( 1 ) THIS appeal is directed against the order dated 23-11-1996 rejecting the prayer of the appellants for the grant of succession certificate on account of the death of Ramesh.

( 2 ) THE first appellant is the wife of late Ramesh and the II and III appellants are the children of first appellant and late Ramesh out of their wed lock.

( 3 ) THE first appellant's marriage took place with late Ramesh on 29-6-1980. Ramesh died on 8-1-1994. He was working as Artisan in KSRTC. He met with an accident on 7-1-1994 as he was hit by BTS bus bearing No. MEF 097 when he was crossing the road. He sustained severe injuries and died on 8-1-1994 at Nimhans Bangalore. Since the dependants were entitled to the benefits which were described in the schedule of the petition, the appellants being the LRs of the deceased applied for the grant of Succession Certificate. This application was numbered in P and SC No. 50/94. This application was contested by respondent No. 1 who also claims to be the wife of late Ramesh. Respondent No. 2 is the mother of the deceased.

( 4 ) FOR the appellants, the first appellant is examined and Exhs. P1 to P13 are marked. For the respondents both RW1 and 2 are examined and Exhs. R1 to R12 have been marked. After the closure of the evidence, the learned Judge has held that it is only respondent No. 2 who is entitled for the succession certificate. He has denied the succession certificate to the appellants on the ground that the first appellant had to obtain the declaration that she is the legally wedded wife of the deceased Ramesh.

( 5 ) MR. Mukkannappa, learned counsel for the appellant submitted that the marriage of the appellant took place on 29-6-1980 and out of this wed lock, the appellants 2 and 3 were born. Respondent No. 1 was not at all the legally wedded wife; she had got married with one Mr. Srinivasamurthy who maintained divorce petition in M. C. No. 159/78 as such even though it is held that respondent No. 1 was residing with the deceased Ramesh, she was not legally wedded wife as the marriage itself was void in view of S. 11 of the Hindu Marriage Act (Hereinafter shall be referred to as the 'act') He also relied upon a decision in the case of Yamunabai v. Anantrao, AIR 1988 SC 644 wherein it is stated as follows :"cl. (i) of S. 5 lays down for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. The plea that the marriage should not be treated as void because such a marriage was earlier recognised in law and custom cannot be accepted. By reason of the overriding effect of the Act as mentioned in S. 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. Such a marriage cannot be also said to be voidable by reference to S. 12. So far as S. 12 is concerned, it is confined of other categories of marriages and is not applicable to one solemnised in violation of S. 5 cl. (i ). Sub-sec. (2) of S. 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by S. 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The provisions of S. 16 also throw light on this aspect. Section 16 (3) prominently brings out the basic difference in the character of void and viodable marriages as covered respectively by Ss. 11 and 12. It is also to be see