Defendant if can furnish third party security.

The 3rd defendant, who was brought on record in the trial court as the legal representative of the 1st defendant, is the appellant in this second appeal. The plaintiff and the 2nd defendant are respectively respondents 1 and 2 herein. The 2nd defendant is the alienee from the 1st defendant under Ex.B-1 sale deed, dated 25. 1971. The plaintiff is one minor Ramalingam alias Munusami, by his next friend and mother Singarammal. According to the plaintiff, the 1st defendant who is his father, married the abovesaid Singarammal in 1966 and the suit property belongs to the family of the 1st defendant and the plaintiff. On that footing the partition relief was claimed.

2. But, the defence to the suit is that Singarammal is not the wife of the 1st defendant and that the 1st defendant had only one wife by name Karuppayi and there was no marriage between the 1st defendant and Singarammal and so, the plaintiff is not the son of the 1st defendant and the suit has to be dismissed.

3. The suit O.S.No.1120 of 1974 has been dismissed, accepting the abovesaid case of the defendants and holding that the alleged marriage between the 1st defendant and Singarammal is not true and the plaintiff is not the son of the 1st defendant.

4. However, on appeal by the plaintiff, the lower appellate court in A.S.No.189 of 1978, has allowed the appeal and decreed the suit. Hence, the present second appeal by the 3rd defendant, who is the daughter of 1st defendant through the abovesaid Karuppayi.

5. The learned counsel for the appellants makes the following submissions: While the trial court has given various reasons for holding that there was no marriage between the 1st defendant and Singarammal, the lower appellate court erred in not having gone into the question of factum of the alleged marriage. It only went into the question whether the plaintiff is the son of the 1st defendant. Unless the factum of marriage is proved, there is no scope for the application of Sec.l6(l) of the Hindu Marriage Act. In this connection, he also relied on the decision in Muthayya v. Kamu, (1981 )1 M.L.J. 107 (D.B.). The reasons given by the trial court for finding that the factum of marriage has not been proved, were not at all dealt with by the lower appellate court in its judgment. The plea of the plaintiff and the evidence given by P.W.I the above said Singarammal would amply show that there was no marriage at all between the 1st defendant and Singarammal. Therefore, the learned counsel submits that pursuant to Sec.103, C.P.C., this Court, sitting in second appeal could go into that question regarding the factum of marriage. Further, the lower appellate court also erred in relying on Ex. A-2, the birth extract of the plaintiff to hold that the plaintiff was a legitimate son of the 1st defendant. In this connection he also relied on Sec.35 of the Evidence Act and the decisions in Nagayasami Naidu v. Kochadai Naidu, A.I.R. 1969 Mad. 329: 81 L.W. 436 (D.B.) and Rajambal v. Veeramuthu Udayar, 99 L.W.175 (D.B.). Further, though Ex.B-1 sale deed executed by the 1st defendant in favour of the 2nd defendant-2nd respondent herein in respect of a part the suit property states that he executed the said sale deed on behalf of Munusami, there is no proof that the said Munusami was the plaintiff.

6. The 2nd respondent remains unrepresented.

7. The learned counsel for the 1st respondent-plaintiff makes the following submissions: The factum of the abovesaid marriage need not be proved. The abovesaid Munusami referred to in Ex.B-1 can only be the plaintiff, since the cause title of the suit shows that the plaintiff has also got an alias name Munusami. However, even in Ex.A-3 suit notice dated 26. 1973, the said alias was mentioned and in the reply Ex.A-4 sent by the 1st defendant, there was no repudiation of the said alias name. Further, there is no use merely denying, in Ex.A-4 the factum of the abovesaid marriage. The 1st defendant must have also taken a legal proceeding to es