1. Plaintiffs 2 and 3 in the suit are the appellants herein. They are the children of the first plaintiff, who is the wife of the first defendant. According to the plaintiffs, the second defendant is the concubine of the first defendant and defendants 3 to 6 are the children through the second defendant. The suit was laid by the mother and her two children for maintenance of the first plaintiff and for partition and separate possession of 2/3rd share belonging to plaintiffs 2 and 3.
2. The first defendant resisted the suit contending that the second defendant is not his concubine, but a lawfully wedded wife. Therefore, defendants 3 to 6 are the legitimate heirs of the first defendant along with plaintiffs 2 and 3. Thus, the plaintiffs 2 and 3 will be entitled each to 1/5th share. The claim for maintenance is resisted on the ground of voluntary desertion.
3. On these contentions, the trial Court found that the plaintiffs 2 and 3 are entitled to partition and separate, possession of their two-third share in the suit properties. A decree for maintenance was granted to the first plaintiff at the rate of Rs. 30/- per month from the date of actual partition after-the passing of the final decree. The defendants preferred an appeal and the lower appellate. Court modified the decree for partition, fixing the share of the two plaintiffs as one-fifth each. In other respects, the judgment of the trial Court was confirmed. Plaintiffs 2 and 3 have now come forward with this second appeal.
4. In this second appeal, the quantum of share alone is in dispute. According to the appellants, the lower appellate Court was not correct in fixing the share of the appellants as one-fifth each and that it should be two-third share. It is argued on behalf of the appellants that the first respondent married the second respondent only in 1953 or 1954 when the Madras Hindu Bigamy Prevention and Divorce Act of 1949 came into force. Therefore, the second marriage is invalid and the children born to her, namely, respondents 3 and 4, are not legitimate children, not entitled to any share. Thus, according to them, the father and the two sons, the appellants are entitled to one-third share each and that the judgment of the trial Court has to be restored.
5. But this contention overlooks the Amendment Act 68 of 1976. Section 16(1) of the Hindu Marriage Act, 1955, as amended reads: -
'Notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976............'
This amendment clearly gives right even to illegitimate children even though the marriage might have been void or voidable. What is more, they will share equally with the legitimate children and there is no ambiguity about it at all. Nevertheless, the learned counsel for the appellants argued that respondents 2 and 3 born out of void marriage, are entitled only to a share of the father and they cannot claim equal shares with the legitimate sons. I regret this argument cannot be accepted in the face of the clear provision in the Act. It is common ground that all the suit items are ancestral properties liable for partition. Therefore, when a demand for partition is made, all the sharers have to divide the properties equally among themselves. In other words, the illegitimate sons would get what the legitimate sons are entitled to. Thus, the father and the four sons will each take one-fifth share. The lower appellate Court was correct in fixing the shares of the parties at one-fifth each.
6. Learned counsel for the appellants placed before me the decision reported in Thulasi Ammal v. Gowri Ammal, : AIR1964Mad118 . This decision has no application whatsoever since this was rendered prior to the Amendment Act of 1976. Another decision relied on by him is Hanmanta v. Dhondavvabai, : AIR1977Bom191 , which says that a child of a void marriage is not entitled to a share in the property of which the father is a coparcener. Placing reliance on the Bombay decision, it was argued that the illegitimate children, namely, defendants 3 and 4, are not entitled to any share in the family properties. I am unable to agree. For one thing, this judgment was rendered by the Bombay High Court in a case which was filed in 1972. In other words, this case arose before the Amendment Act of 1976. For another, this decision was rendered by a learned single Judge and the amendment of 1976 does not appear to have been brought to the notice of the learned single Judge. As already stated, Section 16 of the amended Act clearly treats the illegitimate children also as if they would have been legitimate if the marriage had been valid. There is no warrant for the argument on the side of the appellants that the illegitimate children will be entitled only to a share in the self-acquired properties of the father. It is fundamental that sons, let alone illegitimate sons, cannot claim any share in the self-acquired properties of the father during his lifetime. In the present case, it is common ground that the Properties are ancestral properties. Therefore, the father and the fours sons take equal shares by virtue of die amendment.
7. The result is, there is no reason for me to interfere with the judgment and decree of the lower appellate, Court and, therefore, they are confirmed. Consequently, the second appeal will stand dismissed. No costs.
8. Appeal dismissed.