A child born from a void marriage is deemed legitimate under Section 16(1) of the Hindu Marriage Act, 1955, and is entitled to succeed to the property of their parents.

R.S. Garg, J.

1. The appellants/plaintiffs being aggrieved by the judgment and decree dated 22-9-1986 passed in Civil Regular Appeal No. 12A/83 by the learned Additional District Judge, Durg, reversing the judgment and decree dated 9-3-1983 passed in Civil Suit No. 15A/81 by the learned Civil Judge, Class I, have preferred this appeal.

2. The plaintiffs filed the suit alleging that the agricultural lands ad measuring 1.386 hectares of village Ghoghapuri and 1.222 hectares of village Chaneli were belonging to deceased Hinchharam and he was recorded Bhumiswami of the said lands in the revenue papers. Plaintiffs 1 to 3 are the grand-daughters of Hinchharam and plaintiff No. 4 is the widow and plaintiff No. 5 is the daughter of Hinchharam. It was submitted that defendant Pusiabai claiming to be daughter of deceased,- Hinchharam filed an application before the revenue authorities for declaring her rights in the property and mutation over it. The plaintiffs contended that defendant Pusiabai in collusion with the Village Patwari and the revenue inspector got her name mutated in the revenue papers alleging that her mother Puttubai was legally wedded wife of Hinchharam. The plaintiffs further contended that Puttubai was widow of Vednath Sahu who was the elder brother of deceased Hinchharam, as she developed illicit relation with Hinchharam, she ultimately delivered a child who is the defendant in the suit. It was further submitted that a village Panchayat was called in relation to pregnancy of Puttubai wherein Hinchharam denied the relationship and immediately thereafter Puttubai left the village and started living in house of one Dhanan Sahu of village Bhardar. It was also alleged that Hinchharam kept the defendant in his house under the pressure of the village people and got her married but in any case she does not have any right in the property left by Hinchharam

3. The defendant in her written statement contended that Hinchharam married with Puttubai after performing 'Churi ceremony' which is necessary when a person marries a widow and also submitted that such marriage is kept legally recognized. It was also submitted that after such marriage defendant Pusiabai was born. Therefore, she in fact is the daughter of deceased Hinchharam and has rights in the property.

4. The learned trial Court came to the conclusion that defendant Pusiabai was not the daughter of deceased Hinchharam and she got her name mutated in the revenue records in collusion with the Patwari. It also held that as she is not the daughter of deceased Hinchharam she cannot succeed to the property. On face of these findings the learned trial Court decreed the suit.

5. Being aggrieved by the said findings the defendant Pusiabai preferred the appeal which is allowed by the first appellate court holding that Pusiabai was the daughter of deceased Hinchharam. Puttubai alias Phoolbai was married to Hinchharam and thereafter not only Hinchharam but everybody treated Pusiabai to be the daughter of Hinchharam. Therefore she being the daughter would be entitled to succeed to the property.

6. The plaintiffs being aggrieved by the said judgment and decree have preferred this second appeal which has been admitted on the following substantial question of law :

"Whether under the facts and circumstances of the case, the first appellate court was justified in reversing the judgment and decree passed by the trial Court, whereas without obtaining a decree of divorce from the first living wife the second marriage was performed, and the child born from the second wife, could she be treated as legitimate child?"

7. It was contended by Shri B. M. Dwivedi that there is no legal evidence on record that before Puttubai conceived she was legally married and further without obtaining a divorce from the first living wife, the second marriage was performed. Therefore, the child born from the second wife cannot be treated to be legitimate child.

8. The suit was filled on 4-5-1981 and the age of the