An illegitimate son is entitled to property rights under Section 16 of the Hindu Marriages Act, and the benefits of the provision are conferred on a son of a void marriage.

The respondents 1 and 2 filed a suit for declaration of their title to the suit properties and for recovery of possession or in the alternative, for partition and separate possession of their 2/3 share with past and future mesne profits against the defendants 1 and 2, the appellants herein.

2. The suit was decreed by the trial Court in favour of the plaintiffs, holding that they are entitled to entire suit properties. Aggrieved by the same, the defendants 1 and 2 filed an appeal before the lower appellate Court, which in turn confirmed the judgment and decree passed by the trial Court. Hence, the second appeal by the appellants/defendants 1 and 2.

3. According to the plaintiffs, they being the daughter and wife of Chinna Perumal Gounder respectively, are entitled to have declaration of title to the suit properties, since in 1974, the said Chinna Perumal Gounder died intestate. The defendants 1 and 2, namely, the second wife and her son respectively of the said Chinna Perumal Gounder, filed a suit for permanent injunction against the plaintiffs and the same was decreed by the trial Court, but however, dismissed by the appellate Court which was confirmed by this Court. During the pendency of the said suit, the defendants trespassed into the suit properties and took possession. Since it was already decided in the said suit that the first defendant was not the legally wedded wife of Chinna Perumal Gounder, the defendants would not be entitled to any share. Consequently, the plaintiffs filed the present suit claiming declaration and recovery of possession and in the alternative, they claim 2/3 share in the event of the Court coming to the conclusion that the second defendant was born to Chinna Perumal Gounder through the first defendant.

4. According to the defendants, the marriage between the second plaintiff and Chinna Perumal Gounder already got divorced in the year 1971 and after the divorce, the said Chinna Perumal Gounder married the first defendant, namely, Ponniammal and out of the said wed-lock, the second defendant, namely, Murugan was born. Though one other female child, by name, Chinna Akkal was born, she died later. Even though in the earlier suit, it was decided that the marriage between Chinna Perumal Gounder and the first defendant was not a valid one, the second defendant would be entitled to his share by virtue of Section 16 of the Hindu Marriages Act.

5. The trial Court, after framing necessary issues, considered the materials placed before the Court by both parties and decreed the suit in favour of the plaintiffs. As noted above, the said finding was confirmed by the appellate Court in the appeal filed by the defendants.

6. While assailing the judgments impugned, learned counsel appearing for the appellants/defendants would submit that after 1976 amendment in the Hindu Marriages Act, as per Section 16(1) of the Act, the off-spring of a void marriage is declared to be legitimate and under Section 16(3) of the Act, illegitimate children are conferred with the rights in the property of their parents and that both the Courts have not correctly applied the said provision of Section 16(3) to the present facts of the case. As such, there is a substantial question of law relating to overlooking of the words employed in Section 16 of the Hindu Marriages Act by both the Courts below.

7. I have heard learned counsel for the first respondent, who also represents the second respondent in view of the fact that she is of unsound mind, on the above aspects.

8. The substantial questions of law mentioned in the memorandum of the grounds of second appeal are as follows:-

"i. Whether the Courts below are right in holding that Section 16 of the Hindu Marriages Act is only prospective, overlooking the words employed in Section 16 of the Hindu Marriages Act?

ii. Are the Courts below right in holding that on the date of death of Chinna Perumal Gounder, the 2nd appellant was not legitimatised as a heir and as such, the succession