P.S. Narayana, J.@mdashThis Second Appeal arises out of an action for partition and the dispute is between father and a son. The son had instituted the suit O.S. No. 24/88 on the file of Subordinate Judge, Gadwal for the relief of partition and separate possession of half share in the plaint schedule properties. The father, as defendant, had resisted the suit and the Court of first instance had granted a preliminary decree dividing the plaint schedule properties into three equal shares. Aggrieved by the same, the defendant-father preferred appeal A.S. No. 32/90 on the file of Additional District Judge, Mahaboobnagar and the appellate Court had modified the decree by granting half share and half share to both the plaintiff and the defendant, the son and the father. The 1/3rd share given to the mother of the plaintiff by the Court of first instance was set aside by the appellate Court. The defendant-father, aggrieved by the said Judgment and decree made in A.S. No. 32/90 on the file of Additional District Judge, Mahaboobnagar had preferred the present Second Appeal.
2. Sri B. Raghavender Rao representing Sri Palaksha Reddy, counsel for the appellant had submitted that the appellant/defendant is having children through another wife also and those children also are entitled to their respective shares in the joint family properties and hence the respondent/plaintiff at the best is entitled to only 1/5th share and not more than that. The counsel also submitted that by virtue of Section 16 of the Hindu Marriage Act, 1955, such children also will become co-larceners and they are entitled to right by birth and the suit for partition in their absence is not maintainable. The learned counsel also had taken me through the findings recorded by both the Courts below in this regard.
3. Per contra Sri Prasad, the learned counsel representing the respondent/plaintiff, the son who had instituted the suit for partition, made the following submissions. The learned counsel contended that finding had been recorded that the appellant had not taken any divorce as far as the first wife is concerned and hence the first wife alone is legally wedded wife and the respondent/plaintiff is the son through the first wife Sawaramma. The learned counsel also submitted that both the Courts had recorded concurrent findings that the alleged marriage with Venkatamma is not a valid marriage and those children at the best can be termed as illegitimate children. This being a finding of fact recorded by both the Courts below, the same need not be disturbed in the present Second Appeal. The learned counsel also contended that when the alleged second marriage itself was not proved and even otherwise when the same is not valid in law, since right to claim partition to the illegitimate children will not accrue during the lifetime of the father, such parties are not necessary parties to this partition action and hence though the Court of first instance had erred in granting 1/3rd share to the mother of the respondent/plaintiff also, the same was properly modified by the appellate Court by exercising powers under Order 41 Rule 33 of the CPC and hence in view of the concurrent findings recorded by both the Courts below, the Second Appeal is liable to be dismissed.
4. Heard both the counsel and perused the findings recorded by both the Courts below and also the oral and documentary evidence available on record.
5. Facts in brief: The parties are referred to as "plaintiff" and "defendant" as arrayed in the suit.
6. The plaintiff filed the suit O.S. No. 24/88 on the file of Subordinate Judge, Gadwal for the relief of partition and separate possession of his half share in the plaint schedule properties against the defendant, the father. The relationship between the parties is not in dispute. It is pleaded in the plaint that the plaintiff and the defendant are the members of Hindu Joint Family and the plaint schedule properties are their ancestral properties and they have been in joint possession and enjoyment of the said properties and due to differences between the plaintiff and the defendant, it became impossible to continue joint possession and hence the plaintiff made an attempt for partition, but the defendant was not inclined to do so and hence the present partition suit was filed.
7. The defendant filed written statement pleading that the plaintiff had separated long back and has been enjoying his separate share and the plaintiff had played fraud by not showing the actual members of the Joint Family and since the plaintiff had been living separately for sufficiently a long time, there is no question of the plaintiff claiming the relief of partition again. The defendant also had pleaded that he is living separately with his wife and three other children.
8. On the strength of the respective pleadings, the Court of first instance had settled the Issues and after examining PW-1 to PW-6, DW-1 to DW-4 and marking Exs.A-1 and A-2, arrived at the conclusion that the plaint schedule properties are the ancestral properties, but had decreed the suit granting 1/3rd to the plaintiff, 1/3rd to the defendant and also 1/3rd to the share of the mother of the plaintiff on the ground that she is also entitled to a share. The defendant preferred appeal A.S. No. 32/90 on the file of Additional District Judge, Mahabubnagar which was allowed in part and the Judgment and decree of the trial Court were modified granting half share each to the plaintiff and the defendant and against the said Judgment and decree the present Second Appeal is filed.
9. The only substantial question of law which arises for consideration in the present Second Appeal is as hereunder:
Whether the plaintiff is entitled to half share in the joint family properties or he is entitled to only 1/5th share in the joint family properties ?
10. The stand taken by the defendant is that since he married again for the second time though the mother of the plaintiff is alive and even without seeking dissolution of the first marriage, since he begot children through the second wife, all these children are entitled to their respective shares and hence the plaintiff is not entitled to half share, but he is entitled to only 1/5th share. In other words, the stand taken by the defendant is that since the other children through the second wife also got right by birth and became the co-parceners, they stand on equal footing with that of the plaintiff, the son through the first wife, and all are entitled to equal shares and hence at the best the suit can be decreed only to an extent of 1/5th share and not more than that.
11. I had gone through the findings recorded by both the Courts below with care and caution and both the Courts below had recorded that Sawaramma, the first wife of the defendant was not given any divorce by the defendant and hence she continues to be the only wife in the eye of law. Further, concurrent findings had been recorded that the alleged marriage with Venkatamma had not been celebrated in accordance with the ceremonies which were not proved and at any rate the children of Venkatamma at the best can be illegitimate children who cannot claim any right of partition at presenti. These are findings of fact recorded by both the Courts below. The only modification done by the appellate Court is since Sawaramma, the first wife, is not entitled to a share inasmuch as the husband is alive, the Judgment and decree of the Court of first instance were modified granting half share to the plaintiff and also half share to the defendant and the said Judgment and decree of the appellate Court cannot be challenged in view of the powers of the appellate Court as specified under Order 41 Rule 33 of the Code of Civil Procedure.
12. The question which had been elaborately argued by both the counsel is relating to the status of the illegitimate children under Hindu Law to claim the relief of partition and their legal rights in relation to the joint family properties. It is pertinent to note that a finding had been recorded that all these properties are ancestral in nature and these are all joint family properties of the family of the plaintiff and the defendant as well. In RASALA SURYA PRAKASARAO Vs. RASALA VENKATESWARARAO 1993(1) An. W.R. 239, the Division Bench of this Court while dealing with Section 16(1) as amended by the Amending Act, 1976 of the Hindu Marriage Act, 1955 held as hereunder:
"Even prior to the advent of Section 16 of the Hindu Marriage Act, both as per the Shastraic and textual law as well as the decisions of the Highest Courts, the illegitimate son or of a Sudra is entitled to enforce a partition after the father''s death. He is entitled to the rights of survivorship as he becomes a coparcener with the legitimate son. The decisions have held that he is a member of the family and that he has status as a son and by virtue of that he is entitled to the right of survivorship. Section 16 of the Hindu Marriage Act has conferred on him the status of a legitimate son and his other pre-existing rights are, in no way, curtailed. After the 1976 amendment of Section 16, the benefits of Section 16 are enlarged and such benefits are also conferred on a son of a marriage which is void under the provisions of the Hindu Marriage Act, whether a decree of nullity is passed or not, such a son becomes a legitimate son. Such a child is also entitled to rights of succession under the Succession Act. A child of void marriage is related to its parents within the meaning of Section 3(1)(j) of the Hindu Succession Act by virtue of Section 16 of the Hindu Marriage Act. Proviso to Section 3(1)(j) must be confined to those children who are not clothed with legitimacy u/s 16 of the Hindu Marriage Act. In conclusion, it may be held that by virtue of Section 16(1) of the Hindu Marriage Act as amended in 1976, the illegitimate son can be equated with his natural sons and treated as coparceners for the properties held by the father whether the property be originally joint family property or not. The only limitation is that during the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek a partition. He can seek a partition only after the death of the father".
13. While explaining the position of an illegitimate son under old texts of Hindu Law, reliance was placed on the following decisions:
14. In the light of the findings recorded above, I am of the considered opinion that the Second Appeal is devoid of merits and accordingly the same is dismissed. However, in view of the fact that father and the son are fighting the litigation, this Court is not inclined to make any order as to costs.
