1. This is defendants' appeal against an appellate decree of the Extra Assistant Judge, Sholapur, dismissing their appeal against the decree passed by the Civil Judge, Junior Division, Akkalkot, declaring that the respondents Nos. 1 and 2 and the appellant No. 1 have 1/3rd share each in the suit land and the sale effected by defendant No. 1 in favour of defendant No. 5 in respect of Survey No. 36/1 was not binding on the plaintiffs.
2. The respondent No. 2--original plaintiff No. 2 is a son of respondent No. 1 -- original plaintiff No. 1 and the appellant No. 1 Hanmanta. It is the case of the plaintiffs that this Hanmanta married appellant No. 2 -- original defendant No. 2 Nagawa while the marriage between him and respondent No. 1 Dhondavvabai was subsisting. The appellants Nos. 3 and 4 are the sons of appellants Nos. 1 and 2. Original defendant No. 5 was the purchaser of Survey No. 36/1. It is not disputed and both the Courts below have found that Survey No. 36/1 and Survey No. 145/1 of village Mal-kavathe, Taluka Sholapur, District Sholapur were ancestral property of the appellant No. ]'s family. It was also found as a fact by both the Court below and it is not disputed in the Second Appeal that this property was obtained by the appellant No. 1 in partition with his father and brothers in 1958. It was also not disputed that just prior to the filing of the suit, the appellant No. 1 and the respondents Nos. 1 and 2 formed a joint family. It appears that the appellant No. 1 took appellant No. 2 as a wife while the marriage between appellant No. .1 and respondent No. 1 was subsisting and that led to the disputes between the appellant No. 1 and respondent No. 1. She, therefore, instituted a suit on behalf of her minor son and herself claiming l/3rd share each in the two fields mentioned above. She has also stated in the plaint that Survey No. 26/1 was sold by appellant No. 1 to respondent No. 3 -- original defendant No. 5 without any legal necessity and that sale was not binding on their shares. The suit was resisted by the defendants on numerous grounds which it is not necessary to enumerate.
3. The learned trial Judge, on consideration of the evidence led by the parties, held that the property was ancestral property arid that the appellant No. 1 had got this property in partition with his father and brothers. The trial Judge also held that the plaintiffs and appellant No. 1 were entitled to l/3rd shareeach in the property. He also held that the sale effected by the appellant No. 1 in favour of the defendant No. 5 was effected without any legal necessity and was not binding on the plaintiffs. He, therefore, decreed the plaintiffs' suit. Aggrieved by that decree, the defendants filed an appeal which was heard by the Extra Assistant Judge, Sholapur. He affirmed the finding recorded by the trial Court and dismissed the appeal. It is against this judgment and decree that the present appeal has been filed by the appellants.
4. Mr. Patankar, the learned counsel for the appellants, urged that both the Courts below have committed an error in granting decree for partition without being satisfied that it was necessary in the Interest of the minor coparcener and that it was for hig benefit that the partition should be effected. It is true that the plaintiff No, 2 was and is a minor and, therefore, the Courts below ought to have made enquiries into the matter. The appellant No. 1 has taken appellant No. 2 as a wife while his marriage with the respondent No. 1- was subsisting. It does appear that he was more devoted to appellant No. 2 than to respondent No. 1 and her child. The satisfaction of the Courts was eloquent from the facts of this case and the manner in which they have dealt with this case. It was not necessary to record any finding, in terms, that it was for the benefit of the minor. The Courts below have, therefore, not committed any error in ordering the partition.
5. Mr. Patankar, the learned counsel for the appellants, then invited my attention fo Section 16 of the Hindu Marriage Act which reads:
6. 'Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child -- notwithstanding the decree of nullity: Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for thepassing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.' He submitted that even if the second marriage of the appellant is void, his children born out of that marriage will be deemed to be legitimate children as provided by the section. Therefore, appellants Nos. 3 and 4 will be entitled to shares equal to that of respondent No. 2 who is a legitimate child of appellant No. 1. It is not possible to accept this contention. He has not shown how circumstances under which the children begotten of the marriage which was null and void and which was declared to have been void and which entitled them equal shares in the parents' property exist in the case. Then again in the present case, it is not the property of the father of the children, viz., appellants Nos. 3 and 4 and respondent No. 2 but it is a coparcenary property of appellant No. 1 and respondents Nos. 1 and 2, That being so, it is not correct for the appellants to say that the appellants Nos. 3 and 4 are also entitled for a share in the property. These are the only points which were urged by the learned counsel for the appellants.
6. In the result, the appeal is dismissed and the decree passed by the Appellate Court is affirmed. Under the circumstances of the case, there will be no order as to costs.
7. Appeal dismissed.