THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.No.3400 of 2003 JUDGMENT: (BPR,J) The appellants herein are the unsuccessful plaintiffs, who filed this appeal under Section 96 of the Code of Civil Procedure aggrieved against the dismissal of their suit where they sought for partition and claimed for respective shares in respect of the suit schedule property, as per the judgment and decree in O.S.No.5 of 1998, dated 31-7-2003, on the file of the Additional District Judge, Mahaboobnagar. Few facts, which are not in dispute, are that suit schedule properties are the Mathruka of the properties belonging to late Mir Ahmed Ashraf, who died on 16-1-1996, which are admittedly self acquired properties, whereas the defendants 10 to 32 are in occupation as tenants in certain portions of the properties. There is no dispute to the fact that the defendants 4 to 9 are the plaintiffs born out of the wedlock with defendant No.3. Further, the plaintiffs has been living in the premises bearing No.5-100/7 part of the schedule property belonging to the Mir Ahmed Ashraf. The 1st plaintiff laid the present suit inter alia claiming for partition and separate possession, principally, on the ground that she is the first wife of late Mir Ahmed Ashraf, where as the defendant No.3 is the second wife and he died on 16-1-1996. In the plaint famility is shown as below: Mir Ahmed Ashraf Sainab Begum (1st wife-P-1) Ahmadee Begum (2nd wife – D3) Syeda Safia Begum (D- 1) Syeda Saleha Begum (D- 2) Mir Ahmed Farooq –P2 Mir Ahmed Istheyak (P- 3) Sayeda Qudsia Begum Syeda Sajad Begum D-4 Syeda Sahera Begum D-5 Mir Ahmed Aslam D-6 Syeda Azheda Begum D-7 Syeda Dushra Begum D-8 Syueda Saadita Begum D-9 However, it was the further claim set up by the plaintiff herself that when she was a minor and even before attaining the age of puberty and in the absence of a proper and valid guardian, she was married to one Mahmood Ahmed, who was a insane person. However, the said marriage was not consummated, but later was repudiated, and subsequently, the plaintiff No.1 married late Mir Ahmed Ashraf and the other plaintiffs are the children born to her through late Mir Ahmed Ashraf. Hence, the plaintiffs are entitled to their respective shares as shown as per the personal law. Hence, the suit. The main contest on behalf of the defendants, who filed their respective written statement and one adopted by the other defendants, is denying the relationship of the plaintiff No.1 with late Mir Ahmed Ashraf and alleged marriage between them, and therefore, the question of either the plaintiff No.1 or any children born through the plaintiff No.1, the other plaintiffs, are not entitled to any share. Further, it is the specific defense on behalf of the defendants that there was no divorce validly done in between the plaintiff No.1 and Md.Ahmed in respect of the first marriage and therefore there could not have been any second marriage validly, and thus, subsisting and enforceable rights exists in favour of the plaintiffs, hence the suit is liable to be dismissed. The defense on behalf of the other defendants, who are the tenants namely, 11 to 26, 30, and 32 is only reiterating the fact of their possession and also eking out their livelihood without any other source. Hence sought for protection. During the pendency of the proceedings in the trial Court, it is seen that the suit was dismissed as against the defendants 11 to 16, 19, 20, 22 and 24 to 30. On the pleadings as set forth from both sides, the Court below framed the following issues: 1. Whether the plaintiff No.1 is not the first wife of late Mir Ahmed Ashraf? 2. Whether the marriage of plaintiff no.1 with one Mohammod Ahamed is subsisting till now? 3. Whether the plaintiffs No.2 to 4 and defendant No.1 and 2 are not the sons and daughters of late Mir Ahmed Ashraf, and they are not entitled for partition of suit schedule properties? 4. Whether the order passed by the Quazi on 6-7-1997 in binding on the plaintiffs and this Court is barred from deciding the matter? 5. Whether the plaintiffs and defendants are not in joint possession of the suit schedule properties and the Court fee paid is not sufficient? 6. Whether the plaintiffs are not entitled for the partition of suit schedule properties? 7. To what relief? Subsequently, the parties went into trial. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1 to A.25, whereas on behalf of the defendants DWs.1 to 4 were examined and marked Exs.B.1 to B.5. On a consideration of the entire evidence and material on record, the trial Court dismissed the suit mainly on the ground that the marriage between the plaintiff No.1 and Md.Ahmed does not come to an end in the manner known to law, and therefore, they are not entitled to the relief as sought for. Hence, this appeal. On a consideration of the submissions from both sides and perusal of the entire material on record, the only point which arises for consideration is as to whether on the facts and circumstances the plaintiffs are entitled to claim any right, title and interest and consequent share in respect of the properties of Mir Ahmed Ashraf. As already stated above, undisputedly the property belongs to late Mir Ahmed Shariff, who died on 16-1-1996 and the defendants 4 to 9 are the children born through defendant No.3, the other wife of Mir Ahmed Ashraf. It is also admitted that the plaintiffs have been residing in part of the suit schedule property. It is also undisputed that even from the side of the plaintiffs that there was a marriage between the plaintiff No.1 and Md.Ahmed. However, according to the plaintiff No.1 she was a minor at the time of marriage and she did not attain the puberty and even that the marriage was with out appointment of a properly and legally valid guardian. That apart, the said MD.AHMED is an insane person and the marriage was not consummated, hence, there was a repudiation of the marriage on the advise of the elders and with the consent and mediation as per the Muslim Law. Subsequently, the plaintiff No.1 was married to the Mir Ahmed Ashraf in the year 1953 and the other plaintiffs 2 to 4 are the children born through the plaintiff No.1. In support, the plaintiff No.1 examined herself as PW.1 and reiterates the entire version and all these checkered events. Further, her younger brother, who was examined as PW.4 also reiterates the same version of earlier marriage and non consummation and Md.Ahmed being an insane person. Thus, this factum of marriage with Md.Ahmed no doubt has remained un-assailed and the main plea of the defendants is that there being no valid defense, and therefore, there could not have been any valid marriage subsequently. Coming to the plaintiffs 2 to 4, especially, in Exs.A.1 to A.7, the School Records including the Nikah Nama Ex.A.10, shows that they are the children born to Mir Ahmed Ashraf. There is due entry about the parental side in his name. With these and other evidence as produced on behalf of the plaintiffs and as well on behalf of the defendants, there is no dispute to the fact that they are the children of PW.1, and according to PW.1 they are children born through Mir Ahmed Ashraf. It is not the case on behalf of the defendants that the plaintiffs 2 to 4 are the children born to PW.1 through any other person nor it is their case that PW.1 has married again with any third person so as to assign the parentage to a third person. It is also not their case specifically either way that these children are born to PW.1 through Md.Ahmed. Therefore, it can safely be taken and as rightly found by the Court below that the plaintiffs 2 to 4 are the children of Plaintiff No.1/PW.1. However, coming to the right of the plaintiff No.1, the trial Court sought to proceed mainly on the ground that there is no material or any evidence to support that there was a divorce valid or otherwise. Therefore, even as per the personal law, there being no proper repudiation of the marriage of PW.1 with Md.Ahmed, neither PW.1 nor the children born through Mir Ahmed Ashraf are prohibited from inheriting the properties. It is this aspect, which has negatived the claim of the plaintiffs in the court below. Therefore, the ultimate the pointer is only is as to the fate of the children and PW.1 as to their inheritance and entitlement to the properties of Mir Ahmed Ashraf. The question of entitlement of any right and consequent share by any children born through a legal marriage or otherwise found illegitimate, is no longer res-integra. This Court has already taken a view that such children cannot in any way be called as bastards and cannot claim any right, title or interest of whatsoever nature. It was held specifically that they would be treated as legitimate children and would be entitled to the share on par with the other children. It is only the wife, whose marriage was found to be illegal was held to be not entitled. Even of late, the apex Court has reiterated the same view. In view of the same, it cannot be said that the children of Mir Ahmed Ashraf namely, the plaintiffs 2 to 4 are not entitled to any share or claim any inheritance in the property of her mother share. However, it can safely held that there being no valid divorce as such between PW.1 and Md.Ahmed, either proved or otherwise established by the appellants herein, she would not be entitled to claim any right. Accordingly, we hold that plaintiff No.1 would not be entitled to claim any right, title or interest much less a share, whereas the plaintiffs 2 to 4 would be entitled to claim their due share in the suit schedule property. Accordingly, the appeal is partly allowed holding that the plaintiffs 2 to 4 are entitled to their respective shares as per the personal law in respect of the suit schedule property along with the defendants. No costs. ___________________ (B.PRAKASH RAO,J) ______________________ (G.BHAVANI PRASAD,J) dated:6-04-2011 grk