In order to claim the status of an illegitimate child under Section 16(3) of the Hindu Marriage Act, 1955, there should be a void or voidable marriage between the parents of the individual.

.1. Defendants 1 to 3 in O.S.No. 484 of 1976 on the file of the Sub-Court, Salem are the appellants herein. The respondents 1 and 2 herein filed the said suit for partition and separate allotment claiming 5/12th share in the suit property. They put forth their claim for partition on the ground that the suit property belongs to one Karuppa Udayar and his sons Nainamalai and Velayutham as joint family property. After the death of the said Karuppa Udayar, his two sons Nainamalai and Velayutham are entitled to have equal share in the suit property. The first plaintiff in the suit is the son of Nainamalai and the second plaintiff is his widow. The third defendant is the wife of Karuppa Udayar who is entitled to l/3rd share.

2. The defendants 1 to 3 contested the suit stating that Nainamalai married one Pappathiammal, the fourth defendant in the suit as his second wife and got a son through her by name Arunachalam, the fifth defendant in the suit. Since the defendants 4 and 5 are also entitled for a share out of the share of Nainamalai, the plaintiffs are not entitled for the share as they claimed in the plaint.

3. The trial court after considering both the oral and documentary evidence available on record found that Nainamalai never married the fourth defendant as his second wife and she is only a concubine and as such the fifth defendant is not entitled for any share in the property of Nainamalai; that there was an oral partition and allotment of shares between the two brothers Nainamalai and Velayutham, and decreed the suit and granted a preliminary decree for partition and separate possession in favour of the plaintiffs for 5/6th share by judgment and decree dated 31. 1983.

4. Against the said judgment and decree of the trial court the defendants 1 to 5 preferred an appeal, even though the defendants 4 and 5 remained ex parte before the trial court. The said appeal was numbered as A.S.No.85 of 1983 on the file of the District Court, Salem. By judgment and decree dated 13.1 1.1984 the learned District Judge dismissed the appeal, confirming the finding of the trial court.

5. Aggrieved by the judgments of the courts below, the present second appeal has been filed by the defendants 1 to 3. The respondents 3 and 4 in the second appeal remained absent.

6. When the second appeal was heard on 13. 1998 the same was dismissed by this Court on the ground that the findings with regard to the marriage of the fourth defendant with Nainamalai is adverse to the defendants 4 and 5 in the suit. As they have not challenged the same, the appellants cannot be considered to be the aggrieved persons and as such they are not entitled to maintain the second appeal.

7. Against the judgment of this Court, an appeal was preferred before the Supreme Court in Civil Appeal No. 459 of 1999. By order dated 2. 99 the Apex Court has allowed the appeal on the ground that the second defendant was a purchaser from the defendants 4 and 5 and as such it cannot be said that he had no locus standi to maintain the second appeal. It is open to him to demonstrate that his vendors had legal title to convey the property to him and hence the question of law framed in the second appeal has to be answered and accordingly the appeal was remitted for fresh disposal and the same is listed.

8. The learned counsel for the appellants contended that the father of the first respondent and the husband of the second respondent herein, Nainamalai is entitled for a share and the property has been divided between Nainamalai and his brother Velayutham, the first defendant. As there had been an effective partition between Nainamalai and the first defendant, out of the share of the said Nainamalai, the fifth defendant is entitled for a share as an illegitimate son, even though there is no marriage between the said Nainamalai and the fourth defendant pappathi Ammal. There is no dispute that the fourth defendant lived with the said Nainamalai for considerably a long period a