Sanjay K. Agrawal, J.

1. This is plaintiffs' second appeal under Section 100 of the Code of Civil Procedure (for short "the CPC") against the judgment and decree dated 17-7-2003 passed by 3rd Additional District Judge, Bemetara, Distt. Durg in Civil Appeal No. 122-A/2003, affirming the judgment and decree dated 31-10-2000 passed by Civil Judge, Class I, Bemetara, District Durg in Civil Suit No. 56-A/98, dismissing the suit.

(For sake of convenience, the parties shall be referred to according to their array in the suit.)

Plaintiffs herein filed a suit for declaration stating inter alia that defendant Nos. 1 to 5 have no right or title over the suit property as they have obtained ex parte order of partition of the suit property from the Tehsildar, Bemetara, which is bad in law. It was further pleaded that plaintiff No. 2-Phootki Bai is the first wife (widow) of deceased Ramdayal @ Ramlal and other plaintiff-Sajeevan Das is the son of deceased Ramdayal @ Ramlal out of wedlock with Phootki Bai whereas defendant No. 1-Tirith Bai is the second wife (widow) of deceased Ramdayal @ Ramlal out of second marriage (Churi form marriage) during the life time of first wife and the defendant Nos. 2 to 5 are the son and daughter of deceased Ramdayal @ Ramlal out of the wedlock with defendant No. 1-Tirith Bai. Plaintiffs further pleaded that marriage of defendant No. 1 with Ramdayal @ Ramlal during the life time of plaintiff No. 2-Phootki Bai was illegal and the defendant Nos. 2 to 5 being illegitimate children born out of void second marriage, they would not inherit the share in the property of late Ramdayal @ Ramlal.

2. The Trial Court, by its judgment and decree dated 31-10-2000, dismissed the suit, holding that defendant Nos. 2 to 5 being the illegitimate children born of void second marriage would inherit the share in the property of Ramdayal @ Ramlal by operation of Section 16 of the Hindu Marriage Act, 1955.

3. The plaintiffs preferred first appeal there against. The First Appellate Court, after re-appreciating the entire evidence adduced in the case, affirmed the judgment and decree passed by the Trial Court, leading to filing of this second appeal under Section 100 of the Code of Civil Procedure.

4. Shri P.P. Sahu, learned Counsel appearing for the plaintiffs would submit that concurrent findings recorded by both the Courts below holding that defendant Nos. 2 to 5 being illegitimate children born out of void second marriage of Ramdayal @ Ramlal with Tirith Bai would inherit the properties of Ramdayal @ Ramlal is bad in law and that raises a substantial question of law for determination in this appeal.

5. I have heard learned Counsel appearing for the parties and perused the records of both the Courts below including judgment and decree impugned.

6. It is not in dispute that Ramdayal @ Ramlal during the life time of his first wife-Phootki Bai entered into second marriage with defendant No. 1-Tirithi Bai in Churi form and out of wedlock with defendant No. 1-Tirith Bai, defendant Nos. 2 to 5, son and daughter of Ramdayal @ Ramlal were born. Thus, they are the children of Ramdayal @ Ramlal, and marriage of defendant No. 1-Tirith Bai with Ramdayal @ Ramlal was void in view of contravention of Section 5 of sub-section (ii) of the Hindu Marriage Act, 1955, but by operation of Section 16 of the Hindu Marriage Act children born of the void second marriage namely defendant Nos. 2 to 5 though illegitimate children will entitle and would inherit share in the self acquired properties of Shri Ramdayal @ Ramlal and by said provision, they will treated as legitimate for all practical purposes including succession to the property.

7. Section 16 of the Hindu Marriage Act provides as follows:--

16. Legitimacy of children of void and voidable marriages.--

Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12 any child begotten or conceived before the decree is made who would have been the legitimate child of the parties