(1.)The plaintiff (1 st respondent herein) filed the suit claiming for 1/6th share in schedules A to D properties and 1/3rd in schedule E properties. From the indisputable facts on record, the ancestral properties have to be divided firstly between Sahadeo Manjhi, his brother Mahadeo Manjhi (defendants nos. 1 and 2) and their mother Dukhani Keotin (defendant no. 7) each one getting 1/3rd share. Out of the 1/3rd share of Sahadeo Manjhi, the properties again will be equally divided in four parts each one of the sharers getting 1/4th share. Defendants 8 to 11 are said to be not entitled to any share on account of the fact that the marriage of the 1st defendant with the 8th defendant was void for the reason that his first wife, Smt. Kamli Devi, was alive and the first marriage still subsisting. The second marriage - remarriage, of 1st defendant with the 8th defendant after the coming into force of the Hindu Marriage Act, 1955 cannot be valid. The learned 2nd additional subordinate judge, Dumka, passed a preliminary decree on 27.9.1983 in title suit no. 40 of 1975 (3 of 1983) for the 1/4th share of the plaintiff in the suit properties out of the l/3rd, which has got to be allotted to the share of the 1st defendant. On appeal in title appeal no. 43 of 1983 before the learned IInd additional district judge,. Dumka, the learned first appellate judge by his judgment dated 13.7.1990 also held that the 1st defendant could have remarried the ' 8th defendant only after 1957 when the judgment of acquittal came to be passed in the criminal case against him for an offence under section 498, IPC.
(2.)In the light of the above, the plaintiff was held entitled to 1/9th share in the suit A to D schedules properties and the children of Sahadeo through Smt. Jinia Keotin were held not entitled to any share in the coparcenary property in terms of section 16 (3) of the Hindu Marriage Act, 1955, though they may claim to be entitled to their due share in the property of their parents. During the pendency of the said appeal, the Sahadeo Manjhi died and consequently his 1/9th share was held to devolve upon all his heirs - the plaintiff, daughter, defendant no. 6 - the mother, defendant no. 7, the wife, defendant no. 5 and his son from Smt. Jinia Keotin, viz. , defendant nos. 9,10 and 12 and appellant no. 7. Since defendant 10. 11 died even during the lifetime of Sahadeo Manjhi, he was not entitled to any share. Each of the eight heirs of Sahadeo Manjhi was held entitled to inherit an equal share of 1/72 out of the said 1/9th share. The plaintiff was, therefore, held entitled to 2/72 equal to 1/8th share in the coparcenary property comprised in A to D schedules. The appeal was allowed on the above terms and to the extent indicated. Not satisfied, the matter was pursued by the 2nd wife and her children on second appeal in S. A. No. 315 of 1991 before the High Court of Patna. The said appeal was dismissed on 20. 12.1991. Hence, the above appeal by them before this Court.
(3.)Shri Lakshmi Raman Singh, the learned counsel for the appellants, while reiterating the stand taken before the courts below, vehemently contended that once the children born out of void and illegal marriage have been specifically safeguarded under section 16, as amended by the Central Act 68 of 1976, there is no justification to deny them equal treatment on par with the children born of wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. It was also contended by the learned counsel that inasmuch as but for the Hindu Marriage Act, 1955 there was no prohibition for a 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 section 16 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 right to inherit property also like the children born out of lawful wedlock. Per contra, Shri H. L Agrawal, learned senior counsel, with equal force contended that acceptance of the plea on behalf of the appellants would amount to rewriting the enactment which has expressed the legislative mandate in clear terms in section 16 (3) and, therefore, no exception could be taken to the concurrent view taken by the courts, below, in this regard.