JUDGMENT - R.A. JAHAGIRDAR, J.:---The appellants in this appeal were defendants Nos. 1 and 2 in Special Civil Suit No. 30 of 1979 which was filed by respondents Nos. 1 to 4 in the Court of Civil Judge (Senior Division) at Dhule. For the sake of convenience, the parties will be referred to as the "plaintiff" and the "defendant". In order to understand the nature of the suit, it is necessary to mention the relationship between the parties.

2. One Tukaram had been married to Dagubai, who is plaintiff No. 1. She has three daughters from Tukaram. They are plaintiff Nos. 2, 3 and 4. During the subsistence of his marriage with Dagubai, Tukaram married Lilabai, who is defendant No. 2, sometime in the year 1976. From her he got a son, Shantaram who is defendant No. 1. Tukaram died in June 1978. The plaintiff filed the suit against the defendants who were in possession of several properties which had been left by Tukaram. The suit was, in particular, for a declaration that the defendants were not the legal heirs of Tukaram, that they have no right, title or interest in the properties of Tukaram, and for possession of the said properties. Since the plaintiffs, who were four in number, were entitled to succeed to the estate of Tukaram, they also prayed for partition and possession of the properties to the extent of ¼th share to each of them. In the alternative they prayed that in case it was held that the first defendant had a share in the properties then the Court should determine the shares and partition the properties and give the same in the respective possession of the properties. The main thrust of the plaintiffs, therefore, in the suit was that the defendants were not the legal heirs of Tukaram, because defendant No. 2 married Tukaram during the subsistence of the latter's valid marriage with the first plaintiff.

3. The defendants resisted the suit by contending that the first plaintiff, namely Dagubai, had been divorced by Tukaram as per the custom governing the community to which the parties belonged and it was thereafter that Tukaram's marriage with the second defendant took place. Hence, the marriage between the second defendant and Tukaram was valid and therefore the defendants were the heirs of Tukaram.

4. The learned trial Judge, after framing the necessary issues, held that though there was a custom which permitted divorce, apart from the Hindu Marriage Act, in the community to which the parties belonged, as a matter of fact there was no divorce between Tukaram and Dagubai. He therefore, necessarily held that Tukaram's marriage with the second defendant was void under the provisions of section 11 read with section 5(i) of the Hindu Marriage Act. The result was that the second defendant was not the validly married wife of Tukaram. In the absence of a better compact word, we would be referring to her as the illegitimate wife. The first defendant, who was the off-spring of the second defendant from her marriage with Tukaram, was naturally an illegitimate son but for the provisions contained in section 16 of the Hindu Marriage Act.

5. The legal consequence, according to the learned trial Judge, was that neither of the defendant had a share in the properties of Tukaram. He however, held that both the defendants were entitled to maintenance. For this the learned trial Judge relied upon (Rajeshbai Sadashiv Khairnar v. Shantabai Sadashiv Khairnar)1, LXXXIII Bom.L.R. 527, wherein it has been held by Masodkar, J., that "where in any collateral proceedings after the death of a Hindu husband, a finding is recorded by a competent Civil Court that his marriage with a women was void de jure that women would be entitled to rely on the principles of section 25 of the Hindu Marriage Act and invoke the powers of the Court for making provisions for just and fair maintenance". While so holding, Masodkar, J., in fact purported to apply a ruling of another judgment of this Court namely (Govindrao v. Anandibai)2, (by Kania, J., as he then was) LX

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