Mr. Justice Asok Kumar Ganguly, J. - (1.) LEAVE granted.
(2.) THE first defendant had two wives- the third plaintiff (the first wife) and the fourth defendant (the second wife). THE first defendant had two children from the first wife, the third plaintiff, namely, the first and second plaintiffs; and another two children from his second wife, the fourth defendant namely, the second and third defendant. The plaintiffs (first wife and her two children) had filed a suit for partition and separate possession against the defendants for their 1/ 4th share each with respect to ancestral property which had been given to the first defendant by way of grant. The plaintiffs contended that the first defendant had married the fourth defendant while his first marriage was subsisting and, therefore, the children born in the said second marriage would not be entitled to any share in the ancestral property of the first defendant as they were not coparceners. However, the defendants contended that the properties were not ancestral properties at all but were self-acquired properties, except for one property which was ancestral. Further, the first defendant also contended that it was the fourth defendant who was his legally wedded wife, and not the third plaintiff and that the plaintiffs had no right to claim partition. Further, the first defendant also alleged that an oral partition had already taken place earlier.
(3.) THE Trial Court, by its judgment and order dated 28.7.2005, held that the first defendant had not been able to prove oral partition nor that he had divorced the third plaintiff. THE second marriage of the first defendant with the fourth defendant was found to be void, as it had been conducted while his first marriage was still legally subsisting. Thus, the Trial Court held that the third plaintiff was the legally wedded wife of the first defendant and thus was entitled to claim partition. Further, the properties were not self-acquired but ancestral properties and, therefore, the plaintiffs were entitled to claim partition of the suit properties. THE plaintiffs and the first defendant were held entitled to 1/ 4th share each in all the suit properties. Aggrieved, the defendants filed an appeal against the judgment of the Trial Court. The First Appellate Court, vide order dated 23.11.2005, re-appreciated the entire evidence on record and affirmed the findings of the Trial Court that the suit properties were ancestral properties and that the third plaintiff was the legally wedded wife of the first defendant, whose marriage with the fourth defendant was void and thus children from such marriage were illegitimate. However, the Appellate Court reversed the findings of the Trial Court that illegitimate children had no right to a share in the coparcenary property by relying on a judgment of the Division Bench of the KARNATAKA HIGH COURT IN SMT. SAROJAMMA and ORS. V. SMT. NEELAZMMA and ORS., [ILR 2005 KAR 3293).;