The main legal point established in the judgment is the application of S.16 of the Hindu Marriage Act to protect the rights of children born out of void marriages and the importance of strong and conclusive rebuttal evidence to challenge the presumption of marriage.

D. Sreedevi, J.

This Second Appeal is directed against the decree and judgment in A.S. No. 77 of 1986 of the District Court, Kozhikode which was filed against the decree and judgment in O.S. No. 88 of 1983 of the Sub Court, Badagara. The third defendant before the trial court is the appellant and plaintiffs are the respondents. The plaintiffs-respondents filed the above suit for partition. Plaintiff's case in brief is this. The plaint schedule properties originally belonged to Kunjiraman Nambiar. He died in 1971. Plaintiff's case is that after the death of Kunjiraman Nambiar his property devolved on plaintiffs 1 and 2 and the first defendant as they are the widow and sons of the deceased Kunjiraman Nambiar. It is alleged that the second defendant claiming to be the widow of Kunjiraman Nambiar executed certain documents under which defendants 3 to 6 and 8 to 15 claim possession over the property. Plaintiffs claim 2/3 share over the plaint schedule properties as the first defendant is entitled to 1/3 share. Defendants 1 and 2 remained ex parte. The third defendant filed a written statement contending that the first plaintiff is not the wife of deceased Kunjiraman Nambiar and the second plaintiff is not her son through him. The second defendant is the wife and after the death of Kunjiraman Nambiar his rights devolved on defendants 1 and 2 and his mother Mani Amma. This Mani Amma executed a sale deed in favour of the 16th defendant, her daughter. Thus the property belongs to defendants 1, 2 and 16. The third defendant purchased item No. 2 under a document of the year 1976 and is in possession. According to her Mani Amma is a necessary party to the suit. The 4th defendant claims 3 cents of property from one Narayana Kurup who had obtained the same from defendants 1,2 and 16. The 5th defendant contended that his wife Ayishabi is in possession of a portion of the property under documents executed by the legal heirs of Kunjiraman Nambiar. Defendants 8 and 9 claim that they are in possession of a portion of item No.1 under defendants 1,2 and 16. The other defendants also claim right under defendants 1, 2 and 16.

2. The trial court after taking evidence dismissed the suit holding that the plaintiffs failed to prove that there was a marriage between the first plaintiff and Kunjiraman Nambiar. Aggrieved by the said decree and judgment the plaintiffs filed A.S. No. 77 of 1986. The learned District Judge allowed the appeal and passed a preliminary decree for partition holding that the second plaintiff is entitled to a share in the property as legal heir of deceased Kunjiraman Nambiar. Aggrieved by the said decree and judgment defendants 1 to 6 and 8 to 17 filed this appeal.

3. The question of law involved in this case for the purpose of this appeal is this. Whether the lower appellate court is correct in law in applying S.16 of the Hindu Marriage Act to award share to the second plaintiff on the pleadings and evidence in the case.

4. Admittedly the plaint schedule properties originally belonged to Kunjiraman Nambiar. He passed away. According to the plaintiffs after the death of Kunjiraman Nambiar his property devolved on plaintiffs 1 and 2 and the first defendant. The plaintiffs would allege that the second defendant claims to be the widow of Kunjiraman Nambiar. Even though it is alleged in the plaint that she claims to be the wife of Kunjiraman Nambiar at the time of hearing it was admitted that the second defendant was the legally wedded wife of deceased Kunjiraman Nambiar. It is also an admitted fact that a son was born to Kunjiraman Nambiar through the second defendant. The first plaintiff claims to be the legally wedded wife of deceased Kunjiraman Nambiar. It is in evidence that on the date of the alleged marriage of the first plaintiff with Kunjiraman Nambiar, Kunjiraman Nambiar had a son, who is the first defendant herein. The status of the first defendant is admitted by the plaintiffs. To prove that there was a valid marria