Illegitimate children of a void marriage are not entitled to a share in co-parcenary property under Section 16 of the Hindu Marriage Act, 1955.

N.K. Jain, J.

1. This judgment shall also dispose of S.A. No. 508/80 as both these appeals arise out of the judgment and decree dated 25/3/80 rendered in first appeal No. 1 -A/77 by the Court of Distt. Judge Mandleshwar (West Nimar), in affirmance of the judgment and decree dated 2/8/76 passed in C.O.S. No. 3-A/73 by the Court of Civil Judge, Class-I, Khargone - Camp Mandleshwar.

2. The suit giving rise to this appeal was brought by late Balram and the present Appellant Mishrilal, Bhagwan and Mulibai for partition of disputed lands received in an earlier partition by Balram with his brothers Anandilal and Ramchandra the Respondents No. 2 and 3 herein who were also arrayed as proforma Defendants in the suit. The Respondent No. 1 Nathu is the legitimate son of late Balram born of his first wife. Balram had contracted second marriage with Appellant No. 3 Mulibai. The Appellant No. 1 Mishrilal and No. 2 Bhagwan were born of this second wedlock.

3. The suit was resisted by Defendant - Respondent No. 1 Nathu. He denied the factum of validity of marriage of Mulibai with Balram as also Mishrilal and Bhagwan being legitimate sons of Balram. He also denied any right of Mulibai, Mishrilal and Bhagwan in the suit property. He claimed to be in possession of the suit land to the exclusion of all the Plaintiffs. According to him the suit was barred by limitation.

4. The two Courts below have concurrently held:

(a) That Plaintiff Mulibai was not legally married wife of late Balram;

(b) That Mishriial and Bhagwan, though born to her of Balram were not legitimate sons of Batram;

(c) That the property in question was co-parcenary property acquired by Batram in partition with his brothers:

(d) That possession of Nathu over the property was as a co-share;

(e) That the suit was within time; and

(f) That only Balram was entitle to 1/2 share in the suit property. Other Plaintiffs were not entitled to any share in the property.

5. On these findings the Plaintiffs' suit was decreed in part only to the extent 1/2 share for Balram alone while it was dismissed as regards claim for shares of Mulibai, Mishrilal and Bhagwan. The claim as to mesne profits was left to be decided after enquiry under Or. 20 R. 12 Code of Code of Civil Procedure and it was directed that the mesne profits shall be restricted for a period from the date of the passing of the decree till delivery of possession or 3 years whichever is less. The decree was affirmed in first appeal vide judgment impugned.

6. Appellants Mishrilal, Bhagwan and Mulibai have filed appeal No. 356/80 seeking partition of equal share in the property with Respondent No. 1 Nathu and No. 4 Balram, while Balram has filed appeal No. 508/80 seeking correction in the decree regarding mesne profits which according to him should be paid from the date of the decree until delivery of possession of his share. Appellant Balram has, however, died during the pendency of this appeal (No. 508/80). Mishrilal and Bhagwan have been substituted in place of Balram on the basis of a Will allegedly executed by late Bairam in favour of his these two sons. Before proceeding to consider his appeal it needs to be clarified that the question as to the vailidity of the Will is not being considered in this appeal. The parties shall be, therefore, free to agitate their rights or to oppose this Will in some other appropriate proceedings.

7. Appeal No. 356/80 has been admitted on following substantial questions of law:

(a) Whether the Appellant-Plaintiffs Mishrilal and Bhagwan, even being illegitimate sons of Balram, were entitled to share in the partition, in accordance with the provisions of the Hindu Succession Act, 1956 ?

(b) Whether likewise, Mulibai, even being not a lawfully wedded wife of Balramji, was equally entitled to a share in the partition ? and

(c) if so, result.

8. Appeal No. 508/80 has been admitted on following substantial question of law:

Whether the Court below was right in confirming the decree of the trial Court with respect to me