Second Appeal No.652 of 2004

13th February, 2008

Petitioner Counsel: S/Shri. R. L. KHAPRE , P. B. PATIL
Respondent Counsel: Shri. N. S. BHATTAD

Cases Cited:
Gur Narain Das Vs. Gur Tahal Das, AIR 1952 SC 225 [Para 9,15,19,20]
Neelamma Vs. Sarojamma, (2006)9 SCC 612 [Para 11,23]
Jinia Keotin Vs. Kumar Sitaram Manjhi, (2003)I SCC 730 [Para 11,16,23]
Shataram Tukaram Patil Vs. Smt. Dagubai Tukaram Patil, AIR 1987 BOMBAY 182 [Para 11,16,21]
Rasala Surya Prakasarao Vs. Rasala Venkateshwararao, , AIR 1992 ANDHRA PRADESH 234 [Para 11,21]
Daddo Atmaram Patil Vs. Raghunath Atmaram Patil, AIR 1979 Bom. 176 [Para 15,16,21]
Chodon Puthiyoth Shyamalavalli Amma Vs. V. Kavalam Jisha, AIR 2007 Kerala 246 [Para 15]
M. Govindaraju Vs. K. Munisami Gounder, AIR 1997 SC 10 [Para 16]
Mrs. Valsamma Paul Vs. Cochin University, AIR 1996 SC 1011 [Para 16]
Smt. Baby Vs. Jayant Mahadeo Jagtap, AIR 1981 BOMBAY 283 [Para 16]
Vellaiyappa Vs. Natarajan, AIR 1931 P.C. 294 [Para 19]
G. Nirmalamma Vs. G. Seethapathi, AIR 2001 A.P. 104 [Para 22,23]

JUDGMENT

JUDGMENT :- This appeal and another appeal No.558 of 2004 between same parties were to be heard and decided together. Accordingly, today I have completed hearing in both the appeals and by separate order, because of limited nature of controversy involved therein, second appeal No.558 of 2004 has been disposed of. Though in that appeal, it has been held that Section 30 of the Hindu Succession Act protected deceased Sakharam who has executed Will of his joint undivided family property, still the Will has not been accepted to be legal and valid, and therefore, judgment and decree of lower appellate Court has been maintained.

2. This second appeal is filed by original plaintiffs in regular civil suit No.61 of 1996. Suit filed by them was for declaration, partition and separate possession. Trial Court decreed the suit partly and the original defendants then filed regular civil appeal No.101 of 2001 on 20/8/2004. First Ad hoc Additional District Judge, Bhandara has partly allowed that appeal. Thereafter this second appeal has been admitted on 14/3/2006 by formulating following question as substantial question of law:

(1) Whether unmarried illegitimate daughters on the date of coming into force of Maharashtra Amendment Act, 1994 [which has came into force from 22/6/1994], have an equal share as that of a male coparcener by virtue of Section 29-A [Maharashtra Amendment Act] read with Section 16 of Hindu Marriage Act ?

3. For the purposes of understanding facts, family tree which is not in dispute needs to be given here :

BULUCHA NATTHA
				|
				KANHU
				|
	|						|
Tukaram							Sakharam (died on 25/1/95)
				|			|
				Rukhma @ Raiwanti (defdt.2) wife			Gayabai (Pltff.) - wife
				|
				Gopal (son) defdt.1			Mukhklabai defdt.3
Ruplata daughter Pltff. No.4		Madapika daughter Pltff. No.5		Vijutai daughter Pltff. No. 6	Bharti daughter Pltff. No. 2	Sushma daughter Pltff. No. 3

4. Gayabai-plaintiff No.1 claimed to be second wife of Sakharam and plaintiff Nos.2 to 6 claimed to be children born to Gayabai from Sakharam. Plaintiff Nos.2 and 3 were at the relevant time unmarried daughters. Rukhmabai-defendant No.2 in the suit was the first wife of deceased Sakharam and defendant No.1 Gopal is son born to her while defendant No.3 Mukhklabai is defendant No.3 - daughter born to her from Sakharam. The property came to Sakharam from his father Kanhu and after partition between brother Tukaram and Sakharam. Sakharam died on 25/01/1995. On 14/3/1996 Gayabai and her children filed regular civil suit No.61 of 1996 and claimed their share in agricultural lands and also house property. There is no dispute in this second appeal about the said property or its description. Gayabai and plaintiffs had claimed half share in the suit properties. Gayabai contended that as defendant No.2 Rukhmabai could not conceive from Sakharam, Sakharam married with her in the year 1961 and then the daughters as mentioned above were born to her. She stated that during life time of Sakharam, they were residing with him and after his death, defendants obstructed cultivation of plaintiffs. Plaintiffs also received notice from Talathi through which they learnt about Will deed dated 23/2/1993 executed in favour of defendant No.1-Gopal. She challenged said Will as fabricated document and claimed partition. The trial Court framed five issues and held that Gayabai and other plaintiffs have share in suit property and were entitled to partition and separate possession of their share. It also directed preparation of preliminary decree and sent precept to the Collector for partition in agricultural land. It directed appointment of Commissioner for partition of house property. The trial Court then gave 9/32 share to plaintiff Nos.2, 3 & defendant No.1 each. It gave 1/32 share in suit property to defendant Nos.2, 3 and plaintiff Nos.4, 5 and 6.

5. The defendants then filed regular civil appeal No.101 of 2001 and appellate Court found that marriage of Gayabai with Sakharam in the year 1961 was proved and it further found that plaintiff Nos.2 to 6 were born to Gayabai from Sakharam and they were entitled to partition and separate possession of their respective shares. However, it dismissed claim of plaintiff No.1 Gayabai. It declared that plaintiff Nos.2 to 6 i.e. children of Gayabai from Sakharam were entitled to 1/24 share each and defendant No.3 was also entitled to get 1/24 share. While, defendant No.1 Gopal and his mother Rukhamabai-defendant No.2 were entitled to have 9/24 share each. It accordingly directed precept to be sent to the Collector and appointed Commissioner for partition of house property. It also directed enquiry under Order XX, Rule 12 of the Code of Civil Procedure for mesne profit. Thereafter, the second appeal has been filed which has been admitted on question as mentioned above.

6. The substantial question of law as formulated above clearly shows that the entitlement of unmarried illegitimate daughters to equal share as that of male coparcener needs to be looked into in the light of provisions of Section 16 of Hindu Marriage Act and Section 29-A added by Maharashtra Amendment Act, 1994 to Hindu Succession Act which has come into force from 22/6/1994. Present provisions of Section 16 of Hindu Marriage Act which came into force from 25/7/1996.

7. I have heard Advocate R. L. Khapre with Shri. P. B. Patil for appellants-plaintiffs and Advocate Shri N. S. Bhattad for both the respondents.

8. After inviting attention to the fact as mentioned above, Advocate Khapre has argued that marriage of Gayabai with defendant Sakharam in 1961 as per Budha religion is not in dispute. He also invites attention to evidence of Gayabai in this respect and points out that there was no cross-examination about the religion or caste of original defendants. He also invites attention to certain documents like Exh.65 and Exh.57. He further states that Headmaster who has issued certificate at Exh. 57 was examined and there is no cross-examination by defendants to show that caste as recorded was incorrect. He, therefore, contends that parties are Shudras and hence, their case is to be considered in the light of relevant provisions as applicable to them.

9. In this background he invited attention to a judgment of the Hon'ble Apex Court reported at AIR 1952 SC 225 (Gur Narain Das & another Vs. Gur Tahal Das & others) to show that before 1956 i.e. before coming into force of Hindu Succession Act, a Shudra illegitimate son was entitled to half share than a normal coparcener and he could also enforce partition if his father was separate. He contends that this position is protected by Section 6 of Hindu Succession Act because succession as provided therein is applicable only after the separate share of a coparcener in joint family is worked out. He, therefore, argues that on death of Sakharam in 1995, there has to be a notional partition and separate share of Sakharam could thereafter devolve as per provisions of Hindu Succession Act. He has also cited certain rulings to support that upon death of such person holding share in joint family property, there has to be a notional partition. However, as there is no debate between the parties in this respect, I do not find it necessary to make reference to these judgments.

10. With this he invites attention to the provisions of Section 16 of Hindu Marriage Act to state that distinction between legitimate issue and illegitimate issue has been done away after 25/7/1976. He, therefore, states that illegitimate Shudra son needs to be treated as legitimate son and similarly illegitimate Shudra daughter needs to be treated as legitimate daughter. He thereafter invites attention to provisions of Section 29-A of Hindu Succession Act to state that as plaintiff Nos.2 and 3 were unmarried on the date of which said modification came into force, they attained status of coparceners. He argues that because of Section 16 of Hindu Marriage Act, they lose their character as illegitimate daughters and became legitimate daughters and hence as Section 29-A of Hindu Succession Act treats daughters as coparceners and it gives them share equal to a son, Plaintiff Nos.2 and 3 also became coparceners and entitled to a share which in law is given to a son. He contends that the Courts below have not considered total effect of Section 16 of Hindu Marriage Act as also the effect of Section 29-A of Hindu Succession Act.

11. He pointed out a judgment of Hon'ble the Apex Court reported at (2006)9 SCC 612 (Neelamma & others Vs. Sarojamma & others); (2003)I SCC 730 (Jinia Keotin & others Vs. Kumar Sitaram Manjhi & others) and AIR 1987 BOMBAY 182 (Shataram Tukaram Patil & another Vs. Smt. Dagubai Tukaram Patil & others) to indicate how the provisions of Section 16 of Hindu Marriage Act are considered by the Hon'ble Apex Court or by the Division Bench of this Court. He, however, states that judgments do not disclose whether parties considered in those judgments were belonging to Shudra class or upper class. He, therefore, states that those judgments only show the scope of provisions of Section 16 in the absence of a right as available to Shudra illegitimate son under uncodified Hindu law. He also invites attention to judgment of Division Bench of Andhra Pradesh High Court reported at AIR 1992 ANDHRA PRADESH 234 (Rasala Surya Prakasarao & others Vs. Rasala Venkateshwararao & others) wherein the Hon'ble High Court has after considering provisions of Section 16 held that illegitimate sons of Hindu are entitled to equal share with natural son, and therefore, can be treated as coparceners. He, therefore, states that because of operation of law, plaintiff Nos.2 and 3 being legitimate daughters, are entitled to a equal share i.e. share which is given to a son or which is given to a coparcener and in the alternative they are entitled to claim half share as given to Shudra illegitimate son as per old law.

12. He further points out that though claim of partition and separate possession made by plaintiff No.1 Gayabai stands dismissed, she is entitled to claim maintenance and in view of various provisions citied by him above and the law on point, such a relief needs to be given to her. He points out that in view of the provisions of Order VII, Rule 7, this Court has got powers to mould relief in the second appeal.

13. Advocate Bhattad for respondents-defendants states that suit for partition and separate possession was dismissed and Gayabai did not raise any demand for maintenance. He contends that question of maintenance requires scrutiny through totally different angle and there was no such claim before the lower Courts, there is no evidence on record to show entitlement of plaintiff No.1 for this purpose. He further states that second appeal needs to be decided only on the substantial question of law as formulated in view of Section 100(3) of the Code of Civil Procedure, and therefore, this issue is not open for consideration.

14. He further points out that entire arguments proceeded on assumption that there was otherwise a valid marriage between Gayabai and deceased Sakharam. According to him Section 16 of Hindu Marriage Act is attracted only when the marriage is null and void under Section 11 thereof. He points out that, therefore, there has to be first a marriage and then it has to be found void one. According to him in the present case if at all a finding as to a marriage is to be given, there has to be evidence on record about the Boudha ceremonies which must essentially be performed during marriage. He points out that on record, there is no such evidence and hence, it can not be held that marriage between Gayabai and Sakharam was performed as per Boudha custom. He, therefore, states that the marriage cannot attract either provisions of Section 11 or Section 16, and therefore, the entire case of present appellants needs to be dismissed. He points out that merely by showing that parties belonged to Boudha religion, such a presumption cannot be drawn.

15. He invites attention to Section 4 of Hindu Succession Act to point out that after coming into force of codified law in 1956, the old customs prevailing amongst Shudras have ceased to be in existence. He, therefore, argues that judgment of the Hon'ble Apex Court in the case of Gur Narain Das & another Vs. Gur Tahal Das & others (supra) cannot be held to be a good law after coming into force of Hindu Succession Act. In support of his contentions, he relies upon judgment of learned Single Judge of this Court reported at AIR 1979 Bom. 176 (Daddo Atmaram Patil & others Vs. Raghunath Atmaram Patil & others). He also states that Section 16(3) of Hindu Marriage Act gives only a limited legitimacy to illegitimate child and the contention that illegitimate daughter can become coparcener because of Section 16(3) is not sustainable. He places reliance upon judgment of the Hon'ble Apex Court on which Advocate Shri. Khapre has relied upon to point out the scope of said provisions. According to him Section 16 of Hindu Marriage Act and Section 29-A of Hindu Succession Act operate in different fields and none of the provisions confer status of coparcener upon illegitimate daughter. He has pointed out the judgment of learned Single Judge of Kerala High Court reported at AIR 2007 Kerala 246 (Chodon Puthiyoth Shyamalavalli Amma & others Vs. V. Kavalam Jisha & another) where the Hon'ble Kerala High Court has held that when there is no proof of solemnization of marriage in between parties, such marriage is not void under Section 11 of Hindu Marriage Act and consequently Section 16 thereof would not apply.

16. In reply, Advocate Shri. Khapre has pointed out that the Division Bench of this Court in judgment reported in the case of Shataram Tukaram Patil & another Vs. Smt. Dagubai Tukaram Patil & others (supra) has specifically overruled the judgment of learned Single Judge reported in the case of Daddo Atmaram Patil & others Vs. Raghunath Atmaram Patil & others (supra). He further states that the judgment reported in Jinia Keotin & others Vs. Kumar Sitaram Manjhi & others (supra) clearly shows that existing rights of illegitimate Shudra sons were protected, and therefore, in view of Section 29-A amendment of Hindu Succession Act, the Shudra illegitimate daughter also becomes coparceners. He points out judgment of Hon'ble the Apex Court reported at AIR 1997 SC 10 (M. Govindaraju Vs. K. Munisami Gounder & others) to show that in spite of codified law, Shudra customs are held to be protected. He also relies upon judgment of the Hon'ble Apex Court reported at AIR 1996 SC 1011 (Mrs. Valsamma Paul Vs. Cochin University & others) to state that even if parties are of different caste or religion, marriage between them is not invalid. He, therefore, contends that Section 11 as also Section 16 of Hindu Marriage Act are squarely applicable in the facts of the present case. He further states that necessary formalities or customs for constituting a marriage to be followed for Boudha marriage are already undergone in the present case and he invites attention to a judgment of this Court reported at AIR 1981 BOMBAY 283 (Smt. Baby Vs. Jayant Mahadeo Jagtap & others) for that purpose.

17. In view of these arguments, the first question which needs to be considered is; whether it has been proved on record that there was a marriage between Gayabai and Sakharam? Insofar as status of parties before me as belonging to Boudha religion, it is not in dispute. The evidence of Gayabai shows that she deposed that her society was Boudha society and she has not been subjected to any cross-examination in this respect. Similarly, the revenue records vide Exh. 65 placed on record to show ancestral nature of property again mention the caste of parties and certificate Exh.57 issued by Headmaster in relation to plaintiff Nos.2 to 6 again show their caste. The Headmaster was actually tendered for cross-examination by the present appellants but there is no cross-examination in this respect. Hence, the fact that parties are Shudras is not in dispute.

18. The suit itself was filed by Gayabai claiming to be wife of Sakharam. The issues framed by the trial Court nowhere disclose that the present respondents (original defendants) at any time took a plea that marriage of Gayabai with Sakharam was not solemnized as per Boudha religion. In fact, the trial Court has not framed any issue in this respect. The appellate Court has framed point No.1 which reads; "Whether plaintiff No.1 proves that she had married deceased Sakharam in the year 1961?" and it has been answered in the affirmative by the appellate Court. It is settled law that case of parties is restricted by pleadings which they placed for consideration before the Court. It was never the stand of present respondents that marriage between Gayabai and Sakharam was not performed in accordance with Boudha custom and rites. In this view of the matter, I find that invalidity of marriage sought to be raised for the first time in this appeal by contending that definite or essential customs to be performed to constitute a valid marriage are not on record, is clearly an attempt by way of afterthought. Even otherwise, in view of material on record, I find that such effort has to fail. The evidence discloses that after her marriage, plaintiff No.1 Gayabai has resided with Sakharam, her issues have been recognized in the society as sons of Sakharam and this position has continued from 1961 till death of Sakharam in 1995. Perusal of written statement filed by respondents reveals that respondents have denied even any relationship of Sakharam with Gayabai and they have contended that plaintiffs have fabricated a false case. Plaintiff No.1 herself has deposed about the marriage ceremonies and what essential customs were not followed in that marriage has not been brought on record through her cross-examination. Her witness Hari has also pointed out that marriage was performed in accordance with Boudha religion. There is no evidence on marriage by present respondents. Hence, the contention of Advocate Bhattad that there has to be first a marriage solemnized to attract Section 11 or Sec.16 cannot be accepted at least in facts of the present case.

19. Perusal of judgment of the Hon'ble Apex Court in Gur Narayan Das Vs. Gur Tahal Das & others (supra) particularly paragraph No.8 of this judgment shows that the Hon'ble Apex Court has held that; the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son with a right of survivorship and is entitled to enforce partition against the legitimate son. In partition between legitimate and illegitimate son, the illegitimate son takes only one-half share of what he would have taken if he was a legitimate son. The Hon'ble Apex Court has relied upon the text appearing in Mitakshara, Chapter I, Section 12 and its consideration by the Privy Council in Vellaiyappa Vs. Natarajan - AIR 1931 P.C. 294. This judgment in paragraph No.9 also shows that a illegitimate son is entitled to claim a partition against legitimate son after his father's life time. It has been observed that such son can enforce partition where father was separate from his collaterals and has left separate property and also a legitimate son. In the facts of the present case, Sakharam was separate from his collaterals and had left separate property and also a legitimate son i.e. Gopal. The question, however, is; he has no illegitimate son but he left behind him five illegitimate daughters. Two of those daughters were unmarried when Section 29-A of Hindu Succession Act came into force.

20. Perusal of paragraph 9 of this judgment (Daddu Atmaram Patil & others Vs. Raghunath Atmaram Patil & others) on which Advocate Bhattad has placed heavy reliance clearly shows that this Court there has considered the issue of succession by a illegitimate Shudra son to the estate of his father. This Court has not considered there the right of illegitimate son to succeed as coparcener to the separate estate of father along with legitimate sons. I, therefore, find it difficult to hold on the basis of this judgment that law as applicable at the stage of notional partition in 1995 when Sakharam expired and declaration by the Hon'ble Apex Court in Gur Narayan Das Vs. Gur Tahal Das & others (supra) has undergone any change. However, I find that this controversy is not relevant for deciding this second appeal.

21. In Shataram Tukaram Patil & another Vs. Smt. Dagubai Tukaram Patil & others (supra) on which Advocate Khapre has placed reliance to point out that AIR 1979 Bom. 176 (Daddo Atmaram Vs. Raghunath Atmaram) has been overruled because of failure to consider Section 16 of Hindu Marriage Act and Section 8 of Hindu Succession Act. In paragraph 14 of this judgment the Hon'ble Division Bench has considered this judgment of the learned Single Judge and it has found that the provisions of Section 16 of Hindu Marriage Act were not brought to the attention of learned Judge, and therefore, the learned Single Judge proceeded to decide the question whether a illegitimate son can succeed to the property of his father. In paragraph 27 the Hon'ble Division Bench has summarized proposition of law emerging from discussion undertaken by it and has found that a child of a marriage which is void under the provisions of Hindu Marriage Act is legitimate child because of Section 16(1) of Hindu Marriage Act and such a child does not acquire right to property which a legitimate child would acquire. But the legitimacy confers upon him right to property of his parents because of Section 16(3). It has been further observed in proposition Nos.3 and 4 that property to which such a child can lay claim must be the separate property of the parents and not the coparcenary property. In proposition (4) it has also been observed that no child whether legitimate or otherwise acquires right by birth in separate property of its parents. From this language in proposition Nos.3 and 4 it appears that reference to separate property is in fact, reference to self acquired property. However, it is further clear that the provisions of Section 29-A of Hindu Succession Act or its effect was not required to be considered by this Division Bench.

22. The judgment of Division Bench of Hon'ble Andhra Pradesh High Court in Rasala Surya Prakashrao Vs. Rasla Venkateswararao & others (supra) considers provisions of Section 16(1) of Hindu Marriage Act and it has been held that by virtue of Section 16(1) of Hindu Marriage Act as amended in 1976, illegitimate son can be equated with his natural son and treated as coparcener for properties held by the father whether the property be originally joint family property or not. Above mentioned Division Bench's judgment of this Court in Shantaram Vs. Dagubai has been relied upon in support though such liberal view is not supported by it. AIR 2001 A.P. 104 (G. Nirmalamma & others Vs. G. Seethapathi & others) is the other judgment of learned Single Judge of the same High Court in which the Division Bench of this Court and the above mentioned Division Bench judgment of Andhra Pradesh High Court are considered. The view taken is that in view of the provisions of Section 16(1), the illegitimate son can be equated with natural son and treated as coparcener for the properties held by the father.

23. Perusal of judgment of the Hon'ble Apex Court reported at (2006)9 SCC 612 (Neelamma & others Vs. Sarojamma & others) shows that the Hon'ble Apex Court has in view of its earlier judgment finds that the above view taken by the Andhra Pradesh High Court was not correct. It held that said view in case of G. Nirmalamma & others Vs. G. Seethapathi & others (supra) was contrary to its earlier judgment reported at (2003)I SCC 730 (Jinia Keotin & others Vs. Kumar Sitaram Manjhi & others). The Hon'ble Apex Court has reproduced paragraph 5 of its earlier judgment in this later judgment and said paragraph reads as under :

"5. So far as Section 16 of the Act is concerned, though it was enacted to legitimate children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by en grafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, 'any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any, such rights by reason of his not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as 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 doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference in this appeal."

In other words, the Hon'ble Apex Court has found that in view of express mandate by Legislature in Section 16(3) there was no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights that 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. It is no doubt true that both these judgments of the Hon'ble Apex Court had not considered the case of Shudra community son or daughter. But community or caste as such is totally irrelevant for the purpose of interpretation of Section 16(3) in present case of illegitimate daughter's claim as coparcener. The Hon'ble Apex Court has only emphasised limited sweep of Section 16(3) of Hindu Marriage Act, 1955.

24. Section 29-A of Hindu Succession Act as added by Maharashtra Amendment begins with non obstante clause, and therefore, it prevails over Section 6 thereof. Section 6 as already discussed above, first contemplates a notional partition amongst coparceners after death of any person holding share in joint family property. Therefore, succession to such share is thereafter regulated by proviso to this Section 6. This non obstante clause was essential because uncodified Hindu Law which governs notional partition at the death, only coparceners as recognized under uncodified law are entitled to share. By statute, for the first time, a daughter of coparcener has been constituted a coparcener by birth in joint Hindu family covered by Mitakshar. Thus, the concept of coparcenery has been changed for that purpose, and therefore, it was necessary for Legislature to employ the non-obstante clause. When this clause is read as it is, i.e. without looking into any other enactment, there is nothing in it to enable one to record a finding that a illegitimate daughter is also made coparcener. It is settled position that the illegitimate daughter of a male Hindu dying intestate is not entitled to any share or inheritance and in view of provisions of Section 3(j) which defines the term "related", it is apparent that not only illegitimate daughter but also illegitimate son is not included in Class-I of Schedule thereto. Section 29-A has introduced the concept of daughter as a coparcener for the first time. There is no amendment in Hindu Succession Act to show that illegitimate son has been made a coparcener. If the arguments of appellants are to be accepted, then the illegitimate child (either son or daughter) becomes coparcener because of provisions of Section 16 of the Hindu Marriage Act, 1955.

Section 16 of Hindu Marriage Act reads as under :

"16. Legitimacy of children of void and voidable marriages.

(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (69 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

Interpretation of Section 16(3) by Hon'ble Apex Court is already mentioned above. Its limited purpose becomes clear when views of Andhra Pradesh High Court favouring wide interpretation are found contrary to its scheme by Hon'ble Apex Court.

25. Thus, Section 16(3) confers upon child of a void marriage rights only in or to the property of his parents. The concluding part of this sub-section also makes it clear that no new rights are being made available, and therefore, if something is denied to such child because it is not legitimate child of his parents, such rights are not being conferred by Section 16 upon him or her. In view of this limited sweep of sub-section (3) of Section 16, though legitimacy has been given to illegitimate daughter, the legitimacy is only for the purposes of succeeding to the properties of parents i.e. in present case Sakharam. Here, it is to be noted that even in uncodified Hindu Law, the illegitimate daughter of Shudra was not given any such right. The right, therefore, has been made available only in separate property of parents by virtue of Section 16 sub-section (3). This provision, therefore, cannot be read to widen the scope of Section 29-A to construe that illegitimate daughter thereby becomes a co-parcener, and therefore, is entitled to share in partition at the stage of notional partition after the death of a person holding interest in joint family property. It is to be noted that such a right is not available even to any illegitimate son. Section 3(1)(j) of Hindu Succession Act cannot be amended through such interpretation.

26. In view of this position, I find it difficult to accept the arguments of learned Counsel for the appellants that appellant Nos.2 and 3 (original plaintiff Nos.2 and 3), who at the relevant time were unmarried, have become coparceners. Such a interpretation will militate with Legislative intent in putting sub-section (3) of Section 16 in Hindu Marriage Act, 1955, Section 29-A has only taken into its consideration the legitimate daughters and not illegitimate daughters.

27. In view of this discussion, question, as framed above, needs to be answered in negative, i.e. it has to be held that any unmarried illegitimate daughter on the date of coming into force of Section 29-A of Hindu Succession Act does not have equal share as that of male coparceners by virtue of Section 29-A read with Section 16 of Hindu Marriage Act.

28. This brings me to consider the latter argument by appellants based upon provisions of Order VII, Rule 7, C.P.C. I find that necessary material to hold appellant No.1 Gayabai (plaintiff No.1) entitled to claim maintenance is absent in the present matter because there was no such claim either before trial Court or appellate Court. The entitlement to claim such maintenance raises basically a disputed question of fact and in absence of appropriate evidence or appropriate opportunity to both the sides, such issue cannot be gone into for the first time in second appeal. Not only this, the provisions of Section 100, C.P.C. are very clear and the second appeal is required to be decided only on question of law as formulated. As there was no such plea or case, no question of law in this respect has been formulated at all. Therefore, the said prayer for grant of maintenance to plaintiff No.1 cannot be looked into in this second appeal. The issue, however, can be gone into in appropriate proceedings as and when the same are instituted in accordance with law.

29. With the result, I find no substance in the second appeal. The second appeal is accordingly dismissed. However, there shall be no order as to cost.

Second appeal dismissed.