff and the 5th defendant are not the children of the deceased. It must be further said that the defendants also participated in the marriages of the plaintiff and the 5th defendant. Plaintiff was given in marriage to none other than the nephew of the deceased on the representation that she is the daughter of late Pakkirisami Pillai. It is a declaration of status. It is a matter of reputation. That cannot be simply taken away or withdrawn at the sweet will and pleasure of the appellants, when a demand for partition is made regarding the title of the deceased. It is binding for ever. 17. If plaintiff and 5th defendant are in possession of the declaration, law presumes that they are the legitimate children which implies that there was a legal marriage between the deceased and Lakshmi, and it is for the appellants to prove that there was no marriage or that the marriage was not in accordance with law, or that the same was prohibited by some law. Absolutely no evidence has been let in this regard. The initial burden on the plaintiff stands discharged when he admission of the deceased is produced before Court. No legal evidence has been adduced by the appellants to disprove the same. 18. Absolutely no evidence has been let in this regard. The initial burden on the plaintiff stands discharged when he admission of the deceased is produced before Court. No legal evidence has been adduced by the appellants to disprove the same. 18. Apart from the documentary evidence, oral evidence has also been let in by the plaintiff. That relates to plaintiff, and shows that the plaintiff was brought up after she came to India from Saigon, the proposal of the marriage and the details how the plaintiffs marriage was performed by the deceased. This kind of evidence cannot be lightly brushed aside. If the society recognises a child as the child of a particular individual, and he also declared the child as his, law presumes everything in favour of legitimacy. It is settled law that there is always presumption of legitimate relationship. 19. Learned counsel for the appellants contended that this question may not arise in view of lack of pleadings. I do not think the plaintiff should be non-suited on that ground. When the plaintiff says that she is the legal heir of the deceased, and the defendants have also joined in issue regarding the legitimacy and parentage, it is too much for them to contend that there was no pleading at all. The purpose of pleading is only to give notice to the opposite party regarding the case that is put forward. If the contesting party knows what they have to prove, and what the plaintiffs case is, lack of pleadings will not be construed as fatal. 20. It was held in A.I.R. 1966 S.C. 735 (Bhagwati Prasad v. Chandramaul) thus:— “If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere tact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case” 21. The suit is not one for declaration of status but it is only a suit for partition on the basis of some relationship. Then the only question is, whether the plaintiff is a legal heir and whether her mother was married to the deceased. It is only tracing the history. For such matters, I do not think specific pleadings are necessary. In A.I.R. 1978 S.C. 1201 (Binod Bihari Lal and others v. Rameshwar Prasad Sinha and others), plaintiff pleaded that the property belonged to joint family. He did not give the details as to how it was acquired and when it was acquired. The defendant proved that all these were acquired by the individual and the documents stood in his name. Plaintiff adduced evidence to show that even though the document stood in the individual name of the acquirer, the same was blended with family properties. The question was, whether for blending, specific pleading and issue were necessary. While considering the same, their Lordships held thus in paragraph 3:— “Having appreciated the entire facts and circumstances of the case we think that the pleading that the properties were the joint family properties was sufficient to enable the Court to look into the “evidence of blending which was merely a historical aspect of the question as to how the properties had become joint family properties. The High Court has rightly held that the house at Sadisopore had become a joint family property because of blending in support of which there was ample evidence. We need not repeat what has been stated in the judgment of the High Court in this regard.” My conclusion is supported by the above decision also. When the plaintiff says that she is the legal heir, how she became a legal heir, and whether there was a marriage between her father and mother she is only tracing her history, and that is a matter of evidence. When the plaintiff says that she is the legal heir, how she became a legal heir, and whether there was a marriage between her father and mother she is only tracing her history, and that is a matter of evidence. The argument of learned counsel for the appellants is, therefore, rejected. 22. The lower Court has found that the plaintiff and 5th defendant are children of the deceased and plaintiff was declared entitled to 1/6 share. The finding of the lower Court that plaintiff and 5th defendance are the legal heirs of deceased, is confirmed. 23. ‘A’ Schedule properties admittedly belonged to the deceased. He died intestate. Naturally, in view of my findings, plaintiff will be entitled to 1/6th share over these items. That finding of the lower Court is also to be confirmed. 24. But, in regard to ‘B’ to ‘F’ Schedule properties, I do not think that the evidence on record is sufficient to hold in favour of plaintiff. Admittedly, the properties under B to F Schedules do not stand in the name of the deceased. They stand in the name of either first defendant or defendants 3 to 5. Under what circumstances, the properties were purchased in their names, is not explained by plaintiff. In fact, the plaintiff cannot plead the same in view of her ignorance. If the document does not stand in the name of the real acquirer, what was the intention in purchasing the property in the name of others, is a matter of great importance. Only if the Court finds that the property was purchased benami in the name of others, it can be treated as the property of the deceased. That burden is only on the plaintiff, and she has miserably failed to prove the same. It is found by the Court below that the defendants have not adduced evidence to show that they had sufficient funds to acquire the same. I feel that the lower Court has cast the burden of proof on the defendants, which is perverse. Court below has to assumer that the apparent tenor of the document is the real state of affairs. The veil has to be removed by the person who alleges that the real state of affairs are otherwise. Even if funds were not available with these defendants, it may be assumed that the acquirer intentionally purchased the properties in the name of these persons. The veil has to be removed by the person who alleges that the real state of affairs are otherwise. Even if funds were not available with these defendants, it may be assumed that the acquirer intentionally purchased the properties in the name of these persons. In that case, it amounts to gift. Learned counsel for the respondent No. 1 submitted that an inference of benami can be had from certain circumstances. Learned counsel submitted that during the very same period, when properties were acquired in the name of other defendants, properties were acquired in the name of first defendant also. According to me, finding on such a contention can only be against the respondent. If there was no prohibition for purchasing property in the name of the deceased, what necessitated the deceased, to get the properties in the name of others? No explanation is offered by the plaintiff in that regard. Naturally, the finding of the Court below that the properties under Items ‘B’ to ‘F’ are liable for partition is also to be set aside. 25. In the result, I allow the Appeal in part. I hold that plaintiff and 5th defendant are the legitimate children of late Pakkirisami. I further hold that the entire ‘A’ Schedule items are available for partition. One-sixth share declared by Court below in respect of the plaint A Schedule in favour of plaintiff is confirmed. To that extent, the appeal stands dismissed. 26. But, in regard to the share allotted to the plaintiff in respect of B to F Schedule items, the Judgment of the lower Court is set aside. I hold that those items are not available for partition and plaintiff is not entitled to any share over them. 27. The Appeal is allowed in part as indicated above. Taking into consideration the close relationship between the parties, I direct the parties to suffer their respective costs. The connected C.M.Ps. are dismissed consequently.