D.J. JAGANNADHA RAJU, J.

( 1 ) THIS second appeal has been referred to a division Bench as per order dated 26-7-1988 passed by our learned brother Justice G. Ramanujulu Naidu. The order of reference reads as follows :"the question raised in the second appeal is whether the illegitimate children of a person can be equated with his natural sons and treated as coparceners for the purpose of claiming a share in their joint family property In other words the scope of S. 16 (1) of the Hindu Marriage Act as amended in 1976 falls for consideration. The question is one of general importance and in the absence of any decision of this court, an authoritative pronouncement on the question by a Division Bench of this court is desirable. I therefore refer this second appeal for decision by a Division Bench of this court. Place the papers before the Honble Chief Justice for appropriate order. "

( 2 ) BEFORE we deal with the legal questions that arise for consideration in the second appeal, it would be just and proper to set out, in brief, the facts leading to the present second appeal.

( 3 ) THE plaintiffs, the appellants in the second appeal filed a suit O. S. No. 105 of 1981 on the file of the Subordinate Judge, Kothagudem for partition of the plaint schedule properties into six equal shares and allotment of one such share each to plaintiffs 1 and 2, defendants 1 to 3, and to allot the remaining 1/6th share equally among the plaintiffs and the four defendants. The plaintiffs claim that third plaintiff Rosamma and the fourth defendant Boosamma are the two wives of late Rasala Ramaiah and that Ramaiah married third plaintiff in 1951 and that the plaintiffs are the legitimate sons of Ramaiah born to third plaintiff. They claim that the marriage of their mother took place in 1951 at Bhadrachalam. D. 1 to D. 3 are the children of Ramaiah through D. 4. They claim that as they are all members of a Hindu joint family, plaintiffs 1 and 2 are entitled to seek partition and they are entitled to equal share along with the defendants 1 and 2. it is claimed that plaintiffs are each entitled to a one-sixth share plus 1 /42nd share whereas the third plaintiff and fourth defendant, the widows of Ramaiah, are entitled to 1/42 nd share each. As defendants did not effect a partition in spite of demands, a registered notice was issued and then the suit for partition was filed.

( 4 ) THE defendants resisted the suit claiming that Rasala Ramaiah never married the third plaintiff and she is not the second wife of Ramaiah. She belongs to a different community, namely, Goldsmith, while Ramaiah is Yadava by caste. Plaintiffs are not the children of Ramaiah. They are not entitled to any share. In the proceedings under the Land Ceilings Act, Ramaiah filed a declaration in C. C. No. 457 of 1975 showing only defendants 1 to 3 as his children and the fourth defendant as his wife. They claim that plaintiff No. 3 is a debaucherous lady and it is not known through whom she begot plaintiffs 1 and 2. After death of Ramaiah, when she claimed that she is the wife of Ramaiah and that plaintiffs 1 and 2 are the children of Ramaiah, to avoid litigation and at the instance of the elders of the village, two acres of land in Survey No. 152 was given to the plaintiffs in full settlement of their claims. In that connection, a document was also executed on 12-8-1977. Plaintiffs are not entitled to claim partition. They have no rights in the property of Ramaiah. Even otherwise, they are estopped from claiming any rights in the property of Ramaiah in view of the prior settlement which took place on 12-8-1977.

( 5 ) THE trial court recorded the following findings : that a marriage did take place between plaintiff No. 3 and Ramaiah but the marriage is not valid as the necessary rituals and ceremonies were not observed nor performed plaintiff No. 3 lived with Ramaiah; she can be considered to be the exclusively kept concubine of Ramaiah and that plaintiffs 1 and 2 are the illegitimate children born to plaintiff No. 3 through Ramaiah. Considering the effect of S. 16 of the Hindu Marriage Act, the court held that plaintiffs 1 and 2, who are children of an invalid marriage, should be treated as legitimate children of Ramaiah for all practical purposes. It also held that plaintiff No. 3 is not entitled to claim a share, but she is entitled to maintenance against the share of Ramaiah. If further held that as defendants 1 to 3 are the natural sons of Ramaiah and as they are members of Hindu joint family, each of them is entitled to a 1/4th share and the 1/4th share in the family properties which belongs to Ramaiah devolved upon plaintiffs 1 and 2 and defendants 1 to 4 and each of them is thus entitled to a l/24th share. The court further held that though there is some evidence of tentative arrangement of two acres of land being given to the plaintiffs, it does not stop the plaintiffs from claiming a share in the suit properties. The court directed partition of the plaint schedule properties into 24 equal shares and for allotment of one such share each to plaintiffs 1 and 2. It recognised the claim of plaintiff No. 3 for maintenance against the share of her husband late Ramaiah.

( 6 ) AGGRIEVED by the above judgment, the plaintiffs filed A. S. No. 52 of 1984 on the file of the District Judge, Khammam. The District Judge came to the conclusion that the third plaintiff is not the legally wedded wife of late Rasala Ramaiah and that plaintiffs 1 and 2, who are born to third plaintiff through Ramaiah, are to be treated as legitimate children of Ramaiah by virtue of S. 16 (1) of the Hindu Marriage Act. The appellate court further held that plaintiffs are not entitled to a decree as prayed for in the plaint and that plaintiffs 1 and 2 are entitled to 1/24th share each and the third plaintiff is entitled to maintenance against the share of her husband late Ramaiah.

( 7 ) IN this appeal, Sri P. V. R. Sharma, appearing for the appellants contends that S. 16 of the Hindu Marriage Act, especially after its amendment in 1976, has removed the disqualifications attached to illegitimate children, both for purposes of status as well as for succession. As the parties are Sudras, relying upon various decisions which dealt with the rights of illegitimate sons of a Sudra, he argued that even prior to the Hindu Marriage Act, under the Shastraic and textual Hindu law, the illegitimate son of a Sudra is entitled to claim a partition after the death of the father. Originally, he was entitled to a half share compared to the share of the legitimate son. By virtue of S. 16 (1) or S. 16 (3), now the distinction between the illegitimate son and the legitimate son is completely wiped out. Now the settled legal position is that so long as the father is alive, the illegitimate son cannot force a partition, but subsequent to the death of the father, the illegitimate son is certainly entitled to seek partition of the property and that he is entitled to parity of treatment with the legitimate son. Mr. Sharma contends that the illegitimate son becomes a coparcener along with the legitimate son and he also gets rights of survivorship as a coparcener. Mr. , Sharma contends that the disqualifications attached to an illegitimate son of a Sudra have been removed gradually by virtue of legislative changes. The old S. 16 of the Hindu Marriage Act conferred the status of legitimacy whenever the court declares that the marriage is void or a nullity. By virtue of the amendment in 1976, that right has been extended to children of marriages which are not declared as void or a nullity by a decree of the court. In the present case, as both the courts found that a marriage did take place between Rasala Ramaiah and the third plaintiff and as that marriage is found to be invalid, plaintiffs 1 and 2 are completely protected by S. 16 (1) and S. 16 (3) of the Hindu Marriage Act and they are entitled to parity of treatment with legitimate sons, namely, defendants 1 to 3. In effect, S. 16 of the Hindu Marriage Act, as it now stands, enlarges the rights of illegitimate son of a Sudra.

( 8 ) SRI S. C. Rangappa, appearing for the respondent-defendants, contends that both the courts held that there is no proof of marriage and as parties to the marriage belong to different castes, S. 16 of the Hindu Marriage Act has no application to the present plaintiffs and plaintiffs can only claim rights as illegitimate children born to a concubine. They cannot claim rights as children of a wife whose marriage with Ramaiah is a nullity or void. He also contends that as Ramaiah died in 1975 in an undivided status and as the property is the ancestral property, there is no question of his illegitimate children being entitled to a share in the properties. He places strong reliance on a catena of decisions and relies very strongly on the law laid down by the Madras High Court in Sivagnana Vadivu Nachiar v. Krishna Kanthan, ILR 1977 Mad 216 : (1976) 89 Mad LW 706. Mr. Rangappa contends that cases of children born to concubines stand on a different footing and plaintiffs 1 and 2 are not entitled to seek partition.

( 9 ) THE crucial question for consideration in this appeal is whether plaintiffs 1 and 2 are entitled to the benefit of S. 16 of the Hindu Marriage Act as amended in 1976 and whether plaintiffs 1 and 2 are entitled to claim partition of the properties of their late father Rasala Ramaiah who died in 1975 If they are entitled to claim partition, what is the share to which each of the plaintiffs 1 and 2 are entitled

( 10 ) TO answer the question referred to the Division Bench, we have to consider the legal position relating to the rights of an illegitimate son of a Sudra at different points of time. The first stage would be the legal position as per the Shastraic and textual Hindu law and how it was understood and interpreted by courts prior to the enactment of the Hindu Marriage Act of 1955. The second stage is the law after the advent of S. 16 of the Hindu Marriage Act, 1955. The third stage is the legal position emerging as a result of amendment of S. 16 in the year 1976.

( 11 ) AS both the courts have recorded concurrent findings of fact regarding the factum of a marriage taking place between Rasala Ramaiah and third plaintiff and as both the courts have held that the marriage is invalid for want of non-observance of the necessary rituals and ceremonies, it is not necessary for this court to go into that question. Both the courts have concurrently found that plaintiff No. 3 lived as the exclusively kept concubine of Ramaiah and plaintiffs I and 2 were born to plaintiff No. 3 through Ramaiah. On the settled facts, what is the legal position is the only question that will have to be considered by us.

( 12 ) THE rights of an illegitimate son are the subject of special rules in the Mitakshara. Illegitimate sons of the Dwijas are entitled to nothing but maintenance. The illegitimate son of a Sudra by a permanently kept concubine has the status of a son and is a member of the family. But he does not acquire on his birth a joint interest with his father in the ancestral family. He cannot enforce a partition against his father during his life time. If a partition is made during the fathers life time, he will be allotted a share by the fathers choice. But if a partition is made after the fathers death the brethren should make him a partaker of the moiety of a share. On a partition, the illegitimate son takes only half of what he would have taken if he were a legitimate son. He succeeds, therefore, under the Mitakshara law to the fathers estate as a coparcener with the legitimate son with the result that on the death of the latter before partition, he becomes entitled to the whole estate by survivorship. (See paragraph 448 of Maynes Hindu Law 12th Edition at page 691 ). Illegitimate sons in the three higher classes never take as heirs, but are only entitled to maintenance from the estate of the father. The right is a personal right and not heritable. The illegitimate son of a Sudra may, however, in certain circumstances, inherit either jointly or solely. Manu says, a son begotten by a man of the servile class on his female slave, or on the female slave of his male slave, make take a share of the heritage, if permitted (by the other sons)"yagnavalkya enlarges the rule as follows :"even a son begotten by a Sudra on a female slave (dasiputra may take a share by the fathers choice. But if the father be dead, the brethren should make him partaker of the moiety of a share; and one who has no brothers may inherit the e whole property in default of a daughters sons. "the Mitakshara explaining the latter part says :"however, should there be no sons of the wedded wife the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. . . . . "jimutavahana explains the text of Manu in the following manner :"the son of a Sudra by a female slave, or other unmarried Sudra woman, may share, equally with other sons, by consent of the father. " (See para 555 Maynes Hindu Law 12th edition at pages 772 and 773 ). Courts have gradually construed Dasiputra as equal to the illegitimate sons born to a Sudra woman kept as exclusive concubine.

( 13 ) WE shall now refer to decisions which dealt with legal position as per the Hindu Law texts and which indicate the position prior to the advent of Hindu Marriage Act.

( 14 ) RAJU v. Arunagiri, AIR 1933 Mad 397 [LQ/MadHC/1933/3] is a Division Bench decision of the Madras High Court. This decision, following Vellaiyappa Chetty v. Natarajan, AIR 1931 PC 294 [LQ/PC/1931/98] and after reviewing the case law, held that on the death of the father, an illegitimate son of a Sudra becomes a coparcener with the legitimate sons and takes the estate jointly as such with rights of survivorship although the illegitimate son would only take a half of what he would have been entitled to if legitimate. The court also pointed out that he is entitled to sue for partition irrespective of the fact whether the property left by the father is ancestral or self-acquired. Gur Narain v. Gur Tahal Das, AIR 1952 SC 225 [LQ/SC/1952/34] approved the dictum in Vellaiyappa Chetty v. Natarajan (supra) and laid the law as follows (at p. 227 of AIR) :"their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property. "then their Lordships added that this statement of the law should be supplemented by three other well settled principles. They are, firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the letters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son (s) with a right of survivorship and is entitled to enforce partition against the legitimate son (s), and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son. "

( 15 ) SINGHAI Ajit Kumar v. Ujayar Singh, AIR 1961 SC 1334 [LQ/SC/1961/123] is a decision of the Supreme Court which discusses the textual law as per the Mitakshara and reviewed the earlier decisions and laid down the law as follows (para 7) :"the law pertaining to the right of inheritance of an illegitimate son to his putative fathers self-acquired property may be stated thus : An illegitimate son has the status of a son under the Hindu Law and he is a member of the family. But his rights are limited compared to those of a son born in wedlock. He has no right by birth and, therefore, he cannot demand partition during his fathers lifetime. During the lifetime of his father, the law allows the illegitimate son to take only such share as his father may give him. But on his fathers death, he takes his fathers self-acquired property along with the legitimate son and in case the legitimate son dies. He takes the entire property by survivorship. Even if there is no legitimate son, the illegitimate son would be entitled to moiety only of his fathers estate when there is a widow, daughter or daughters son of the last male holder. In the absence of any one of the three heirs, he succeeds to the entire estate of his father. "the court further observed, (at p. 1337 of AIR)"once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative fathers entire self-acquired property in the absence of a son, widow, daughter or daughters son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widows death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. "

( 16 ) DORAI Babu v. Gopalakrishna, AIR 1960 Madras 501 lays down that the illegitimate son of a Sudra would be entitled to inherit to his putative father alone with his legitimate son or failing legitimate son, with his widow, daughter or daughters son if there were non of these, the illegitimate son would take the estate in preference to the other heirs Such an illegitimate son has the status of a son and is a member of the family. But he does not, by that reason, acquire, on his birth, an interest in the property of his putative father. He has no right in regard to the property so long as the latter is alive. He could not, therefore, enforce a partition against his father during his lifetime. But this does not preclude the father, by his own volition, from giving him a share. Indeed, if the father has legitimate as well as illegitimate sons, he could, at a partition, give his illegitimate son an equal share with his legitimate son. But on the death of the father, the illegitimate son gets a right to a share, and if there is a legitimate son, he would be a coparcener with him, with rights of survivorship inter se, in regard to the property of the father self acquired or separate. This rule would apply even to a case where the father dies leaving ancestral property, so long as there are no other coparceners of the same degree as the father interested in such property.

( 17 ) IT may be pointed out that the above four decisions, namely, Raju v. Arunagiri, (AIR 1933 Mad 397 [LQ/MadHC/1933/3] ) (supra), Our Narain v. Gur Tahal Das, (AIR 1952 SC 225 [LQ/SC/1952/34] ) (supra), Ajit Kumar v. Ujayar Sing, (AIR 1961 SC 1334 [LQ/SC/1961/123] ) (supra) and Dorai Babu v. Gopalakrishna, (AIR 1960 Mad 501 [LQ/MadHC/1960/60] ) (supra) dealt with the legal position prior to the advent of the Hindu Marriage Act, they all follow Villaiyappa Chetty v. Natarajan, (AIR 1931 PC 294 [LQ/PC/1931/98] ) (supra ).

( 18 ) AS regards the decisions of the Andhra Pradesh High Court on this aspect, we find that a Division Bench of the Andhra Pradesh High Court in Raghavendra Rao v. Rajeswara Rao, (1974) 2 Andh WR 245 followed Vellaiyappa Chetty v. Natarajan (supra), Our Naraian v. Gur Tahal Das (supra) and Ajit Kumar v. Ujayar Sing (supra) and held that the illegitimate son of a Sudra does not acquire by birth any interest in his fathers estate; he cannot therefore enforce a partition against his father in his life-time; on the fathers death, however, he succeeds to his estate as a coparcener with the legitimate son of his father with a right of survivorship and he then becomes entitled to enforce a partition against the legitimate son. (See para 23 at page 253 ).

( 19 ) COMING to the legal position after the-Hindu Marriage Act came into existence, we find that original Section 16 laid down that 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. The first decision of Andhra Pradesh High Court which dealt with the effect of section 16 of the Hindu Marriage Act on the rights of an illegitimate son of a Sudra is Lakshmamma v. Narasamma, (1978) 2 ALT 205 ). In this decision, Justice Jeevan Reddy considered the scope and effect of old Section 16 as well as the amended Section 16 of the Hindu Marriage Act. The facts of that decision are relevant to understand the principle enunciated by the court. One Nara-sappa, who died on 3-4-1966, had two wives. The plaintiffs mother is the second wife. After the death of Narasappa, the second wife and plaintiff filed a suit O. S. No. 35 of 1968 for partition and separate possession of their share in the estate of Narasappa. That suit was dismissed on two grounds; one, that the marriage of the second wife with Narasappa being a nullity, she cannot have any claim in the properties two, since the present plaintiff was born before the declaration of nullity was obtained, plaintiff is disentitled from any share in the properties of Narasappa. After that suit was dismissed, the second wife filed an application under Section f 1 of the Hindu Marriage Ac O. P. No. 45 of 1969 and obtained decree of annualment of the marriage on 8-12-1971. An appeal filed against that order ended in dismissal. Then the second suit was filed claiming for partition and separate possession of 1/3rd share. In such a context, the court dealt with the legal position of the illegitimate child. One other peculiar fact is that the second suit for partition was dismissed on 29-9-1975 and when an appeal was filed and the appeal was pending, Section 16 of the Hindu Marriage Act was amended. Old Section 16 was replaced or substituted by a new one. The appellate court held that amended Section 16 comes to the rescue of the plaintiff and that she is entitled to the share in the properties of Narasappa. After quoting the provisions of amended Section 16, the learned judge observed in paragraph 6 as follows :"a reading of sub-section (1) in my opinion, does not leave any doubt that the Parliament intended to benefit all the children before or after the commencement of the Amendment Act and those born before or after the decree of nullity, by declaring them as legitimate. Sub-section (3) also provides clue to the intention of the Parliament that such declaration of legitimacy was not intended to be an empty one but was supposed to be integrally connected with the devolution of properties also. The section says that the children born of void marriages shall be deemed to be legitimate as if the marriage had been valid, notwithstanding the fact that the marriage is declared to be a nullity whether before or after the birth of the child, and notwithstanding the further fact that the child is born before or after the amendment. As a result of the said section, the plaintiff must be deemed to be the legitimate child of Narasappa. If she is a legitimate child, she would be undoubtedly entitled to a share in the properties of Narasappa. Accepting the respondents contention would mean that the plaintiff would be deemed to be a legitimate child of Narasappa only from the date of coming into. force of the Amendment Act, she would be the legitimate daughter of Narasappa, but shall have no share in his properties. Such could not have been the intention of the Parliament. If she is legitimate, she is legitimate from her birth. In other words, she is a legitimate child of Narasappa for all purposes. If so, she is entitled to a share in his properties according to law. "

( 20 ) THE second decision which dealt with. the effect of Section 16 of the Hindu Marriage Act is a single judge decision reported in Goverdhan Singh v. Hiraman Singh, (1980) 2 ALT 210. His Lordship Justice Chenna-kesav Reddy first dealt with the scone and effect of Section 16 as it stood unamended and observed at page 213 as follows :"the section deals with legitimacy of children of void and voidable marriages. It declares that if the marriage is annulled at the instance of either party under Section 11 or 12, children born of such marriage shall be deemed to be the legitimate children of the parents for all intents and purposes except that by virtue of the proviso to the section they cannot claim any rights in or over the properties of any person other than the parents. The legal fiction thus created places a limitation on the applicability of the benefit to children of marriages annulled under Section 11 or 12. In other words, it is the decree of nullity that entitles the children to the stamp of legitimacy and if that decree is wanting the children are illegitimate. "

( 21 ) AFTER having dealt with the unamended Section 16, His Lordship considered the effect of amendment to Section 16 effected by Section 19 of the Marriage Laws (Amendment) Act, 1976, and observed at page 214 as follows :"this amendment was made to remove certain anomalies and handicaps that had come to light after the passing of the Hindu Marriage Act, 1955. By the amendment the sweep of Section 16 has been widened and even where the marriage is null and void and under Section 11 any child of such marriage shall be legitimate whether or not a decree of nullity is granted in respect of that marriage under the and whether or not the marriage has been found void otherwise than on a petition under the. Thus the section declares the legitimacy of a child even when the marriage between the parents is held to be void otherwise than on a petition under the. The limitation or doubts placed on the applicability of the benefit by the old section have been removed. It is well settled that a marriage which is null and void ipso jure and is declared to be void by the Court or annulled by the Court on the grounds of its voidability will have the inevitable effect of bastardizing any child born to such parties. The effect of a decree of a nullity in the case of a void marriage or annulment of voidable marriage is to render the marriage null and void from its inception for all intents and purposes. The Legislature enacted the section to see that in no case the children of persons whose marriage is solemnized but is void or voidable under Section 11 or 12 of the will be regarded as illegitimate children. "

( 22 ) HANMANTA v. Dhondavvabai, AIR 1977 Bombay 191 is a single judge decision of the Bombay High Court. The facts of that decision are very peculiar. There, the legitimate son filed a suit for partition against the father and the father claimed that his illegitimate son born to the second wife, with whom his marriage is void, is also entitled to a share. In such a context, the court held that in spite of Section 16 of the Hindu Marriage Act, a child of a void marriage is riot entitled to a share in property of which father is a coparcener. This decision does not discuss either the textual Hindu law or the decisions which dealt with the rights of the illegitimate son of Sudra. The court did not also indicate whether by virtue of Section 16 of the Hindu Marriage Act (unamended Section 16), the illegitimate son got any rights to the property. With utmost respect to the learned judge, we are unable to follow this decision for two reasons: (1) the court did not consider the effect of Section 16 on the rights of an illegitimate son. It did not go into the question whether the status of legitimate son conferred by Section 16 has enlarged his rights; (2) the decision makes observations which are contrary to the principles laid down in Gur Narain v. Gur Tahal Das, (AIR 1952 SC 225 [LQ/SC/1952/34] ) (supra) and Ajit Kumar v. Ujayar Singh, (AIR 1961 SC 1334 [LQ/SC/1961/123] ) (supra ).

( 23 ) THERE are two decisions of the Madras High Court rendered by Justice Singaravelu which have created some confusion regarding the rights of illegitimate son of a Sudra. The first decision is Margabandhu v. Kothan-darama, (AIR 1984 Mad 270 [LQ/MadHC/1983/196] ). His Lordship, dealing with Section 16 (1) of the Hindu Marriage Act as amended in 1976, observed as follows (para 5 of AIR) :"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. "subsequently the learned judge virtually reversed this decision when a review application was filed and the decision rendered on review is in Margabandhu v. Kothandarama Mandhiri, (1987) 2 Mad LJ 267. The learned judge observed in paragraph 4 that after he pronounced the judgment granting equal shares for the legitimate as well as illegitimate children, a review application was filed and that petition was allowed and the second appeal was restored by consent. The learned judge observed that the earlier decision in Sivagnanavadivu Nachiar v. Krishna Kan-than (ILR (1977) 1 [LQ/KerHC/1975/53] Mad 216) (supra) was not brought to his notice earlier and in view of the Division Bench decision, the illegitimate children are entitled only to a share in their fathers share and they cannot claim equal share along with the legitimate children. It may be pertinent to point that the learned judge did not deal with the question as to what is the effect of Section 16 of the Hindu Marriage Act on the rights of the illegitimate children.

( 24 ) IN Perumal Gounder v. Pachayappan, AIR 1990 Mad 110 [LQ/MadHC/1989/291] , a single judge of the Madras High Court observed that an illegitimate child cannot claim partition. Though by virtue of section 16 of the Hindu Marriage Act, such a child is treated as legitimate, such child does not become a coparcener. A reading of the full judgment indicates that it is a case where the suit for partition was filed by the second wife on behalf of her sons against the husband and the husbands first wife. The court found that her marriage is void and only by reason of Section 16 of the Hindu Marriage Act, her children have been declared to be the legitimate children and as property is the joint family property, her children cannot be treated as coparceners entitled to a share in the suit properties along with their father. Dealing with section 16 (1) and Section 16 (3) of the amended Section, the court observed as follows (at p. 114 of AIR) :"under section 16 (1) and (3) of the Hindu Marriage Act, there is no question of the conferment of the status of a coparcener on a person like the first respondent herein. On the other hand, right over the properties of the parents alone has been conferred on respondents 1 and 2 treating them as legitimate children of the first appellant. Considering the restricted statutory right so conferred, the first respondent cannot claim to be a member of the coparcanary along with the first appellant and on that footing seek the relief of partition in relation to the joint family properties. "his Lordship referred to Sivagnana Vadivu Nachiar v. Krishnakanthan, (ILR (1977) 1 [LQ/KerHC/1975/53] Mad 216) (supra) and pointed out that according to that decision, by virtue of Section 16 of the Hindu Marriage Act, children born of void marriages would be legitimate and such legitimization relates back to the date of their birth, but that the proviso forbids the conferment of any right on the legitimatized children in the properties of another person other than the parents and the policy appears to be not to enable such children to have full rights as legitimate sons and daughters. The learned judge also referred to the contrary view and the confusion created by the two decisions in Margabandhu v. Kothandarama Mandhiri, (AIR 1984 Mad 270 [LQ/MadHC/1983/196] and (1987) 2 Mad LJ 267) (supra ).

( 25 ) THE above decision of His Lordship clearly points out two aspects. (1) Section 16 while conferring the status of legitimate children does not give such children the right to demand a partition during the lifetime of the father. (2) It docs not also give them a right to interfere or affect with the rights of the legitimate children and the father in the joint family properties. But the same legal position cannot hold good once the father dies in a divided status. It has been held by the Privy Council and the Supreme Court that after the death of the father, the illegitimate children are certainly entitled to claim partition even if the property left by the father is joint family property.

( 26 ) MAHILA Mathuro Bai v. Ramavati, AIR i990 Madh Pra 276 is a single judge decision which lays down that long cohabitation gives rise to a presumption of marriage even in the case where the first husband of the woman was alive and there is no proof of a valid divorce between the two. The court also held that if the marriage is considered to be void for any reason, then Section 16 comes to the rescue of the illegitimate children. The court observed in paragraph 6 as follows :"even for arguments sake it is considered that the marriage was not legal and void the right of the children to the property left by Fodal Singh is not destroyed in view of the provisions of Sec. 16 of the. The provision of S. 16 is for the benefit of such children and has to be applied in full, so as to confer status with interest in property. A bare reading of Sec. 16 clearly shows that it removes the disability of right of such children so far as the property of their parents is concerned. "

( 27 ) IN that decision, the court also observed that only parties to the marriage and their children can challenge the validity and legality of the marriage and legitimacy of the children, and third parties cannot raise such a dispute.

( 28 ) LAXMIBAI v. Limbabai, (AIR 1983 Bombay 222) is a single judge decision of the Bombay High Court. The learned judge dealt with Section 16 of the Hindu Marriage Act, both before the amendment and after the amendment and its effect on the Hindu Succession Act provisions and observed that section 16 enacts a complete code with regard to the off springs of void or voidable marriages: Firstly it declares the status of such a child being one as legitimate. Secondly it recognises rights in the property of the parents. The provision itself thus is for the benefit of the children and will have to be applied in full so as to confer status with interest in property. This provision thus removes the disability of such children as far as the property of their parents is concerned. "then dealing with the provisions of the Hindu Succession Act in conjunction with legitimacy conferred by reason of Section 16 of the Hindu Marriage Act, court observed at page 225 as follows :"the Hindu Succession Act itself does not define the words "son" or "daughter". They are the persons who are classed as heirs and the term "heir" means any person male or female, who is entitled to succeed to the property of an intestate under the Hindu Succession Act (Section 3 (f) ). The terms son" and "daughter" which are included as (he persons entitled to succeed as heirs in Class I, are the descriptive natural terms indicating off-springs having only the sex differentia, "son" indicating the male off-spring and "daughter" indicating the female off-spring. It is well settled rule of interpretation that if the statute uses the natural words, then full effect should be given to the same. What was intended by the Law of Succession was to confer the rights of succession upon the persons, who answer the terms and descriptions available in class 1. To be covered by that class and to be the son or daughter, it has to be shown that the person was born to the Hindu who has died intestate. If the description is answered, then, unless there is any thing contrary to disqualify such an heir mentioned expressly as entitled to succeed, it will not be possible to exclude such person from the rights of succession. "

( 29 ) AS per this decision, after Section 16 is amended, the illegitimate children of a void marriage are treated on par with the legitimate children in all respects including the right of succession. This decision has come in for some criticism at the hands of a Division Bench of the Bombay High Court in Shantaram v. Dagubai, AIR 1987 Bombay 182. The Division Bench in paragraph 15 of the judgment pointed out that Justice Masodkar in Laxmibai v. Limbabai, (AIR 1983 Bombay 222) (supra), failed to consider whether Section 16 of the Hindu Marriage Act controlled Section 3 (1) (j) of the Hindu Succession Act and that the learned judges judgment ignores the definition of "related" given in Section 3 (1) (j) of the Hindu Succession Act. Section 3 (1) (j) of the Hindu Succession Act reads as follows : ""related" means related by legitimate kinship provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one. another; and any word expressing relationship or denoting a relative shall be construed accordingly. " It is true that in Laxmibai v. Limbabai (supra), His Lordship did not specifically refer to Section 3 (1) (j) which defines "related". But his lordship in his very elaborate and learned judgment clearly indicated that Section 16 of the Hindu Marriage Act enacts a complete code with regard to the off-spring of void or voidable marriages and indicated what exactly are the benefits given to such children by Section 16. Referring to Sections 24 to 28 and the definition "heir" in Section 3 (f) of the Hindu Succession Act, His Lordship pointed out that unless there is anything contrary to disqualify a legitimatised heir, legitimatised heir cannot be excluded from succession. The Division Bench in paragraph 21, dealing with Section 3 (1) (j) of the Hindu Succession Act and Section 16 of the Hindu Marriage Act, observed as follows :"the legitimacy, therefore, created by S. 16, Hindu Marriage Act, must be read into as a part of the definition in S. 3 (1) (j), Hindu Succession Act. It would be unreasonable to suppose that S. 3 (j) would nullify the effect of a provision contained in an earlier Act when either by express words or by necessary implication it does not do so. "the court further observed in paragraph 23 as follows:--"it is, therefore, perfectly legitimate to import the meaning of legitimacy contained in S. 16, Hindu Marriage Act, into the provisions of the Hindu Succession Act; especially when in the latter Act there is no exclusion of such legitimacy while interpreting the provisions of the Hindu Succession Act. "in paragraph 27, the Division Bench summarised the propositions of law as follows:". In regard to a child of a void marriage : (1) a child of a marriage which is void under the provisions of Hindu Marriage Act, whether a decree of nullity is passed or not, is a legitimate child S. 16 (1), Hindu Marriage Act, (2) Such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him right to property of his parents. (S. 16 (3), Hindu. Marriage Act); (3) The property to which such a child can lay claim must be the separate property of the parents and not the coparcenary property in which the parent has a share (Contrary view in Raghunath v. Nana, (1985) 87 Bom LR 488 is not the correct law; (4) Since no child, whether legitimate or otherwise, acquires right by birth in the separate property of its parent, a child of a void marriage can only succeed to the property of its parents in accordance with the provisions of S. 8 or S. 15, Hindu Succession Act; (5) A child of a void marriage is related to its parent within the meaning of S. 3 (1) (j), Hindu Succession Act because of the provisions of S. 16, Hindu Marriage Act; proviso to S. 3 (1) (j) must be confined to those children who are not clothed with legitimacy under S. 16, Hindu Marriage Act.. In regard to a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act : (1) Section 25, Hindu Marriage Act, confers upon a woman, whose marriage is void or is declared to be void, a right of maintenance against her husband. (2) This right of maintenance can be enforced by her not only in proceedings under S. 25, Hindu Marriage Act, but also in any other proceedings where the validity of her marriage is determined; (3) This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death; (4) Of course, this right of maintenance is available only during her lifetime and ceases if she remarries. "

( 30 ) THE respondents advocate mainly relied upon Sivagnanavadivu Nachiar v. Krishnakanthan, (ILR (1977) 1 [LQ/KerHC/1975/53] Mad 216) (supra ). A reading of that decision indicates that the Division Bench considered the effect of Section 16 and its proviso (prior to the amendment) and observed as follows :"but having made it clear that the children born of such marriage would be regarded as legitimate children, notwithstanding the decree for nullity, which would otherwise have the effect, because of the relation back principle, of enabling such children for purpose of succession, the right of such children to inherit should be limited and confined to the interest of their parents. The effect of the proviso is to limit the logical result of legitimization with, relation back to the date of birth. The proviso forbids conferment of any right on the legitimatized child in the property of any person other than the parents, where, but for the passing of the, such child could have been incapable of possession or acquiring any such rights by reason of his not being the legitimate child of his parents. In other words, if S. 16 were not there, the result of declaring the marriage as nullity would be to regard the children born of such marriage as illegitimate in which case, they would not be entitled to any share at all in the properly of the father, or to inherit any other property. But because of the legitimization, they should be regarded as legitimate sons born of the marriage declared void. But, in that case, the policy of S. 16 taken along with proviso appears to be not to enable such child to have the full rights of legitimate sons. "

( 31 ) THE Division Bench simply considered the scope of unamended Section 16 of the Hindu Marriage Act, but did not refer to this decisions of Guru Narain v. Guru Tahal Das, (AIR 1952 SC 225 [LQ/SC/1952/34] ) (supra), Raju v. Aranagiri, (AIR 1933 Madras 397) (supra) and Ajit Kumar v. Ujayar Singh, (AIR 1961 SC 1334 [LQ/SC/1961/123] ) (supra ). While the Supreme Court and the Privy Council indicated that the illegitimate son of a Sudra, after the fathers death, is entitled to partition and is also entitled to rights of survivorship and that they become coparceners with the legitimate sons, the Division Bench gave its decision without considering the earlier case law. Assuming for a moment the decision of the Division Bench is a correct interpretation of Section 16 prior to its amendment, the same cannot hold the field after Section 16 of the Hindu Marriage Act has been amended in 1976. Reading the principle laid down by the Madras High Court in this decision in comparison to the law laid down by the Shantaram v. Dagubai, (AIR 1987 Bombay 182) (supra), we prefer to follow the Bombay High Courts view which gives a more liberal interpretation and takes into consideration the object of Section 16 and its amendment. We do not wish to follow the restrictive interpretation given by the Madras High Court.

( 32 ) MR. S. C. Rangappa contended that Section 16 as amended cannot have the effect of diminishing the shares of legitimate sons in the joint family property of their father and under Section 16 (3), the rights of succession of legitimatized sons are confined only to the separate property of their parents. This argument is neither correct nor acceptable. As pointed out supra, even prior to the advent of Section 16 of the Hindu Marriage Act, the illegitimate sons had the right to demand partition of the fathers estate after the death of the father. He gets rights as member of the family and as a coparcener. He also gets rights of survivorship. Once father is divided from the joint family, whether his estate consists of ancestral property or separate property or partly ancestral or partly separate property, the legitimatized son is entitled to equal share along with the natural son. In the present case, we are dealing with a father who is divided from his brothers and we are dealing with the property of a deceased father. In our view, the restriction regarding not affecting the rights of shares of others is confined to the shares of the undivided brothers of the father. It does not apply to the rights or shares of the natural sons. Now under the amended law, the legitimatized son has to be equated with the natural son.

( 33 ) FROM the principles enunciated in the various decisions discussed above, it is quite clear that even prior to the advent of S. 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 of a Sudra is entitled to enforce a partition after the fathers 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 Hindu Succession Act. A child of void marriage is related to its parents within the meaning of S. 3 (1) (j) of the Hindu Succession Act by virtue of S. 16 of the Hindu Marriage Act. Proviso to Section 3 (1) (j) must be confined to those children who are not clothed with legitimacy under S. 16 of the Hindu Marriage Act. In conclusion, we hold that by virtue of S. 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 see a partition. He can seek a partition only after the death of the father.

( 34 ) IN this view of the matter, we hold that the suit of the plaintiffs for partition should be decreed. In the joint family property, the first and second plaintiffs along with the defendants 1 to 3 and their father, who is now deceased, would be entitled to l/6th share each. The 1 / 6th share of the father, by reason of his death, would devolve upon the plaintiffs 1 and 2, defendants I to 3 and the widow, the fourth defendant. The right of the third plaintiff for maintenance against the estate of the husband is recognised. Thus each of the plaintiffs 1 and 2 would be entitled to a 7/ 36th share. So also, defendants 1 to 3 would be entitled to a 7/36th share each. The fourth defendant would be entitled to 1/36th share.

( 35 ) THE second appeal is allowed to the extent indicated above. Each party shall bear its own costs.

( 36 ) ORAL LEAVE:-- An Oral application is made for leave to file an appeal in the Supreme Court. As this case does not involve a substantial question of law of general importance which needs to be decided by the Supreme Court, the request for leave is rejected. Appeal allowed.