( 1 ) THIS second appeal is directed against the judgment and order dated 30-10-1990 rendered by the 3rd Additional District judge, Kolhapur by which Regular Civil Appeal No. 421 of 1985 filed by respondent No. 1 - plaintiff was allowed and the decree and judgment passed by the trial Court dated 30-9-1985, dismissing Regular Civil Suit No. 61 of 1979 came to be set aside.

( 2 ) THE suit was filed by respondent No. 1 for partition and separate possession of one half share in the suit properties. The trial Court dismissed the suit for non joinder of Sonabai, the mother of the plaintiff, as party in the suit. It appears that in the appeal the plaintiff-appellant made an application for amendment of the plaint seeking permission to add Sonabai as party defendant in the suit and the said application was allowed and accordingly she was added as defendant No. 9 in the suit. This order of amendment was not challenged either at that stage or even in the present appeal.

( 3 ) MS. Kololgi, learned counsel for the appellants fairly stated that she has instructions to confine the challenge in the instant appeal only to the extent of share allotted to the appellants by the appeal Court. She submitted that looking to the number of members of Maruti's family, the plaintiff would not be entitled for more than 1/5th share in the 1/3rd share of Marut. In other words, the appellate court has committed grave error of law in allotting 1/3rd share to the plaintiff out of 1/3rd share of Marut. She did not raise any other contention.

( 4 ) TO appreciate the submissions of Ms. Kololgi it would be necessary to reproduce a geneology to bring forth the relationships of the parties so as to find out whether the shares determined by the appeal Court are correct and warrant interference by this Court. The geneology reads thus : rau (died in 1961)

( 5 ) THERE is no dispute that Maruti - defendant No. 1, Shamrao-defendant no. 5 and Pandurang-defendant No. 6 were entitled for 1/3rd share each in the ancestral coparcenary property. The plaintiff sought partition and separate possession of his share out of l/3rd share of Marut. Therefore, in the present appeal we are concerned only with the l/3rd share of Maruti in the ancestral coparcenary property of the joint family concerning of all the parties to the suit. Maruti had two wives, Sonabai-defendant No. 9 and Housabai-defendant No. 2. Housabai, the second wife has two sons, that is, Suresh-defendant No. 3 and subhash-defendant No. 4, whereas Sonabai-defendant No. 9, the first wife of maruti, has one son-Shrikant, the plaintiff in the present suit and daughter-Rekha. It is against these admitted facts Ms. Kololgi, learned counsel for the appellants submitted that Suresh and Subhash are also entitled to have shares in the l/3rd share of Maruti and the appellate Court has failed to consider their share while allotting l/3rd share in l/3rd share of Maruti to the plaintiff. In other words, suresh and Subhash are also entitled for equal shares with Maruti, Sonabai and shrikant. On other hand Mr. Godbole, learned counsel for the respondents invited my attention to the judgment in Jinia Keotin and others vs. Kumar Sitaram manjhi and others, (2003) 1 SCC 730 to contend that defendant Nos. 3 and 4 are not entitled to claim inheritance in ancestral coparcenary property and in view thereof the appellate Court has rightly allotted l/3rd share each to Maruti, sonabai and Shrikant. Admittedly, Suresh and Subhash are the sons of Housabai, the 2nd wife of Maruti and in view thereof they are the children of void/illegal marriage of Maruti and Housaba.

( 6 ) THE Apex Court in Jinia Keotin (supra) was dealing with the contention that once the children born out of void and illegal marriage have been specifically safeguarded under section 16 of the Hindu Marriage Act, 1955 (as amended by Central Act 68 of 1976), there is no justification to deny them equal treatment on a par with the children born of the wife in lawful wedlock by coun

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