The court emphasized that children born through a void marriage cannot claim a share on par with the coparcener and held the partition deed null and void as it was executed when the plaintiff was a minor and the distribution of properties was unequal.

1. This appeal is by the defendant in O.S.No.67/97 on the file of Additional Civil Judge (Sr. Dn.), Bidar questioning the legality and correctness of the judgment and decree dated 30.09.2005 passed therein decreeing the suit filed by the respondent-plaintiff and holding that the plaintiff is entitled for ½ share in the suit schedule properties and further declaring that the partition deed executed by the defendant dated 13.7.1987 is null and void and not binding on the plaintiff.

2. There is no dispute that the respondent-plaintiff is the son of the appellant-defendant through his first wife. It is also not in dispute that during the lifetime of the first wife, the mother of the plaintiff, the appellant-defendant took the second wife Smt.Vimala Bai and through her he has three sons and a daughter. Respondent-plaintiff filed the suit seeking partition and separate possession of his half share in the suit schedule properties contending that all the suit schedule properties are properties of joint family comprised of himself and his father, the defendant, that the defendant in order to deprive the plaintiff of his legitimate share created a partition deed bearing No.1542/84-85 during the minority of the plaintiff and the step mother representing him as his guardian and later in place of the said partition, another partition deed dated 13.7.1987 was brought into existence even when the plaintiff was minor; that the said document is a forged and fabricated document and the distribution of the properties therein is unequal and therefore, he sought for declaration of the said document is null and void and therefore, the plaintiff sought declaration of the partition deed dated 13.7.1987 is null and void and does not bind on him.

3. The defendant upon entering appearance filed written statement admitting the relationship. However, he contended that there was no existence of joint family as on the date of the suit since there was severance of status between the parties, in the light of the partition deed dated 25.1.1985 and subsequent deed dated 13.7.1987. He further contended that except the land bearing Sy.No.117/A & 56/2, all other lands are his separate properties. Therefore, he sought for dismissal of the suit.

4. In the light of the pleadings of the parties, the trial Court framed the following issues:

(i) Whether, the plaintiff proves that the suit properties are joint family and ancestral properties liable for partition?

(ii) Whether plaintiff further proves that he is entitled for half share and separate possession over the suit properties?

(iii) Whether plaintiff further proves that the alleged partition deed dated 13.7.1987 is null and void and not binding on him? (iv) Whether plaintiff is entitled for compensation amount to the extent of half share in respect of land bearing Sy.No.56/2 measuring 10 acres 03 guntas of Muskal, Tq. Aurad?

(v) Whether defendant proves that the suit of the plaintiff is bad for non-joinder of necessary party?

(vi) Whether defendant is entitled for compensatory costs of Rs.5,000/- from the plaintiff:

(vii) What order or decree?

5. The plaintiff examined himself as PW1 and marked Exs.P1 to P7. On the other hand, the defendant examined himself as DW1 and produced documentary evidence as per Exs.D1 to D3.

6. After hearing both the sides and on application of oral and documentary evidence, the trial Court answered issues 1 to 4 in the affirmative, issues 5 and 6 in the negative holding that the plaintiff has proved that all the suit schedule properties are joint family and ancestral properties liable for partition; that the plaintiff has proved that the alleged partition deed dated 13.7.1987 is null and void and is not binding on him, consequently the plaintiff is entitled for half share in all the suit schedule properties and separate possession of his share. The Trial Court also held that the plaintiff is entitled for compensation in respect of half share in the land bearing Sy. No.56/2 measuring 10 a