Children from a void marriage are entitled to inheritance of ancestral properties under Section 16 of the Hindu Marriage Act, securing legitimacy despite marriage validity issues.

JUDGMENT :

R.VIJAYAKUMAR, J.

1. Defendants 1 and 4 in a suit for partition have preferred the present first appeal challenging the judgment and decree of the trial Court.

(A)Factual Matrix:

2.As per admitted genealogy, one Duraisamy Udaiyar had two wives namely Annapottu Ammal and Gandhimathi Ammal. Annapottu Ammal (D1) is his first wife and Gandhimathi Ammal (D7) is his second wife. The plaintiffs 1 to 3, 7 to 10 are the children and grandchildren through the first defendant. The plaintiffs 4 to 6 are the children through the second wife. Defendants 2 and 3 are the sons through the second wife. The 4^th defendant is the son of the first wife (D1). Defendants 5 and 6 are the daughters of one Vasanthi (died) who is the daughter of the 1^st defendant. 7^th defendant is the second wife. This genealogy is not in dispute.

3.Totally 125 properties have been shown as suit schedule properties. According to the plaintiffs, the deceased Duraisamy Udaiyar had constructed a rice mill in 122^nd item of the suit property at Neivasal Village and later, he extended his rice mill to Thanjavur with his partner Ramasamy Chettiyar. Both of them have purchased properties in their joint names through registered sale deeds. After death of Ramasamy Chettiyar, his shares were allotted to one Karuppaiyan who belongs to the family of Ramasamy Chettiyar. The said Karuppaiyan and late Duraisamy Udaiyar partitioned the above said property under a registered partition deed dated 03.09.2001. Under the partition deed, 123^rd item of the suit property was allotted to Duraisamy Udaiyar as his absolute property.

4.It is further contended by the plaintiffs that Duraisamy Udaiyar had purchased 124^th item and has constructed a multistoried building and rented out to various third parties. 125^th item is a self-acquired property of Duraisamy Udaiyar. It is further contended in the plaint that the said Duraisamy Udaiyar had married the 1^st defendant as his first wife through whom he had got five daughters and two sons namely Amsavalli, Tamilmani, Mallika, Padmavathi and Vasanthi. Duraisamy Udaiyar had married the 7^th defendant as his second wife while his first wife was alive and therefore, it is not a valid marriage. Hence, the 7^th defendant is not entitled for any share in the suit property. She had been added only as a proper and necessary party. The Duraisamy Udaiyar got three daughters and two sons through his second wife. He had died intestate on 17.03.2007. The suit properties are the self- acquired properties of late Duraisamy Udaiyar and hence, the plaintiffs 1 to 6 and defendants 1 to 4 are each entitled to 1/12 share respectively in the suit properties. Plaintiffs 7 to 10 had each 1/48 share and the defendants 5 and 6 are each entitled to 1/24 share. According to the plaintiffs, despite several demands for partition, the defendants have not responded and hence, an Advocate notice was issued. Therefore, the present suit for partition.

5.Defendants 1 to 4 filed a written statement contending that the deceased Duraisamy Udaiyar had just 10 Maa of lands as ancestral properties. The other properties are self-acquired properties and some of them were acquired through both the wives. The defendants had further contended that Duraisamy Udaiyar had undergone second marriage in the year 1957. Items 122 to 125 are not the self-acquired properties of Duraisamy Udaiyar. They are the properties acquired through joint efforts of Duraisamy Udaiyar and defendants 2, 3 and 4.

6.The defendants had further contended that the first defendant is the absolute owner of Item No