Point of Law : Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

JUDGMENT :

Rajendra Badamikar, J.

This appeal is filed by the defendants against the judgment and decree dated 09.10.2015 passed by the learned Senior Civil Judge and JMFC, Raibag, in O.S.No.91/2013, whereby the learned Senior Civil Judge has decreed the suit filed by the plaintiffs by awarding them 1/3rd share each in the 1/6th share of first defendant in the suit schedule properties.

2. For the sake of convenience, the parties herein are referred with the original ranking occupied by them before the trial Court.

3. The plaintiffs have filed a suit for partition and separate possession of their 1/18th share in the suit schedule properties. Plaintiff No.1 claims to be the wife and plaintiff No.2 claims to be the daughter of defendant No.1. The propositus of the family is said to be one Nayaku and he left defendant Nos.1 to 6 as his legal heirs. The plaintiffs are the wife and daughter of defendant No.1. It is alleged that defendant No.1 has neglected and trying to alienate suit property as he contracted second marriage illegally and hence they filed a suit for partition and separate possession seeking their 1/3rd share in the 1/6th share of defendant No.1.

4. Defendant No.1 filed his written statement which is adopted by the other defendants and the relationship between the parties is admitted. It is asserted that, at the instance of one Yashwant Maruti Chavan, plaintiff No.1 has filed a suit and also filed a petition for maintenance and the plaintiffs are residing separately. It is alleged that, plaintiff No.1 deserted defendant No.1 and she is living in adulterous life. It is also alleged that the plaintiffs have not impleaded necessary parties and they are no way concerned to the family properties of defendant No.1 and as such, sought for dismissal of the suit.

5. On the basis of these pleadings, the trial Court has framed the following issues:

“1. Whether the plaintiffs prove that, the suit schedule properties are the ancestral joint family properties?

2. Whether the suit is bad for non-joinder of necessary parties?

3. Whether the plaintiffs are entitled to their legitimate share and separate possession in the suit properties?

4. What order or decree?”

6. Plaintiff No.1 is examined as PW1 and one witness was examined as PW2. The plaintiffs have also placed reliance on 7 documents marked at Exs.P1 to P7. Defendant No.1 was examined as DW1 and one witness was examined on behalf of the defendants as DW2. The defendants have also placed reliance on 8 documents marked at Exs.D1 to D8.

7. The trial Court, after hearing the arguments advanced by both the parties and after appreciating the oral and documentary evidence, answered issue Nos.1 and 3 in the affirmative while issue No.2 is answered in the negative and thereby decreed the suit of the plaintiffs by awarding each plaintiff 1/3rd share out of 1/6th share of defendant No.1. Being aggrieved by this judgment and decree, defendants have filed this appeal.

8. During the pendency of the appeal, appellant No.1/defendant No.1 died and it is alleged that appellant No.1(a) and 1(b), being the 2nd wife and the child born out the second wife, are his legal representatives and sought for bringing them on record as legal representatives of deceased defendant No.1. The said application came to be allowed by order dated 10.09.2020 reserving the rights to decide the legality of their heirship during the final hearing.

9. The appellants have also filed I.A.1/2020 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as ‘CPC’) for production of School ID card, Aadhar card, Bank pass book, certified copies of the sale deeds in favour of appellant Nos.2 to 4, birth certificate of appellant No.1(b) etc to prove that certain properties are self acquired properties of appellant Nos.2 to 4.

10. Heard the arguments advanced by the learned counsel for the appellants/defendants and the learned counsel for the respondents/plaintiffs. We have also perused the records of the