Retrospectively application of Section 16.

T. Sathiadev, J.

1. This appeal is preferred by plaintiffs in O.S. No.3116 of 1979 on the file of City Civil Court, Madras. Defendants are the respondents herein.

2. The suit was filed by appellants/plaintiffs (ranking of parties as in suit) for recovery of possession of the suit property and for an injunction restraining the defendants from collecting rents from tenants, and to pay a sum of Rs.4,200 which had been unauthorisedly collected, that too by first defendant.

3. In the plaint it is claimed as follows: Plaintiff is the lawfully wedded wife of one Raju Mudaliar, and their marriage took place on 23.8.1934, and plaintiffs 2 to 8 are the children born to them. On 1.5.1949 he married the first defendant as his second wife by going through some form of marriage in a temple at Tiruvanmiyur. The ceremonies were not in accord with Hindu rites and customs. At the time when a second marriage was prohibited under the provisions of Hindu Prevention of Bigamous Marriage Act (Madras Act 6 of 1949), which had come into force on 23.3.1949, he having married her, she was not his lawfully wedded wife. She was at best a permanent kept-mistress. Defendants 2 and 3 born to them are illegitimate children, and therefore none of the defendants have any right to the properties left behind by Raju Mudaliar, who died on 7.2.1979. Plaintiffs 1 to 8 are the nearest heirs under the Hindu Succession Act, 1956. Defendants 2 and 3 are not entitled to inherit his properties because Section 16 of Hindu Marriage Act will not apply to them. Since defendants are in unlawful possession of the plaint schedule properties, plaintiffs have filed the present suit.

4. Defendants took up the stand that the marriage between the first defendant and Raju Mudaliar was performed according to Hindu rites On 7.5.1948 (sic) (1949 ?) at Tiruvanmiyur Temple, and that the said marriage was not void under Madras Act 6 of 1949. First defendant and the plaintiffs and the children born to them were all living together in the same premises at St. Mary's Road for about 8 years, and that the mother of Raju Mudaliar was also alive, and that the house in Narayana Chetty Street was built by him for the benefit of the first defendant and children were born to hen The suit property was purchased three years after the marriage for her benefit. If really the marriage was void, the plaintiffs would not have kept quiet since 1949. Hence the suit is liable to be dismissed.

5. Trial Court dismissed the suit by holding that Raju Mudaliar married first defendant on 7.5.1949 at Tiruvanmiyur Temple, and the said marriage was not void under Madras Act 6 of 1949, and that the plaintiff, defendants, Raju Mudaliar and his mother were all living together as one family; and that during the life time of Raju Mudaliar, the status of the first defendant was never questioned. On appeal in A.S. No. 184 of 1981, the learned Judge by relying upon the date of marriage furnished by Raju Mudaliar in the will (Exhibit A-3) dated 21.10.1966 held that he married the first defendant only on 1.5.1949, and hence, the said marriage was hit by Madras Act 6 of 194y, which became a statute on 23.3.1949. Consequently it was held that she would not be entitled to any share, but her two daughters viz. defendants 2 and 3 are equally entitled to a share along with the plaintiffs, though they are illegitimate. Reliance was placed on Section 16(3) of the Hindu Marriage Act for granting the said relief. Taking note of the fact that parties are co-sharers, except to pass a declaratory decree, the learned Judge directed the parties to obtain appropriate reliefs by filing a suit for partition and separate possession. Aggrieved against this decision, this Letters Patent Appeal is preferred by plaintiffs.

Mr. T. Viswanatha Rao learned Counsel for the plaintiffs, submits that, haying held that Raju Mudaliar married first defendant on 1.5.1949, and such a marriage is hit by Madras Act 6 of 1949,' defendants 2 and 3 could not have been