1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 453 OF 1989 Sopoanrao Yeshwantrao Navghare .. APPELLANT VERSUS 1- Shivaji Sopanrao Navghare 2- Kausalyabai alias Kausa w/o Sopanrao Navghare 3- Vastalabai Ramrao .. RESPONDENTS Shri S.B. Parnere, Advocate holding for Shri S.T. Shelke, Advocate for the appellant. Shri S.S.Phatale with shri S.B. Choudhari, Advocates for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 24 th June, 2009. ORAL JUDGMENT : 1- This is an appeal by original defendant no. 3 raising exception to the judgment and order passed by the District Judge,Parbhani on 22-6-1989 in RCA No. 26/1982 thereby modifying the judgment and decree passed in RCS no. 2/1975 by the Jt. Civil Judge, Parbhani on 5-1-1982. 2- Defendant no. 2 Sopanrao is the son of defendant nos. 1 and 2 and husband 2 of plaintiff no. 2. Plaintiff no. 1 is a son born to defendant no. 3 and plaintiff no. 2. Plaintiff instituted suit claiming partition and separate possession. In the alternative, prayer is also made seeking maintenance allowance. According to plaintiffs, property in dispute belongs to the joint family consisting of plaintiffs and defendants. According to plaintiff no.2, after her marriage with defendant no. 3, she did not deliver any child for a period of three years. As such, defendant no. 3 Sopanrao got married second time with one Rukhminibai. Thereafter plaintiff no. 2 gave birth to a child. The matrimonial relations between the husband and wife were strained and as such, plaintiff no. 2 was forced to leave the matrimonial home and, accordingly, she went to reside with her parents. It thereafter transpires that Sopan defendant no. 3 intended to sell the ancestral property. Thus, in order to safe-guard the interest of plaintiff no. 1 who has a school going boy, the plaintiffs instituted suit claiming partition and separate possession. Initially, plaintiffs claimed 2/9 th share in the suit property. After institution of the suit, plaintiffs sought certain amendments to the plaint. By way of amendment, it is contended that if the court comes to the conclusion that partition of the property cannot be effected as defendant no. 3 is in joint possession with defendant no. 1 his father, the plaintiffs be awarded maintenance at the rate of Rs.600/- per month. Defendants resisted the suit by filing written statement. It is contended by defendant no. 3 that infact, defendant no. 2 is not his first wife. However, he married with Rukhminibai earlier to his getting married with plaintiff no.2. According to him, therefore, plaintiffs are not entitled to claim either maintenance or separate share in the property. 3 3- Trial court after recording evidence of the parties recorded finding that defendant has failed to establish that his marriage with plaintiff no. 2 was solemnised after his first marriage with Rukhminibai. Trial court recorded finding that plaintiff no. 2 has established that she is the first wife of defendant no. 2. Trial court, however, in the circumstances, instead of granting decree of partition, directed the defendants to pay maintenance at the rate of Rs.275/- per month. Judgment and decree passed by the trial court was subjected to challenge at the instance of plaintiffs in RCA No. 26/82. Defendant no. 3 also raised challenge to the judgment and decree passed by the trial court by presenting RCA No. 15/82. First appellate court took up both the appeals for consideration and after hearing the parties allowed the appeal presented by original plaintiffs and granted decree of partition and separate possession in their favour whereas appeal presented by defendant also came to be partly allowed and the order in respect of grant of maintenance came to be set aside. Defendant no. 2 being aggrieved by the judgment and decree passed by the first appellate court in RCA No. 26/1982 has approached this court by presenting the instant appeal. 4- At the stage of admission of appeal this court found that ground nos. 1, 2, 4, 8 and 9 involve substantial question of law. Those are :- 1- That the judgment and decree under appeal is contrary to the provisions of Order XLI, rule 31 of the Civil Procedure Code. The failure to follow the mandatory requirement of this statutory provision of the Civil Procedure Code has vitiated the judgment and decree 4 under appeal. 2- That the trial court has considered the case of the plaintiffs simpliciter from the point of granting relief by way of maintenance only and the question of granting relief by way of partition was not at all found feasible and tenable. Learned trial Judge has also recorded a finding that the plaintiffs have given up the claim of partition to the suit property in their evidence in para 8 of the judgment. This has been completely over looked by the learned District Judge at the time of passing the impugned judgment and decree under appeal. 4- That in a suit for partition, it is absolutely essential to have all the parties interested and entitled to have share therein. Suit filed by the plaintiffs without impleading the other wife and son of this appellant was incompetent and on that ground alone the same ought to have been dismissed. 8- That the determination of the shares of the plaintiffs in the suit property by the learned District Judge without deciding the question of impleading all necessary parties and their respective share is totally illegal and unwarranted. 9- That the plaintiffs have claimed in the suit 2/9 th share by way of partition in the suit property. There has bee no amendment in the plaint. No larger share is claimed by the plaintiffs. It was an error of law on the part of the learned District Judge to grant one half share to the plaintiffs in the suit property. 5 5- I have heard arguments advanced by learned counsel for the respective parties. It is strenuously urged by learned counsel for the appellant that the first appellate court has committed an error in granting decree of partition while entertaining the appeal by original plaintiff. It is also contended that defendant no. 3 has established that plaintiff no. 2 is his second wife and as such, in any eventuality, plaintiffs cannot be held entitled to have share in the ancestral property. It is also tried to canvass that even assuming that plaintiff no. 2 is the first wife and is entitled to have share in the property, the first appellate court ought not to have passed decree in the absence of second wife and the son born to second wife out of her wedlock with defendant no. 2. 6- I have perused the judgment and order passed by both the courts below. So far as the finding of fact in respect of plaintiff no. 2 being the first wife of defendant no. 2 is concerned, the trial court on assessment of the evidence placed on record has recorded finding that plaintiff no. 2 has established that she is the first wife and further that defendant no. 2 has failed to establish that he was already married with one Rukhminibai before his alleged marriage with plaintiff no. 2. Apart from the evidence placed on record, it is to be noted that Rukhminibai wife of defendant no. 2 Sopan was residing with him under the same roof. She was the best witness in the matter to depose with a view to support the defence raised by defendant no. 2. However, defendant no. 2 did not examine Rukhminibai before the trial court. Plaintiff no. 2 has deposed that her marriage with defendant no. 3 is prior in time and there are two 6 issues born to her out of the wedlock. Evidence lead by the plaintiff coupled with the ocular evidence of witness goes to establish her case. Defendant apart from denying the contentions has not placed on record the best possible evidence. Trial court has therefore recorded finding of fact in respect of the marriage of plaintiff no. 2 with defendant no. 3 and has held that the said marriage is prior in time and further that defendant no. 3 has failed to establish that he was already married before his marriage with plaintiff no. 2. Trial court, while dealing with the matter was right in awarding maintenance for the reason that the partition of the joint family property could not have been effected without consent of defendant no. 3 as he was joint with his father Yeshwantrao at the relevant time. However, when the appeal was taken up for hearing before the appellate court, further development that father of defendant no. 3 Yeshwantrao was already dead, is taken note of by the appellate court. There was therefore no impediment in awarding decree of partition at the instance of plaintiff no. 1 who is the son of defendant no. 3. Appellate court therefore taking note of death of grand father of plaintiff and father of defendant no. 2 proceeded to pass a decree directing partition of the property and, I do not find that the first appellate court has committed any error in that regard. It is contended by appellant that in the absence of the second wife Rukhminibai and her son the first appellate court should not have proceeded to pass decree directing partition of the property. It is contended that the son born to Rukhminibai was entitled to have share in the property and without ascertaining his share, determination or computation of the shares is not possible. Learned counsel for the respondent has controverted the contention contending that 7 once the finding is reached that marriage of defendant no. 3 with plaintiff no. 2 is prior in time the matrimonial relations between defendant no. 3 and Rukhminibai cannot be recognised in law. Even otherwise, finding is reached that the second marriage of defendant no. 3 was performed after coming into force Hindu marriage act, 1955. In this view of the matter, although the son born out of the illegitimate marriage will be entitled to have share, he can seek partition and separate share in respect of father’s self-acquired property, however, he cannot be held entitled to claim inheritance in ancestral co-parcenary property in view of section16(3) of the Act. 7- Respondents herein seek to place reliance on reported judgment in the matter of Jinia Keotin andothers vrs. Kumar Sitaram Manjhi andothers reported in (2003) 1 Supreme Court Cases 730. Argument was raised in the reported matter in respect of entitlement of the illegitimate son in the ancestral property. It is observed thus : . It was contended on behalf of the appellants that once the children born out of void and illegal marriage have been specifically safeguarded under Section 16, as amended by Central Act 68 of 1976, there is no justification to deny them equal treatment on a par with the children born of the wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. It was also contended that inasmuch as but for the Hindu Marriage Act, 1955 there was no prohibition for any 8 Hindu to have more than one wife and it is by virtue of the said Act such marriages became unlawful or void, once the legislature by amendment of section16 chose to legitimatise the children born of such void marriages, the prohibition must be held to have been relaxed and the stigma wiped out so as to render the progeny, legitimate for all purposes and, therefore, the provisions of Section 16(3) of the act also should be construed keeping in view the totality of circumstances and the object and purpose of the legislation in respect of the right to inherit property also like the children born out of lawful wedlock. . While considering the argument advanced before the Apex court, the Apex court has held thus : . Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate,notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. . Though Section 16 was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time, in view of an express mandate of the legislature itself under 9 sub-section (3), there is no room for according upon such children who but for Section 16 would have been branded s illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to ding not only violence to the provision specifically engrafted in sub-section(3) of Section16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against the will expressed in the enactment itself. 8- In this view of the matter, contention raised by respondent that in the absence of the second wife and son born to her, decree for partition could not have been passed, cannot be accepted. Even otherwise, the son born to second wife would not be entitled to claim share in the ancestral property. No error therefore can be attributed to the view adopted by the first appellate court. There is no force in the appeal. Appeal being devoid of any substance stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/sa453.89.odt