K.S. HEGDE, J.

(1) SOME of the defendants in the suit have brought this appeal after obtaining certificate under Article 133 (1) (a) of the Constitution. The suit was brought by one Kochi for partition and possession of an half share in the suit properties on the strength of her title to the same. Her case was that the suit-schedule properties were owned by two brothers by name lttiri and lttaman; each one of them had a hall share of those properties; they were tenants in common; after the death of lttiri she became entitled to his share. The suit was resisted by the defendants on two grounds namely, (1) that the plaintiff had no title to the suit properties and (2) that even if she had any title, it was lost by ouster. The trial court accepted the defendants case and dismissed the suit. In appeal the High court of Kerala partly allowed the plaintiffs claim. It came to the conclusion that in respect of some of the items mentioned in the plaint-schedule, lttiri and lttaiman were co-owners and lttiris share after his death devolved on the plaintiff. As regards the other properties included in the plaint-schedule, the High court came to the conclusion that they were of the exclusive ownership of lttaman. Therefore the plaintiff cannot claim any share therein.

(2) AGGRIEVED by that decision some of the defendants have brought tins appeal.

(3) WE shall first take up the question as to the plaintiffs title to the properties decreed in her favour by the High court. It was not disputed before us that lttiri and lttaman were co-owners of those properties during their life time. It was also not disputed that Kochi, the plaintiff in the suit was the daughter of lttiri through his wife Kunji but her claim is resisted on the ground that she had an elder brother by name Ayyappankutty at the time of the death of her father and therefore lttiris share devolved on Ayyappankutty. Hence the plaintiff is not entitled to claini the same. The essential question for decision is whether Ayyappankutty was the brother of the plaintiff. The plea advanced on behalf of the defendants is that lttiri and his brother lttaman had a common wife by name Kurumba and through her the two brothers got a son by name Ayyappankutty. Sometime after the birth of Ayyappankutty, lttiri took Kunji as his wife. Thereafter Kurumba became the exclusive wife of lttaman. Hence Ayyappankutty was the common son of lttiri and lttaman. That being so under the customary law governing the parties, Ayyappankutty was the sole heir to the estate of lttiri. The plaintiff denied these allegations. According to her Kurumba was not the wife of lttiri. She was the wife of lttaman and therefore Ayyappankutty was not the son of lttiri.

(4) THE trial court held that Kurumba was the common wife of Ittiri and lttaman and Ayyappankutty was the son of lttiri and lttaman through Kurumba whereas the High court came to the conclusion that Kurumba was the wife of lttaman alone and Ayyappankutty was the son of lttaman through Kurumba. We have to decide which one of these two conclusions is the correct one. It is not denied that if Ayyappankutty is not the brother of the plaintiff, she was solely entitled to the properties left behind by lttiri.

(5) FOR coming to the conclusion that Ayyappankutty was the son of Kurumba through lttiri and lttaman, the trial court relied on certain circumstances. The first circumstance relied on is that in the community to which the parties belong, there was a custom permitting brothers taking a common wife; and further admittedly Ayyappankutty and his younger brother Kandu had taken a common wife by name Malu and their other two brothers Raman and Ittiri had taken one Kochi as their wife; hence that court assumed that it was likely that lttiri and lttaman had taken a common wife. This, in our opinion, is fallacious reasoning. From the existence of the custom in question, it does not follow that lttiri and lttaman bad taken a common wife.