The substantial questions of law arising in this second appeal are thus:

i. Is the finding of the courts below that the plaint schedule property did not form part of the joint family property of deceased Veluchami Erappa Kounder (hereinafter, "Veluchami") legally correct in the light of the available evidence?

ii. Does the judgment in Chittur Service Co-operative Bank Ltd. v. Kumaran (1992 (1) KLT 216) apply to the facts and circumstances of this case? Does the ratio in the decision have an all pervasive application, regardless of the facts in each case?

iii. Are the findings by the courts below that marriage between deceased Veluchami and his second wife, the 1st appellant, was not legally valid and she is not entitled to any share in his properties correct?

2. Defendants 2 and 4 in O.S.No.124 of 1995 on the file of the Court of Munsiff, Chittur are the appellants. The plaintiff and other defendants are the respondents.

3. Heard the learned counsel appearing for the appellants and respondents 1 to 3.

4. The suit is one for partition with following averments: The properties belonged to Veluchami. He had married defendants 1 and 2. His first wife (1st defendant) died pending the suit. Her legal representatives are the plaintiff and defendants 3 to 5. No issue was born to Veluchami through his 2nd wife (2nd defendant). Plaintiff and other contesting defendants are the children born to Veluchami through the deceased 1st defendant.

5. The properties originally belonged to the family of Kumarachami Kounder. On 26.09.1956, Kumarachami Kounder, and his children, viz., Veluchami and Pazhanichami partitioned the properties as per Ext.A1 partition deed. It is recited in Ext.A1 that the property devolved on Kumarachami Kounder as per a partition in 1098 ME (corresponding to 1933 Christian Era). The recitals in Ext.A1 would clearly show that the properties were ancestral in nature. As per Ext.A1, the plaint items were set apart to Veluchami in A schedule. Veluchami died in the year 1990. After his death, the property devolved on the plaintiff and defendants. As the contesting defendants were not willing to amicably effect a partition, the suit was filed.

6. Defendants 1, 2 and 4 filed a joint written statement opposing the plaint averments. Veluchami obtained the properties by virtue of Ext.A1 partition deed is an admitted fact. It is contended by the defendants that even before Ext.A1 partition, the defendants 3 and 5 were born in the family. They had 2/3 right over the property as the properties set apart to Veluchami were joint family properties. The defendants 3 and 5 are the coparceners born in that joint family. They released their rights in the co-parcenery property in favour of their father Veluchami and mothers, viz., defendants 1 and 2, by virtue of Ext.B1 document in the year 1978. By virtue of Ext.B1 release deed, the property exclusively belonged to Veluchami and defendants 1 and 2. Neither the plaintiff nor defendants 3 and 5 has any right over the property. After the release deed, the joint family ceased to exist and the suit properties are not available for partition.

7. Veluchami and his children incurred a debt as per the decree in O.S.No.221 of 1975 before the Court of Munsiff, Chittur. For discharging the debt, the properties were possessorily mortgaged in the year 1975 in favour of the husband of 4th defendant, by name Thankavelu. Later, some more amounts were received by Veluchami and others from him in order to discharge another decree debt in O.S.No.372 of 1974 of the same court. Therefore by virtue of the possessory mortgage, Thankavelu became the absolute owner of the property, as he prescribed title by adverse possession and limitation. For that reason also, the suit is not maintainable. It is the common case of the parties that they are governed by Hindu Mithakshara Law as modified by custom. So, in the absence of any specific custom pleaded and proved, the principles of Hindu Mithakshara Law will have to be a