Govinda Menon, J.- Defendants 1, 2 and 8 in O.S. No. 61 of 1950 on the file of the Court of the Subordinate Judge, Tuticorin, appeal against the decree of the learned Judge by which it was held that the properties in Schedules 1 to 4 of the plaint be divided into five equal shares and that plaintiffs 1 to 3 and the first defendant do each get one such part towards the share to which each is entitled and also that the remaining part be divided into two equal halves of which one half be allotted to the share of the fourth plaintiff and the other half be allotted to the share of the second defendant. There were other consequential directions which need not be considered in detail.

The facts which have given rise to this litigation are as follows: One T. Ramaswami Reddiar belonging to the village of Virusampatti, Koilpatti taluk, was possessed of properties which are the subject-matter of the above suit and he died on 13th December, 1949, leaving behind him his second wife, the second defendant, his fourth wife, the fourth plaintiff and children by the deceased third wife and the fourth wife. Ramaswami Reddiar’s first wife, Avudai Ammal had predeceased him and their daughter was Ellammal whose daughter is the fourth plaintiff. The second defendant is childless whereas the first defendant is the son of the deceased third wife of Ramaswami Reddiar. By his fourth wife, the fourth plaintiff, Ramaswami Reddiar had three sons, plaintiffs 1 to 3 and three daughters who are defendants 3 to 5. During the lifetime of Ramaswami Reddiar, he had effected a partition of his properties under Exhibit B-3 dated 24th February, 1947, and it is the plaintiff’s case that the partition was brought about secretly without the knowledge of the fourth plaintiff to defraud plaintiffs 1 to 3 of their legitimate share in the family properties. On that ground the claim was that ignoring the partition deed, the properties of Ramaswami Reddiar should be divided into five equal shares out of which each of his sons should get one share and the other share be divided among the fourth plaintiff and the second defendant being his co-widows.

There were various defences raised which are unnecessary to be detailed at length. One of them was that Exhibit B-3 was a bona fide and fair family settlement by which all the properties were divided by Ramaswami Reddiar himself as the head of the joint family in exercise of his rights as such and on that ground the suit ought to be dismissed. Another important contention raised by defendants 1 and 2 was that the marriage between Ramaswami Reddiar and the fourth plaintiff being incestuous and invalid in law as it is prohibited under the Hindu Law or for the matter that by any recognised system of jurisprudence, the fourth plaintiff had not become the legally wedded wife of Ramaswami Reddiar with the result that plaintiffs 1 to 3 who are born of this marriage are the illegitimate sons not entitled to any partition. It was further alleged that at the time of the so-called marriage, Ramaswami Reddiar was seventy years of age and the fourth plaintiff was aged only about twelve, that they did not live together as husband and wife, that the fourth plaintiff was having illegal intimacy with other people so much so that plaintiffs 1 to 3 and defendants 3 to 5 are the children of adulterous relation who can have no claim to the properties of Ramaswami Reddiar. Such being the case the first defendant being the only legitimate son of Ramaswami Reddiar and the second defendant the only legitimate widow are entitled to the entire properties.

The learned Subordinate Judge framed as many as sixteen issues which reflected the various contentions raised and finding most of the issues in favour of the plaintiffs passed a preliminary decree the substance of which had already been adverted to above.

Aggrieved by that, defendants 1 and 2 and the eighth defendant who is an alienee of some items from the second defendant have preferred the above appeal. The

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