Ramanujam, J.- The plaintiffs in O. S. No. 69 of 1960 on the file of the Sub-Court, Coimbatore, are the appellants in this appeal. They filed the suit for partition and separate possession of their alleged 3|10th share of A and B schedule items and for past mesne profits at the rate of Rs. 500 and future mesne profits at the rate of Rs. 2,400 per annum from the date of suit till delivery of possession, or in the alternative, for possession of the properties equal in extent and value to that of the properties set out in the will dated 2nd May, 1949 executed by one Palaniswamy Nadar in favour of the first plaintiff. The first and second plaintiffs claimed respectively to be the son and fourth wife of the said Palaniswamy Nadar who died on 5th January, 1960 and the suit came to be filed on that basis. The first defendant is the third wife of Palaniswamy Nadar and defendants 2, 3 and 4 are his sons through the first defendant. The fifth defendant is the father of the first defendant and sister’s husband of Palaniswamy Nadar. Defendants 6 and 7 are the grandsons of Valliammal, Paliniswamy’s maternal aunt and also the sons of his brother, Mounaguruswami. The 8th defendant was impleaded as he was claiming certain rights as usufructuary mortgagee from Palaniswamy Nadar over one item. Palaniswamy got divided from his brothers and sisters by partition deeds dated 3rd August, 1955 and 6th March, 1959 and he died possessed of the properties set out in Schedules A and B to the plaint. Parts I and II of Schedule A to the plaint are the lands and houses respectively left by the deceased Palaniswamy. Part I and Part II of Schedule B are outstandings and movables respectively left by him.

The plaintiffs claim for a share was denied by the contesting defendants 1 to 4 and they contended that the second plaintiff has not been married to the said Palaniswamy and that she was only his concubine. They also alleged that so far as the particular part of the country where they reside is concerned in the Nadar community to which they belong, there was an immemorial custom prohibiting a second marriage while the first subsisted, that therefore the alleged second marriage of Palaniswamy with the second plaintiff would be quite improbable and that in any event it would be invalid in view of the said custom even if the marriage had in fact taken place. They also denied the validity of the will said to have been executed by Palaniswamy in favour of the first plaintiff on 2nd May, 1949.

The fifth defendant practically adopted the defence set out by defendants 1 to 4. Defendants 6 and 7 did not contest the suit but remained ex parte.

The 8th defendant claimed a usufructuary right over item E of A schedule. He contended that Palaniswamy received an advance of Rs. 2,000 from him and agreed on 10th October, 1959, to execute a usufructuary mortgage of the said item for Rs. 5,000 after receiving the balance, that he died without executing the mortgage and that he was constrained to file a suit O.S. No. 72 of 1960 on the file of the District Munsif of Dharmapuram for specific performance. He also stated that he was not a necessary party to the present suit. The trial Court took up for consideration inter alia the following substantial issues:-

(1) Whether the second plaintiff is the legally wedded wife of late Palaniswamy Nadar and whether the first plaintiff is the legitimate son of Palaniswamy Nadar ?

(2) Whether the special custom preventing a valid second marriage pleaded by the defendants 1 to 4 is true and valid ?

(3) Whether the will dated 2nd May, 1949, said to have been executed by Palaniswamy Nadar was true and valid and if so, whether the first plaintiff is entitled to substituted properties in lieu of the properties covered by the will as claimed by the plaintiffs, and

(4) What are the properties available for partition in the event of the plaintiffs’ claim being upheld ?

The trial Court considered the main issue as to the alleged marriage of the second plaint

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