A son can sue for partition of ancestral property against his father during his lifetime; illegitimate children do not have rights in ancestral property.

1. This second appeal preferred under S.100 of the CPC by the appellants herein / defendant Nos.1 and 2 was admitted for hearing by formulating the following substantial questions of law: -
"(1) Whether the suit suffered from non - joinder of necessary parties as the daughters of defendant No.1 were not arrayed in the suit?
(2) Whether a decree for 1/2 share in the suit property can be passed in favour of the appellants in respect of the ancestral property for which the suit has been preferred during the lifetime of father?"
[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.]

2. It is the case of the plaintiff that the suit property mentioned in Schedule A appended with the plaint fell in the share of Bhagela Sahu - defendant No.1 in the family partition between his brother and his father and the property mentioned in Schedule B appended with the plaint was purchased out of the income of the property shown in Schedule A of the plaint. The plaintiff filed suit for declaration of title, partition, separate possession and mesne profit stating inter alia that he is son of Bhagela Sahu out of his marriage with first wife Kumari Bai, whereas defendant No.2, Chandrakali and Dhaneshwari Bai are son and daughters of Bhagela Sahu out of his marriage with second wife Kunti Bai. Defendant No.1 Bhagela Sahu filed written statement and disputed the paternity of the plaintiff stating inter alia that the plaintiff is not his son and therefore not entitled for partition over the suit land, that too during his lifetime.

3. The trial Court after appreciating oral and documentary evidence available on record, dismissed the suit holding that the plaintiff is not son of defendant No.1, but in appeal preferred by the plaintiff before the first appellate Court, the first appellate Court held that the plaintiff is the legitimate son of Bhagela Sahu - defendant No.1 out of his marriage with Kumari Bai and defendant No.2, Chandrakali and Dhaneshwari Bai are son and daughters of Bhagela Sahu out of his marriage with Kunti Bai - second wife, during the subsistence of marriage with Kumari Bai (without chod chutti) and accordingly held that the plaintiff is entitled for half share in the suit property against which this second appeal under S.100 of the CPC has been preferred by defendant Nos.1 and 2 in which substantial questions of law have been formulated which have been set - out in the opening paragraph of this judgment.

4. Mr. Pushpendra Kumar Patel, learned counsel appearing for the appellants herein / defendant Nos.1 and 2, would submit that Chandrakali and Dhaneshwari Bai - two daughters of Bhagela ought to have been impleaded as party defendants in the suit, as such, the suit is bad for non - joinder of necessary party. He would further submit that since defendant No.1 Bhagela is still alive, therefore, the plaintiff (son) could not have brought suit for partition during the lifetime of his father / defendant No.1. As such, the suit deserves to be dismissed on both the counts.

5. Per contra, Mr. Ratan Pusty and Mr. Shobhit Koshta, learned amicus curiae, would submit that the position with regard to filing of suit by son has been settled by the Supreme Court in the matter of Puttrangamma and others v. M.S. Ranganna and others , AIR 1968 SC 1018 as with regard to the joint family property / coparcenary property, son is at liberty to file suit against his father during the lifetime of his father, as such, no exception can be