Judgment :- 1. This appeal is filed by the plaintiff as appellant against the judgment and decree dated 30.8.1983 made in O.S. No. 27 of 1982 on the file of learned Subordinate Judge, Periyakulam. 2. The facts leading to the filing of the suit by the plaintiff against the defendants are as follows:— The defendants 1 and 4 are the legally wedded wives of late V.M. Palaniappan Chettiar and the said marriages had taken place prior to 1948. The plaintiff is the eldest daughter of late V.M. Palaniappan Chettiar through the 4th defendant, defendants 2 and 3 are two other daughters of late V.M. Palaniappan Chettiar through the first defendant. Late V.M. Palaniappan Chettiar amassed a good deal of wealth b y doing business in Automobiles and sales of cars and died on 22.1.1982 leaving his two wives and children born to them namely the plaintiff and defendants. The heirs of Palaniappan Chettiar succeeded to his estate in equal shares. The plaintiff is entitled to 1/4th share in the properties described in the schedule while the defendants 1 and 4 will get one such share as widows of Late V.M. Palaniappan Chettiar. Taking advantage of the absence of the plaintiff, the defendants are scheming to exclude the plaintiff to get a share in the suit properties. The defendants 1 to 3 along with the husbands of defendants 2 and 3 are making every effort to secrete the movable properties like jewels, bank deposits and other movables worth about several lakhs of rupees. The plaintiff, who is deemed to be in joint possession of the suit properties, has no other alternative except to come forward with the suit for partition. Therefore the plaintiff has claimed partition and separate possession of the suit properties in to 4 equal shares and to allot one such share to her, apart from deciding the future mesne profits to be paid to her under Order 20, Rule 12, C.P.C. 3. The first defendant supported by defendants 2 and 3, are resisting the suit claim on the following grounds:— The plaintiff is not the daughter of Late V.M. Palaniappan Chettiar. Nqr was she born to him through the 4th defendant. The 4th defendant is also not the legally wedded wife of late V.M. Palaniappan Chettiar. The first defendant supported by defendants 2 and 3, are resisting the suit claim on the following grounds:— The plaintiff is not the daughter of Late V.M. Palaniappan Chettiar. Nqr was she born to him through the 4th defendant. The 4th defendant is also not the legally wedded wife of late V.M. Palaniappan Chettiar. The 4th defendant was the wife of one S. Narayanasamy Chettiar of Bodinayakanur and the plaintiff was born to him through the 4th defendant on 22.9.1953. The 4th defendant and Narayanasamy fell out while the plaintiff was aged nine months and the 4th defendant, along with the plaintiff, left the company of Narayanasamy by executing a release deed on 1.6.1954. Thereafter the 4th defendant began to live with late V.M. Palaniappan Chettiar as concubine from the beginning of 1956 and no child was born to him through the 4th defendant at any time thereafter. The plaintiff, along with her mother, was living under the protection of late V.M. Palaniappan Chettiar. Since the marriage of the second defendant who is the daughter of late V.M. Palaniappen was to be celebrated by late V.M. Palaniappan Chettiar and the first defendant and since the plaintiff was also of marriageable age, late V.M. Palaniappan Chettiar had agreed to celebrate the marriage of the plaintiff along with his daughter, the second defendant. The celebration of the above said marriage by late V.M. Palaniappan Chettiar will not entitle the plaintiff to claim that she is the daughter of late V.M. Palaniappan Chettiar. The plaintiff and 4th defendant are not the heirs of late V.M. Palaniappan Chettiar and therefore they are not entitled to claim any share in the plaint A and B schedule properties, claiming to be in joint possession of the said properties. Items 3, 5 and 7 in B schedule properties are not in existence. The first item of B schedule property is a condemned car bearing Registration No. MDA 5007. The 4th item of properties belongs to the defendants 1 to 3 as Sridhana and separate properties. The 6th item of B schedule property is not partible. The 4th defendant had also left the company of late V.M. Palaniappan Chettiar, after celebration of the marriage of the plaintiff. The 4th item of properties belongs to the defendants 1 to 3 as Sridhana and separate properties. The 6th item of B schedule property is not partible. The 4th defendant had also left the company of late V.M. Palaniappan Chettiar, after celebration of the marriage of the plaintiff. The first defendant is the wife of late V.M. Palaniappan Chettiar and defendants 2 and 3, the daughters of late V.M. Palaniappan Chettiar, are alone the heirs of late V.M. Palaniappan Chettiar entitled to the properties left by bin. It is under the said circumstances, the defendants 1 to 3 have contented the suit, pleading to dismiss the same. 4. The fourth defendant remained ex parte. 5. After considering the material evidence placed before the trial Court, the trial Court has come to the conclusion that the 4th defendant is not the wife of late V.M. Palaniappan Chettiar and she is the wife of Narayanasamy Chettiar, that the plaintiff is not the daughter of late V.M. Palaniappan Chettiar, that the plaintiff is not entitled to claim 1/4th share in the suit properties as claimed by her, even though all items of B schedule properties are available for partition and on the above said findings, the trial Court dismissed the suit filed by the plaintiff, but without costs. Aggrieved at the judgment and decree dated 30.8.1983 made in O.S. No. 27 of 1982 on the file of the learned Subordinate Judge, Periyakulam, the plaintiff/appellant has come forward with this appeal. 6. The points for determination are:— 1) Whether the plaintiff was born to late V.M. Palaniappan Chettiar, through the 4th defendant and whether the 4th defendant is the legally wedded wife of late V.M. Palaniappan Chettiar? 2) Whether the plaintiff is entitled to partition and separate possession as prayed for in the suit? 3) Whether the plaintiff is entitled to future mesne profits to be decided under Order 20, Rule 12, C.P.C.? 7. Points 1 to 3:— The plaintiff is the appellant, while the defendants are respondents in this appeal. The plaintiff Smt. Girija was examined as P.W.1 while the first defendant Smt. Saraswathi animal was examined as D.W.2 by the trial Court. Admittedly late V.M. Palaniappan Chettiar married Smt. Saraswathi ammal, the first defendant and has given birth to defendants 2 and 3. It is not in dispute that plaint A schedule property belonged to late V.M Palaniappan Chettiar. The plaintiff Smt. Girija was examined as P.W.1 while the first defendant Smt. Saraswathi animal was examined as D.W.2 by the trial Court. Admittedly late V.M. Palaniappan Chettiar married Smt. Saraswathi ammal, the first defendant and has given birth to defendants 2 and 3. It is not in dispute that plaint A schedule property belonged to late V.M Palaniappan Chettiar. Though there was dispute with regard to the existence of items 1, 3, 4, 5 and 7, apart from disputing the right to seek partition with regard to items 4 and 6 of B schedule properties, the trial Court has come to the conclusion that the above said properties are in existence as belonging to late V.M. Palaniappan Chettiar, and that property will devolve on the heirs of late V.M. Palaniappan Chettiar. The above said conclusion of the trial Court was not seriously canvassed before this Court by the learned counsel appearing for the defendants 1 to 3. Therefore, this Court holds that plaint A and B schedule properties are properties of late V.M. Palaniappan Chettiar and that the above said properties will devolve on his heirs after his death on 22.1.1982 as seen from ExA.9 obsequies Card and Ex. A.10 death Certificate of V.M. Palaniappan Chettiar. 8. The factum of marriage between late V.M. Palaniappan Chettiar and the 4th defendant was seriously disputed by the defendants 1 to 3, apart from disputing the parentage of the plaintiff with late V.M. Palaniappan Chettiar. It is the duty of the plaintiff to establish not only the marriage between her mother the 4th defendant and late V.M. Palaniappan Chettiar, but also to prove that she was born to late V.M. Palaniappan Chettiar through the 4th defendant. Apart from examining herself as P.W.1 to prove the above said factum of marriage and her parentage, she has examined only her husband Thiru. Periyasamy as P.W.2. Except the interested testimony of P.Ws 1 and 2, there is no other evidence to prove the alleged marriage between late V.M. Palaniappan Chettiar and 4th defendant and to prove that she was born to late V.M. Palaniappan Chettiar through the 4th defendant. P.W.1 would admit that her mother is alive and she can produce her mother (4th defendant) before Court for examining her as a witness in this case. P.W.1 would admit that her mother is alive and she can produce her mother (4th defendant) before Court for examining her as a witness in this case. For the reasons best known to her she has not chosen to examine the 4th defendant as a witness to prove that late V.M. Palaniappan Chettiar had married her as his second wife prior to 1948. P.W.1 further would admit that the sisters of the 4th defendant are also alive. She has not chosen to examine the sisters of the 4th defendant also to establish the alleged marriage between late V.M. Palaniappan Chettiar and the 4th defendant. In the above said circumstances the contention raised on behalf of the defendants 1 to 3 that an adverse inferrence has to be drawn against the plaintiff cannot be held as unreasonable one. 9. The first defendant apart from examining herself as D.W.2, has examined one Thiru. Narayanasamy Chettiar as D.W.I in this suit. He would state that the marriage between him and the 4th defendant was celebrated in the year 1952 that he had given birth to a female child on 22.9.1953 through the 4th defendant as seen in Ex. B.2 birth extract, and Ex. B.4 Certificate of Birth issued by Bodinaickanur Municipality. A perusal of Ex. B.2 and B.4 would disclose that the names of D.W.1 Thiru. Narayanasamy and the 4th defendant Kamalam as father and mother apart from showing the date of birth of the female child on 22.9.1953, at No. 8/163 D Subramaniyasamy Koil North Street, Bodinaickanur were shown. There is no reason to disbelieve the extracts or certificates issued by the Public Authority in the light of the evidence given by D.W.I. 10. The evidence of D.W.I further would disclose that he and the 4th defendant lived as husband and wife for a year after giving birth to female child as mentioned above and thereafter there was strained relationship between them that at the instance of the 4th defendant they decided to separate themselves, for which the 4th defendant had executed a Registered Release Deed as seen in Ex. B.3 dated 1.6.1954, in favour of D.W.I Thiru. Narayanasamy Chettiar that the female child was aged nine months at the time of execution of Ex. B.3 dated 1.6.1954, in favour of D.W.I Thiru. Narayanasamy Chettiar that the female child was aged nine months at the time of execution of Ex. B.3, that the 4th defendant along with-the female child left the company of D.W.1 and lived with the husband of the first defendant, and that the first defendant did not belong to the Devanga Community to which he and the 4th defendant belonged to. A perusal of Ex. B.3 would disclose that the 4th defendant had executed a Registered Release Deed in favour of D.W.1 Thiru. Narayanasamy Chettiar who belonged to Devanga Community for the consideration received therefor by the 4th defendant and that she left the company of D.W.I, along with nine months old female child in her hand at that time. If the date of birth given in Ex. B.2 and B.4 are considered with the age of the female child given in Ex. B.3, it is quite clear that the female child mentioned in Ex. B.2 and B.4 should have been born to D.W.I and the 4th defendant as claimed by D.W.I. The evidence of D.W.2 would disclose that they belonged to some other Chettiar Community and not to Devanga Chettiar Community. The evidence of D.W.3 Thiru. Kamatchi Chettiar, the brother of late V.M. Palaniappan Chettiar would also disclose that the first defendant alone is the wife of late V.M. Palaniappan Chettiar and defendants 2 and 3 are his daughters through the first defendant. It is also evident from the evidence of D.W.3 that there was no marriage between late V.M. Palaniappan Chettiar and the 4th defendant and there was no child born to them even though the 4th defendant was kept as a concubine by late V.M. Palaniappan Chettiar. His evidence further would disclose that the plaintiff was born to D.W.1, Thiru. Narayanasamy Chettiar, during the existence marital relationship between D.W.1 and the 4th defendant before execution of Ex. B.3 dated 1.6.1954. Even though the evidence of D.W.3 may be an interested witnesss evidence, the material evidence refered to above will lead to conclude that the evidence of D.W.3 cannot be ignored. 11. Of course P.W.1 has produced Ex. A.1 and A.2 dated 3.11.1982. Record Sheet of plaintiff maintained by Ariya Vysia primary School, Bodinaickanur, and Pichandy Senior Basic School, Bodinaickanur to establish that she is the daughter of Palaniappan Chettiar. Of course a perusal of Ex. 11. Of course P.W.1 has produced Ex. A.1 and A.2 dated 3.11.1982. Record Sheet of plaintiff maintained by Ariya Vysia primary School, Bodinaickanur, and Pichandy Senior Basic School, Bodinaickanur to establish that she is the daughter of Palaniappan Chettiar. Of course a perusal of Ex. A.1 and A.2, would disclose that she was shown as daughter of Palaniappan Chettiar. The fact remains that the 4th defendant, the mother of the plaintiff was kept as concubine by late V.M. Palaniappan Chettiar after the 4th defendant left the company of her husband D.W.I and during that period the plaintiff was brought up and maintained along with the 4th defendant by late V.M. Palaniappan Chettiar. It is also seen from Ex. A.6 the marriage invitation that late V.M. Palaniappan Chettiar had made arrangements for the marriage of the plaintiff along with his daughters through the first defendant (D.W.2). The reason assigned on the side of the defendants was that the plaintiff was brought up and maintained along with the 4th defendant by late V.M. Palaniappan Chettiar after the 4th defendant had parted with company with D.W.I as wife, that plaintiff was in marriageable age at that time and that the marriage of the daughters of the first defendant was also celebrated at that time. The reason assigned as to why the marriage of the plaintiff was celebrated by late V.M. Palaniappan Chettiar along with his daughters through the first defendant has to be believed if the circumstances of the case are taken into consideration. 12. The learned counsel for the respondents 1 to 3 has brought to the notice of the Court a decision reported in Mohan and another v. Santha Bai Ammal and others 1989-2 L.W. 197, wherein it was held that recitals in Birth Extract Register and School Certificate are not sufficient to establish a marriage, when it is disputed. Therefore the certificate Ex. A.1 and A.2 produced by the plaintiff cannot be relied upon to establish the marriage between late V.M. Palaniappan Chettiar and the 4th defendant and consequently to rely on the entry in the Ex. A.1 and A.2 that late V.M. Palaniappan Chettiar was the father of the plaintiff. P.W.1 had admitted in her evidence that she was born in Municipal Hospital at Bodinaickanur. A.1 and A.2 that late V.M. Palaniappan Chettiar was the father of the plaintiff. P.W.1 had admitted in her evidence that she was born in Municipal Hospital at Bodinaickanur. But she has not chosen to get any extract from the Local Administration Authorities to establish that she was born to late V.M. Palaniappan Chettiar through the 4th defendant. If the materials evidence placed before Court by both sides are taken into consideration, it is quiet clear that the plaintiff has failed not only to prove the marriage between late V.M. Palaniappan Chettiar and the 4th defendant, but also failed to establish that she was born to late V.M. Palaniappan Chettiar through the 4th defendant. 13. The learned counsel for the respondents 1 to 3 has brought to the notice of this Court a decision in K. Munuswami Gounder and another v. M. Govindaraju and 4 others 1995-I L.W. 487, wherein a Division Bench of this Court has held as follows:— “Section 16(1) of Hindu Marriage Act comes into operation only in a case where a marriage is in fact proved to have taken place between two persons but which may be null and void as per the provisions of the Act. Therefore, we have to see, whether the case on hand is a case of marriage having been performed between P and the 1st defendant or whether it is a case of no marriage between these two. If the plaintiff is able to prove that the present is a case of marriage between P and the 1st defendant, he would be entitled to a share in the properties of his father as per Section 16(1) of the Hindu Marriage Act, since, according to the said provision, any child born of a marriage would have been legitimate if the marriage had been valid, and shall be legitimate irrespective of the fact that the marriage is null and void under Section 11 of the Hindu Marriage Act. If the plaintiff fails to prove the factum of marriage, he would not be entitled to any share in the suit properties. The burden of proof falls on the plaintiff to prove the factum of marriage between the 1st defendant and P. His entitlement to a share in the joint family properties entirely depends upon the proof of marriage between P and the 1st defendant. The burden of proof falls on the plaintiff to prove the factum of marriage between the 1st defendant and P. His entitlement to a share in the joint family properties entirely depends upon the proof of marriage between P and the 1st defendant. The Court is not justified in the circumstances of this case in raising the legal presumption of lawful marriage arising out of long cohabitation and repute under Section 114, Evidence Act. Therefore, the conclusion is that no marriage had taken place between P and the 1st defendant. When the factum of marriage is not proved, we have to treat this case as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such relationship cannot get the benefit of Section 16(1) of the Hindu Marriage Act”. 14. It is relevant to point out that in the case cited above, illicit intimacy between Pappammal (P) and the father of the plaintiff for about 2 to 3 years and the fact of the plaintiff born to his father, the first defendant was admitted. The question that was considered in that case was whether the plaintiff was born to Pappammal through the first defendant and whether there was marriage between the first defendant and Pappammal according to Hindu Law, customs and rites at Perumpattu Village. While answering the above said question posed to the Court, the above said principle of law was laid down by the Division Bench of this Court, apart from expressing opinion that the non examination of Pappammal who is the best person to speak about her marriage with the first defendant, is fatal to the whole case. If the principle laid down by the Division Bench of this Court in the case cited above is applied to the facts and circumstances of this case it has to be held that the non-examination of the 4th defendant to prove the marriage between late V.M. Palaniappan Chettiar and 4th defendant is fatal to her case and the plaintiff, as daughter of late V.M. Palaniappan Chettiar through the 4th defendant cannot claim any share muchless 1/4th share in the suit A and B schedule properties. In view of the above said facts plaintiff cannot also claim future mesne profits which was sought to be decided under Order 20, Rule 12, C.P.C. In view of the foregoing reasons this Court agrees with the conclusion arrived at by the trial Court in negativing the relief of partition and mesne profits claimed by the plaintiff in the suit. The points are answered accordingly against the appellant. 15. In fine, the judgment and decree passed by the trial Court are confirmed and the appeal filed by the plaintiff as appellant is dismissed. But in the circumstances of the case there will be no order as to costs.