Children born of void marriages have no right of inheritance in the joint family property.

The plaintiff succeeded before the trial Court in a suit for partition and other related reliefs; but failed to sustain the same, when the same was questioned by the defendants before the first appellate Court and the result is this appeal.

2. The plaintiff is the son of the first defendant, by name Kasiappa Gounder, through his second wife, Valliammal. The second defendant/respondent is the wife of Kasiappa Gounder, the first defendant and their daughter is the third defendant. The suit properties belonged to the first defendant as his joint family properties.

3. The plaintiff/appellant contending that he is the son of the first defendant, claimed ½ share in the suit properties, alleging that the suit properties belonged to the plaintiff and the first defendant as joint family properties and therefore, by virtue of birth, probably as coparcener, he would be entitled to ½ share.

4. The defendants opposed the claim, urging that the plaintiff is not the son of the first defendant and if at all, he is the illegitimate son of the first defendant through his second wife, Valliammal and the position being so, he is not entitled to ½ share in the suit properties, while the first defendant is alive, the fact being he could not acquire any right in the joint family properties, by birth and if at all, he could claim share in the properties of the first defendant, that too, after his demise.

5. The trial Court proceeded with the trial of the case, examined three witnesses on the side of the plaintiff and the first defendant as D.W.1., in addition, exhibiting 14 documents on the side of the plaintiff, marking nil document on behalf of the defendants.

6. The evaluation and application of law as then stood, brought to surface in the assessment of the Principal District Munsif, Gobichettipalayam that though the plaintiff is the son of the first defendant through his second wife, he should be construed as the legitimate son, for all the purposes, and the legitimate son, being the member of a joint family is entitled to share in the joint family properties. In this view, the trial court has granted a preliminary decree as prayed for in O.S.No.812/82 as per the judgment dated 19.11.86.

7. The defendants impugning the said decree and judgment in O.S.No.812/82 preferred an appeal before the Sub Court, Gobichettipalayam in A.S.No.85/86. The learned Subordinate Judge elaborately considering the status of the plaintiff, and his mother as well as applying the provisions of law, came to the conclusion that the District Munsif has erred in granting the decree and in this view, he upset the trial Court’s finding ordering the dismissal of the suit.

8. The plaintiff as aforementioned has questioned the decision of the first appellate Court in this appeal on the substantial question of law viz.,

Whether the judgment of the lower appellate Court is vitiated in that it has failed to see that the plaintiff is entitled to partition in the suit properties as per Section 16 of the Amended Act?

9. Heard the learned counsel for the appellant Mr. K. Kuppusamy and the learned counsel appearing for the respondent, Mr. P.V. Ramachandran, who have taken me through the pleadings and in aid the evidence, explaining the legal position also, elaborately for their claim and counter claim.

10. The learned counsel for the appellant would contend, that as per the established fact, the plaintiff/appellant is the son of the first defendant and his legitimacy should be from the date of birth and this being the position, denying the right to claim partition in the joint family properties, would not be proper. It is the further case of the appellant, that as per Section 16 of the amended Hindu Marriage Act, the position of the plaintiff is as that of legitimate son and the right accrued to the legitimate son, under the Hindu Succession Act, could not be deprived of by any other provisions. In this view of the matter, he would urge, that the plaintiff is entitled to a share,