ORDER

1. Leave granted.

2. The dispute in this case arises out of the suit for partition filed by the appellant. The appellants claim to be the son and grandson of one Damodaran. Damodaran was one of four brothers holding ancestral property. It is the common case of the parties before us that of these four brothers two of them, namely, Narayan and Shekharan no longer have any interest in the property. The dispute as to the shares is really between the appellants and the heirs of Achuthan, the third brother of Damodaran.

3. In the written statement filed by the respondents to the appellant's suit for partition, the respondents had denied that Damodaran had married Chiruthakutty, who was claimed to be the mother/grandmother of Appellants 1 and 2. It was also denied that Appellant 1 was the son or that Appellant 2 was the grandson of Damodaran and Chiruthakutty.

4. The trial court came to the conclusion on the basis of the evidence before it that Damodaran had married Chiruthakutty and that Appellant 1 was the son from that marriage. Being aggrieved, the respondents appealed before the High Court. The High Court held that as a matter of law in the absence of proof of marriage of Damodaran