JUDGMENT

K. N. SAIKIA, J. :— This defendants appeal by special leave is from the judgment of the High Court of Karnataka dated 24-1-1979 in regular Second Appeals Nos. 522/1973 and 591/1973 which arose out of the following facts.

2. Mallappa Kulkarni had two sons Veerappa and Gurappa. Veerappa is survived by his son Lingappa. Gurappa, a railway employee, married Channavva (first wife) on 16-2-1928 but finding her issueless and sending her to her parents village, he married in 1935 his scond wife Chinnavva who bore him two daughters Shakuntalabai and Annapoornavva. Channavva (first wife) however used to pay occasional visits to Gurappa. Chinnavva (second wife) died in 1943 whereafter Gurappa is said to have married Nilavva. Gurappa retired in 1961 and settled permanently at Hubli constructing the suit house and himself occupied a part and let out the other part on rent. After the death of Gurappa on 29-11-1976 his issueless first wife Channavva demanded 1/3 share in his moveable and immoveable properties, but finding it difficult to acquire her share sold her right to 1/3 share to Lingappa son of late Veerappa on 29-3-1967 for Rs. 5,000. The other heirs having rejected Lingappas request for partition he instituted O. S. No. 387/1968 in the Court of Additional Munsif, Hubli impleading Channavva, Shakuntalabai, Annapoornavva and Nilavva (describing her as having illegal connection with deceased Gurappa) as first, second, third and fourth defendants, respectively, for partition of 1/3 share in the suit house and the moveable properties, and for possession thereof. The first defendant supported the case of the plaintiff; the other defendants contested the suit and averred that the fourth defendant was lawfully married wife of Gurappa. On the pleadings the following issues, inter alia, were settled :

"(1) Whether the plaintiff proves the execution of the sale deed by defendant No. l?

(2) Whether the 1st defendant proves that she had valid title to the suit property and the alienation by her in favour of the plaintiff is valid and legal?

(3) Whether the plaintiff has derived any valid title by virtue of the sale deed in his favour?

(4) Whether the defendant No. 4 proves that she is the legally wedded wife of the deceased Gurappa?"

3. On 13-1-1971 the trial Court passed a preliminary decree for partition of 1/3 share of Gurappas properties in the hands of defendants 2 to 4 by metes and bounds. The second, third and fourth defendants appealed to the Civil Judge at Hubli impleading the plaintiff and the first defendant as respondents in regular Appeal No. 31/1971 and the learned Civil Judge by his judgment dated 21-2-1973 confirmed the decree only modifying it to the extent of 1/6 share instead of 1/3 share holding the fourth defendant to be legally married wife of Gurappa. The second, third and fourth defendants appealed therefrom in R.S.A. 591/1973 and the plaintiff appealed in R.S.A. 522/1973. The High Court by the impugned judgment dated 24-1-1979 allowed the plaintiffs appeal R. S. A. No. 522 restoring the decree of the trial Court for 1/3 share and dismissed R. S.A. 591/1973 holding that the fourth defendant was not legally married wife of Gurappa. Hence this appeal by defendants two and three.

4. Mr. R.B. Datar, the learned counsel for the appellants, stating that the case hinges on the question of validity of fourth defendants marriage, submits that the High Court while holding that the fourth defendant was not legally married wife of Gurappa overlooked vital evidence on record in proof of her customary Udiki marriage with Gurappa who himself declared her as his wife wherefore she earned family pension after her husbands (Gurappas) death. Mr. S. S. Javali the learned counsel for the respondents submits that there was no sufficient evidence to establish the custom of Udiki marriage and at any rate no custom to support the dissolution of marriage of the fourth defendant with her previous husband Gurulingappa was pleaded or proved. Mr. D