- (1.) Leave granted.
(2.) This appeal is directed against the order dated 3rd October 2005 of the High Court of Judicature at Bombay in Writ Petition No 2390 of 2005 whereby the order passed by the Civil Judge, Senior Division, Kolhapur in Special Civil Suit No. 503 of 1996 was set aside.
(3.) The plaintiff, who is the respondent no. 1 in the present appeal, (hereinafter called the "plaintiff") has instituted a suit for partition and separate possession of the suit properties as fully described in Para 1 of the plaint on the allegations stated in brief as follows :- The suit properties originally belonged to one Veersangayya (since deceased). On his death, Appasao (since deceased) and Balasao (since deceased) came to inherit the suit properties. The appellants who are defendants 8 to 14 in the suit are the heirs and legal representatives of Balasao (since deceased). The Plaintiff inherited one half share of the suit properties jointly with defendant nos. 1 to 7, on the death of Appasao. Since the appellants had refused to partition the suit properties and deliver separate possession, the plaintiff filed the suit for partition and possession. The defendant nos. 1 to 7 who are respondent nos. 2 to 8 in this appeal entered appearance in the suit and filed their written statement supporting the case of the plaintiff. After entering appearance in the suit, the appellants on 28th February, 2003 filed their written statement in which they admitted that the plaintiff with defendant No.1 to 7 were entitled to one half share in the suit properties. Initially, an application for amendment of the written statement was filed by the appellants on 18th June, 2003, which was contested by the plaintiff. The said application was allowed by the Civil Judge, Senior Division, Kolhapur, but subsequently on a writ application filed before the High Court at the instance of the plaintiff, the order allowing amendment was set aside and the application for amendment was rejected. However, liberty was given to the appellants to file a fresh application for amendment of the written statement. Pursuant to such liberty, a fresh application for amendment of the written statement was filed on 12th March, 2004 by the appellants, which was also contested by the plaintiff. In the application for amendment of the written statement the appellants had sought to add that the plaintiff and defendant Nos.2 to 7 could not acquire right, title and interest in the joint family properties, as they were the illegitimate children of the deceased Appasao. In the application for amendment, the appellants sought to allege that Appasao (since deceased) was initially married to defendant no. 1. As she had no issue, the said Appasao took defendant No.2 as his second wife after coming into force of the Hindu Marriage Act, 1955. The appellants alleged that since the marriage between Appasao and defendant No.2 was a nullity, neither defendant No.2 nor the plaintiff and defendant Nos. 3 to 7 were entitled to claim any share in the suit properties.;