R.S. Jha, J.

1. This appeal has been filed by the appellants/defendants being aggrieved by the judgment and decree dated 23-7-1997 passed by the 2nd Additional District Judge, Sagar (Camp Khuai), in C.A. No. 11- A/1997, wherein the judgment and decree dated 29-11-1990 passed by the Civil Judge Class-I, Khurai, District Sagar, in C.S.No. 72-A/1986 has been partly set aside and the claim in the suit for partition to the extent of the rights claimed by Bhagwan Singh, respondent No. 2, has been decreed.

2. The brief facts leading to the filing of the present appeal are that Babulal, the appellant/defendant No.1 was the joint owner of property situated in Khurai alongwith his brother Damrulal alias Damodar. On the death of Damrulals first wife he had brought the respondent/plaintiff No.1 Natthibai to live with him. It was alleged in the plaint that out of cohabitation between Damrulal and Natthibai the respondent/plaintiff No. 2, Bhagwan Singh has born. On the basis of the aforesaid relationship between the parties the respondents filed a suit for partition and possession in respect of the property situated in Khurai, as mentioned and identified in the plaint map.

3. The said suit was dismissed by the trial Court by order dated 29-11-1990 by holding that plaintiff No. 1 was not married to Damrulal nor was Bhagwan Singh born from their wedlock and, therefore, they had no right to claim partition in the suit property. On an appeal being filed by the respondent/plaintiffs the first appellate Court by the impugned judgment and decree dated 23-7-1997 has decreed the claim, as far as the respondent No.2, Bhagwan Singh is concerned, holding him to be the legitimate child of Damrulal and has granted partition to the extent of half of the property.

4. The appellant/plaintiffs being aggrieved, have filed the present appeal which has been admitted by this Court by order dated 24-2-1998 on the following substantial questions of law :-

(i) Whether, having found in paragraph 22 of the judgment that Natthibai was not a legally wedded wife of Damru alias Damrulal, the Court below could have granted to the respondent No. 2 a share in the suit property to the extent of one-half

(ii) Whether the lower appellate Court was right in applying Section 16 of the Hindu Marriage Act to illegitimate child, who was not proved to have been born on account of void or voidable marriage

5. The learned senior counsel appearing for the appellant/defendants submits that there is a concurrent finding by both the Courts below that Natthibai was not the married wife of Damrulal nor was there long cohabitation between them. It is submitted that in view of the aforesaid concurrent finding of fact the first appellate Court has erred in law in applying the provisions of Section 16 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) to decree the claim made by the respondent No. 2 as in the absence of a marriage no right can be claimed by an illegitimate child, even if it is assumed that the child is born out of the physical relationship between the two persons involved.

6. The learned senior counsel, in support of the aforesaid submissions, has taken this Court through the provisions of Section 16 of the Act as well as a decision of this Court rendered in the case of Reshamlal Baswan vs. Balwant Singh Jwalasingh Punjabi, reported in 1994 MPLJ 446. [LQ/MPHC/1988/56]

7. To examine the substantial questions of law framed by this Court in detail this Court has gone through the entire record of the case.

8. From a perusal of the plaint itself it is apparent that the respondents have not stated anything about a regular legitimate marriage between Damrulal and Natthibai. The plaint itself states that Natthibai was originally married to one Nand Kishore but she left him as they could not get along together after Chhod Chhutti and, thereafter, she came to Khurai to live with Damrulal. The trial Court, after analyzing the evidence of the witnesses on record, has recorded a finding in paragraph 13 of its judgment to the effect that the plaintiff has failed to establish and prove that Natthibai was married to Damrulal in accordance with the customs prevailing in the society or that any ceremony was conducted in that regard. The same finding has been recorded by the appellate Court in paragraph 22 of the impugned judgment. It is also undisputed that this concurrent finding has not been assailed by the respondents. It is, therefore, apparent that there is concurrent finding of fact to the effect that no marriage or ceremony whatsoever was ever held to solemnize the marriage between Damrulal and Natthibai either in accordance with law or in accordance with the custom prevailing in the society and in the absence of the fact of marriage the question or the issue of the marriage being void or voidable or being in contravention of provisions of Section 11 of the Act does not arise. As the factum of marriage itself has not been established, no right accrues to the respondent No. 2 even if he is born from the physical relationship of Damrulal and Natthibai nor does he acquire any rights under Section 16 of the Act.

9. This Court in the case of Reshamlal Baswan (supra) has answered a similar question involved therein in the following terms :-

4. Marriage Laws Amendment Act, 1976 provided legitimacy to children of a marriage hit by Section 11 of Hindu Marriage Act. Section 11 provides a procedure for getting a marriage declared void if it contravenes one of the conditions of Section 5 of the said Act. The conditions under which a marriage is said to be void are those mentioned in clauses (i), (iv) and (v) of Section 5 of the said Act. Marriage between parties having a spouse living at the time of marriage is hit by this provision. This provision has been interpreted to mean that there must be a marriage, which would be hit by the provisions of this Act and would not cover a relationship resulting from any other arrangement than the marriage. That is the reason why it has been held in M. Muthayya v. Kamu and Ors., AIR 1981 NOC 172, that in those cases where there is no proof of solemnisation of marriage, the provision in Section 16 is not attracted. The two courts, in the instant case have found that there was no marriage of any type between respondent Jhunjhibai and the deceased Baswan and hence, it will have to be held that even if Baswan had died after 1976, the benefit of Section 16 of Hindu Marriage Act would not have been available to the appellant. That appears to be the reason why the learned counsel for the appellant did not seriously press the question as framed by this Court.

Maynes HINDU LAW & USAGE, 15th Edition, while discussing the provisions of Section 16 of the Act has stated as under :-

Section 16 of the Act comes into operation only in a case in which a marriage is in fact proved to have taken place between the persons which may be null and void as per the provisions of the Act. Once the factum of marriage is not proved, section 16(1) is not attracted and the children born out of such relationship cannot get the benefit of section 16(1) of the Act.

10. In view of the aforesaid provisions of law and the facts and circumstances of this case, even if it is held that respondent No.2 Bhagwan Singh was born out of the physical relationship between Damrulal and Natthibai, respondent No.1, he does not acquire any rights under Section 16 of the Act on account of the fact that there is no proof of marriage, customary or otherwise, between Damrulal and Natthibai. The substantial questions of law framed by this Court are accordingly answered in favour of the appellants/defendants.

11. As a consequence of the above, I am of the considered opinion that in view of the clear provisions of Section 16 of the Act and the law as laid down by this Court in the case of Reshamlal Baswan (supra), the first appellate Court has erred in law in decreeing the suit to the extent of the claim of respondent/plaintiff No.2, Bhagwan Singh and, therefore, the impugned judgment and decree dated 23-7-1997 passed by the lower appellate Court is accordingly set aside.

12. The appeal filed by the appellants/defendants stands allowed accordingly.