Even an illegitimate child has the right to succeed to the property of the father under Section 16(1) of the Hindu Marriage Act, 1955.

This appeal is by the plaintiffs, which was admitted by a Bench of this Court on the following substantial question of law :-

“Whether plaintiff Durgawati, being daughter of deceased Krishna Kumar, has a right of inheritance even if she is daughter from void marriage?”

2. Facts leading to filing of the appeal briefly stated are that the plaintiff No.2 is the grand-daughter of defendant No.1. The Defendants No.2 and 3 are brothers of defendant No.1, whereas the defendants No.4 to 11 are uncles of defendant No.1. The plaintiff No.1 got married at the age of 10 years with one Jamuna Prasad in the year 1977. After death of Jamuna Prasad, she got married to Krishna Kumar son of defendant No.1 on May, 1980. Out of the said wedlock, plaintiff No.2 was born. Krishna Kumar expired some time in the year 1984. It was pleaded in the plaint that the defendant No.1 is the owner of the suit property mentioned in schedule A to C in which Krishna Kumar had 1/4t h share. It was further pleaded that plaintiffs and defendants were members of joint family. However, after death of Krishna Kumar, plaintiffs were thrown out of the house. The plaintiffs thereafter filed a suit seeking the relief of declaration that they are entitled to 1/4t h share in the suit land and for possession.

3. The defendants No.1 to 8 and defendants No.9 and 11 filed written statement, in which inter-alia it was denied that the plaintiff No.1 was neither wife of Krishna Kumar nor plaintiff No.2 is daughter of Krishna Kumar, and the plaintiffs are not members of the joint family. An objection with regard to maintainability of the suit was also taken on the ground that since there is no partition among the defendants, therefore the claim of the plaintiffs is untenable. It was also pointed that one Amravati was wife of Krishna Kumar and suit land is self acquired property of Krishna Kumar.

4. The trial Court vide judgment and decree dated 17.7.1995 on meticulous appreciation of evidence on record inter-alia held that the plaintiff No.1 is legally wedded wife of deceased Krishna Kumar and the plaintiff No.2 is daughter of Krishna Kumar, and the defendants led no evidence to prove that suit lands are ancestral lands of defendants. It was further held that in the lands held by the defendant No.1, deceased Krishna Kumar had 1/4t h share, therefore, the plaintiffs are entitled to 1/4t h share in the suit lands and the suit was within limitation. The lower appellate Court vide impugned judgment and decree dated 15.4.1999 inter-alia held that the plaintiff No.1 has failed prove that she either got married to deceased Krishna Kumar or that the plaintiff No.2 is a legitimate daughter of Krishna Kumar. It was further held that the suit lands were recorded in the names of defendant No.1 therefore, the same is self-acquired property of defendant No.1. It was further held that the plaintiffs are not entitled to 1/4t h share of the suit lands. Accordingly, the claim of the plaintiffs was dismissed.

5. Learned counsel for the appellants submitted that the plaintiffs had proved the marriage in accordance with the custom prevalent in the community. In this connection, learned counsel for the appellants has invited the attention of this Court to paragraph-5 of cross-examination of defendant No.1. It was further submitted that even assuming that the plaintiff No.2 was born from void marriage, yet she was entitled to share in the suit property which was held to be self acquired property of deceased Krishna Kumar by the lower appellate Court. In support of aforesaid submissions, learned counsel for the appellant has placed reliance on the decision of Supreme Court in the case of Bharatha Matha & Anr. Vs. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685.

6. I have considered the submissions made by learned counsel for the appellants and have perused the record. It is well settled in law that custom must possess the conditions of antiquity and certainty and there has to be clear and unambiguou