Judgment :- SRINIVASAN, J. 1. The facts of this case remind us in a way of the story of Abram and Sarai in the old testament. Sarai was the wife of Abram, but she was barren. She requested her husband to have a child through her Egyptian handmaid Hagar. He complied with the request and got a son named Ishmael. But, with the blessings of God, Sarai begot a son by name Isaac. The Lord named Abram as Abraham and Sarai as Sarah. In the present case also, the first defendant, who is the first appellant herein married the first plaintiff Lakshmi Ammal, his sisters daughter in about 1947, They had no issue till about 1954. According to him, she requested him to marry again and have children. He agreed to that request and married another sisters daughter Munirathnammal, who is the second appellant second defendant. No doubt, the first plaintiff, who is the first respondent herein, denies that she wanted her husband to marry again. According to her, there was no such marriage and all on a sudden, her husband brought Munirathnammal to his house and she quarrelled with him and went out of her husbands house. But, in her evidence, she admits that all the members of the family including the plaintiffs and the defendants were living together as one family till about a year and half prior to the filing of the suit. The evidence makes out that the second marriage was only with the consent of Lakshmi Ammal, the first plaintiff and not as pleaded by her. 2. The first appellant executed a settlement deed Ex. B7 in the first instance on 2.6.1954 giving certain properties to the first plaintiff so that she could maintain herself in case the second wifes children neglect her. But she refused to accept the same as they were too small. He executed another settlement deed, Ex. B1 dated 5.7.1954 giving to her one half of Survey Number 226/4 of a total extent of 3.39 acres. Thus, she was given 1.69-1/2 acres. She was also given a part of another property adjacent to suit item No. 9. The remaining half of Survey No. 226/4 is item No. 1 in the plaint schedule. 3. Little did they know the plans of the Lord at that time. As the great Vaishnavite Savant Sri Vedanta Desika said (Sri Paduka Sahasra Ch. She was also given a part of another property adjacent to suit item No. 9. The remaining half of Survey No. 226/4 is item No. 1 in the plaint schedule. 3. Little did they know the plans of the Lord at that time. As the great Vaishnavite Savant Sri Vedanta Desika said (Sri Paduka Sahasra Ch. XXVIII V. 6) (That The Lordss mind is inscrutable, is evident here. The first defendant got sons through both wives almost simultaneously. The first son of the first plaintiff was born on 18.10.1955. At about the same time, the first son of the second defendant was also born, though the exact date of birth is not known. The first son of the first plaintiff died very shortly thereafter. She got two other sons, who are plaintiffs 2 and 3, born in about 1960 and 1970 respectively. The second defendant begot two more sons. The sons of the second defendant are not impleaded as parties to these proceedings. It is the case of the plaintiffs that the marriage between the first defendant and second defendant was void in law. 4. Till about 1978, there was no dispute between the parties and admittedly they were all living together as one family. Thereafter, quarrels arose which led to the filing of the present suit for partition and separate possession. The property which was given to the first plaintiff under the settlement Ex. B1 is not made subject matter of the suit. The remaining properties are shown in the schedule to the plaint. It is the case of the plaintiffs that all the properties are joint family properties in as much as items 1, 2 and 9 of plaint schedule are ancestral properties and items 3 to 8 are acquired with the ancestral nucleus. Schedule ‘B’ sets out outstandings due to the first defendant. The first plaintiff will be entitled to one half share in the property as her eldest son Rajendran died after the passing of the Hindu Succession Act. According to her, Rajendrans half share passed on to her as his only legal heir under the said Act. In the remaining half, which was owned by the first defendant, plaintiffs 2 and 3 had by birth 1/3rd share each. According to her, Rajendrans half share passed on to her as his only legal heir under the said Act. In the remaining half, which was owned by the first defendant, plaintiffs 2 and 3 had by birth 1/3rd share each. Thus, according to the plaintiffs, they are together entitled to 5/6th share in items 1 to 8 of the ‘A’ Schedule properties and 11/12th share in the 9th item. According to the plaint the family had only one half share in item No. 9 and the other half share was owned by the first plaintiff in her own right. The plaint also prays for a share in the outstandings and accounting of the income from the properties. 5. The case of the defendants is that the properties were not ancestral properties and items 1, 2 and 9 belonged to the grand-mother of the first defendant by name Alamelu Ammal absolutely, and on her death they were inherited by the first defendant as her grandson, her son Allimuthu Mandiri having predeceased her. The said properties did not yield much income so as to enable purchase of items 3 to 8. They were purchased with the earnings made by the first defendant by doing business in grains and cattle. The second wifes son should have been impleaded as parties and the suit is bad for non-joinder. He incurred debts which are binding on the plaintiffs and without making any provision for payment of debts, the plaintiffs cannot have their share in the properties even if they are joint family properties. 6. The trial court framed as many as 9 issues. The first issue relates to the marriage between the first defendant and the second defendant. The trial court has held that the marriage was void in view of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act No. 6 of 1949. The second issue is whether items 1, 2 and 9 are the ancestral properties of the first defendant. The issue is answered in the affirmative. The third issue is whether items 3 to 8 are the self acquired properties of the first defendant and the issue is answered in the negative. The fourth issue relates to the outstandings. The Court holds that two items are subsisting and they should be divided. The 5th issue relates to the debts mentioned by the first defendant. The third issue is whether items 3 to 8 are the self acquired properties of the first defendant and the issue is answered in the negative. The fourth issue relates to the outstandings. The Court holds that two items are subsisting and they should be divided. The 5th issue relates to the debts mentioned by the first defendant. The Court has left open that issue to be raised later in appropriate proceedings. The 6th issue is whether the suit is bad for partial partition as the other part of Survey Number 226/4 is not included in the plaint schedule. The Court has answered it in the negative. The 7th issue relates to non-joinder of parties. The Court has not given any Finding on that issue. The 8th issue is whether the plaintiffs are entitled to get a share as claimed in the plaint. It is held that the plaintiffs are entitled together to 2/3rd share in the suit properties. The 9th issue relates to the reliefs while the additional issue is whether the first plaintiffs eldest son died after the Hindu Succession Act 30 of 1956. The Court has found the additional issue against the plaintiffs. 7. The aggrieved defendants have preferred this appeal. There is no appeal or memo of Cross Objections by the first plaintiff. Learned counsel for the appellants contends that the trial court having held that items 1, 2 and 9 of the suit properties belonged to Alamelu Ammal absolutely, erred in holding that her son Allimuthu Mandiri, the father of first defendant survived her and that the properties devolved on the first defendant after the death of his father and thus, they were ancestral properties. According to learned counsel, Allimuthu Mandiri predeceased Alamelu Animal and the first defendant succeeded to his grandmother directly and the properties belong to him absolutely. Secondly, it is argued that there was no income from items 1, 2 and 9 with which item 3 to 8 could have been purchased. According to learned counsel, the first defendant was carrying on business, the income from which was utilised for purchase of the said items. It is contended that the Court below is in error in not considering the claims of the second defendants sons, Ethiraj, Dayalan and Mahadevan. According to learned counsel, the first defendant was carrying on business, the income from which was utilised for purchase of the said items. It is contended that the Court below is in error in not considering the claims of the second defendants sons, Ethiraj, Dayalan and Mahadevan. The, last contention is that the Court below ought to have considered the debts owed by the first defendant in the present proceedings and should not have left it open to be raised by the creditors in later proceedings. 8. The contentions urged by learned counsel for the appellants on the facts are not sustainable. There is ample evidence on record to show that Allimuthu Mandiri survived his mother Alamelu Ammal. The properties were taken by him as her heir and the first defendant succeeded to the same only on his death. Suffice it to point out that Ex. B2 is a document under which the first defendant has purchased item 3 on 1.4.1949. According to his evidence, Alamelu Ammal, his grand-mother, died even when he was a child and his father died shortly after his purchase under Ex. B2. Thus, an inference is naturally drawn by the Court below that Alamelu died long before the said purchase and Allimuthu died thereafter. It follows that Allimuthu survived his mother. We do not find any error in the reasoning and we agree with the Court below that Allimuthu died long after Alamelu Ammal died. A perusal of the evidence of D.W. 1 shows that his case that Allimuthu predeceased his mother cannot be true at all. The circumstance pointed out by the Court below are sufficient to hold that Allimuthu survived his mother. Hence, we reject the first contention of learned counsel for the appellants. 9. The second contention is also without any merit. There is no record whatever to prove that the first defendant was doing business in cattle or grains so as to get an income with the aid of which items 3 to 8 could have been purchased. In the absence of acceptable evidence to show that the first defendant had independent income apart from what was yielded by the ancestral properties, the Court has to draw an inference that the purchases were made with the aid of joint family income. In the absence of acceptable evidence to show that the first defendant had independent income apart from what was yielded by the ancestral properties, the Court has to draw an inference that the purchases were made with the aid of joint family income. Hence, we reject the contention of learned counsel that items 3 to 8 are the self acquired properties of the first defendant. 10. Learned counsel for the appellants is well-founded in saving that the claims of the second wifes sons should have been considered. We will deal with this aspect of the matter a little later. Before that, we will consider the last contention of learned counsel that provision should have been made for payment of debts in the present proceedings it self. We accept the said contention to some extent. The question whether the debts set up by the first defendant are genuine or not has to be decided in the present proceedings itself. The said question may be decided in the final decree proceedings. When the sharers seek a division of the properties, it is necessary for the Court to decide as to whether such sharers should bear the burden of debts. Hence, the Court must decide in the final decree proceedings whether the debts pleaded by the first defendant as payable by the family are true, and if so, what is the share to be borne by the plaintiffs. It is not proper to relegate that question to separate proceedings to be instituted by the creditors at a later stage. The partition to be effected between the parties to be complete in all aspects, should cover the debts which the sharers are liable to pay. Hence, we direct that the question regarding the debts must be decided in the final decree proceedings. It is open to all the parties to adduce necessary evidence in support of their respective claims. 11. Incidentally, learned counsel for the first defendant contends that he has executed a settlement deed in favour of the second defendant under Ex. A1 on 6.12.1980 and the properties covered thereby should be excluded from division. The settlement deed dated 6.12.1980 is certainly not valid as the properties are joint family properties. No member of the joint family is entitled to make a gift of any part of the joint family properties. A1 on 6.12.1980 and the properties covered thereby should be excluded from division. The settlement deed dated 6.12.1980 is certainly not valid as the properties are joint family properties. No member of the joint family is entitled to make a gift of any part of the joint family properties. It is too well settled by now that even the donor can challenge the validity of such a gift and it is void ab initio. Vide Sivagnana Thevar v. Udayar Thevar (AIR 1961 Madras 356) and Perumalakkal v. Kumaresan Balakrishna ( AIR 1967 S.C. 569 .) Of course, there is an exception to the ruling in the case of transfer made in consideration of marriage. It has been held that such transfers are considered to be transfers for valid consideration and not gifts. Vide Srinivasa Padayachi v. Parvathammal (1969 II M.L.J. 597 = 82 L.W. 411). But, in the present case, Ex. A1 is not executed for consideration of marriage between the first defendant and second defendant. Admittedly, the second defendant was married some time in 1954. Hence, it cannot be contended that Ex. A1 will fall within the exceptions. It is also pointed out by learned counsel that there is no pleading or evidence to that effect. Hence, Ex. A1 is void and no right will enure to the benefit of the second defendant under that document. 12. The same cannot be said about Ex. B1, which is in favour of the first plaintiff. That is dated 5.7.1954 and admittedly at that time, the first defendant was the only coparcener in the family. There was no other coparcener and hence the gift of one half of S.F. No. 264/2 is valid. In fact, there was an earlier proceeding instituted by the first plaintiff in O.S. No. 615 of 1983 on the file of the District Munsifs Court, Ranipet for an injunction restraining the defendants from interfering with her possession. She claimed exclusive title to the property on the basis of Ex. B1. Her claim was upheld and a decree was passed in that suit. The said decree was affirmed by the District Court, Vellore and a Second Appeal against the same, viz., S.A. No. 122 of 1992 was dismissed by this Court in limine on 2.3.1992. Hence, it is no longer open to the first defendant to contend against the validity of Ex. B1. 13. The said decree was affirmed by the District Court, Vellore and a Second Appeal against the same, viz., S.A. No. 122 of 1992 was dismissed by this Court in limine on 2.3.1992. Hence, it is no longer open to the first defendant to contend against the validity of Ex. B1. 13. The question that remains to be considered is whether the sons of the first defendant through the second defendant are entitled to any share in the property and whether their claims should be recognised in these proceedings. The case of the plaintiffs that there was no marriage at all between the first defendant and the second defendant is not true. We have already referred to the fact that admittedly all the members of the family including plaintiffs 2 and 3 and the sons of the second defendant were living together as one family till about a year and half prior to the filing of the suit. The first plaintiff has admitted that in her deposition. Curiously, she says that she is not aware as to whether any child was born to the second defendant. That shows that she does not hesitate to speak falsehood. Hence, her case that she quarrelled with her husband when the second defendant entered the house and got separated even then, is false. There is no explanation as to how she got three sons, if she had lived away from her husband as claimed by her in the chief examination. There is ample evidence to hold that the entire family was living together and there was no quarrel between them till recently. 14. The evidence of the first defendant and second defendant makes out that there was a marriage between them in about 1954. No doubt, the marriage is not valid in view of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. Learned counsel for the appellants contends that the sons of the second defendant will be entitled to the benefits of S. 16 of the Hindu Marriage Act and they shall be treated as legitimate sons under that provision. Learned counsel for the appellants contends that the sons of the second defendant will be entitled to the benefits of S. 16 of the Hindu Marriage Act and they shall be treated as legitimate sons under that provision. Sub-S. (1) of S. 16 of that Act reads the us:— “Notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 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.” Learned counsel contends that though the marriage of the first defendant with the second defendant is void, the children must be treated as legitimate children by virtue of sub-S. (1) of S. 16. We are unable to accept the contention. Under sub-S. (1) of S. 16, only if the marriage is null and void under S. 11 of the Act, any child of such marriage can be treated as legitimate. S. 11 of the Act applies only to marriages solemnized after the commencement of the Act. Hence, S. 16 will apply only to marriages which took place after the Act came into force in 1955 and not to prior marriages. Consequently, the first defendant cannot claim the benefit of S. 16 of the Hindu Marriage Act. A Division Bench of this Court has taken the same view in Valliammal v. Kamalambal 1990-1-L.W. 461. Translation:— “Now it is specially said in the matter of the division of the wealth of a Sudra, even a son begotten by a Sudra on a female slave may get share by the fathers choice. The son begotten by a sudra on a female slave obtains a share by the fathers choice and at his pleasure.” 17. The text has been considered by a Division Bench of this court in Karuppanna Chetti v. Bulokam Chetti I.L.R. 23 Madras 16. It was a suit for partition by the first plaintiff and his son against the first plaintiffs father and younger brothers and their sons. The text has been considered by a Division Bench of this court in Karuppanna Chetti v. Bulokam Chetti I.L.R. 23 Madras 16. It was a suit for partition by the first plaintiff and his son against the first plaintiffs father and younger brothers and their sons. Defendants 8 to 13 were illegitimate sons of first defendant by a concubine, who had lived permanently with him. The question was whether defendants 8 to 13 were entitled to any and what share in the partition. The District Munsif referred to earlier judgments as well as the texts of Manu and held that the son of a Sudra, born of a permanent concubine, is, strictly speaking, not an illegitimate son, but a legitimate aurasa son born of a gandharva marriage. He found that defendants 8 to 13 were each entitled to half the share of a legitimate son at the partition of ancestral property. It should be noted that the District Munsif was Sri Sadasiva Aiyar, who became a Judge of this High Court later and had an occasion to refer to this judgment in one of his judgments. The judgment of the District Munsif was appealed, and it was held by the District Judge that the father was entitled to give an equal share to his illegitimate son and placing reliance on the text quoted above, the District Judge held that the fathers pleasure as was expressed in the proceedings was that the illegitimate sons should take equal share with the legitimate sons. He made it a decree modifying the decree of the trial court on Second Appeal, the Division Bench upheld the judgment or the District Judge and dismissed the appeal. 18. The said judgment was considered by a Full Bench of this Court to which Sadasiva Aiyar, J. was a party, in Soundararajam v. Arunachalam Chetty, 29 M.L.J. 793. He refers to the above judgment and observes:— “The learned Chief Justice in his Referring Order has summarised the rulings in all the important cases on the question of the right of the illegitimate son of a Sudra to claim a share in paternal property. I may state shortly that I respectfully adopt the opinion of Sir S. Subramania Iyer, J., in the case Karuppannan Chetti v. Bulokam Chetty 1899 I.L.R. 23 Mad. I may state shortly that I respectfully adopt the opinion of Sir S. Subramania Iyer, J., in the case Karuppannan Chetti v. Bulokam Chetty 1899 I.L.R. 23 Mad. 16 that the son of a Sudra woman continuously kept by a Sudra father is entitled to obtain a full share in the fathers property at his fathers choice during the fathers life-time and to obtain a half share with the legitimate sons of the father after the fathers death if the connection between his father and his mother was neither adulterous nor incestuous.” 19. In Ramalinga Muppan v. Pavadai Goundan I.L.R. 25 Madras 519, a Division Bench comprising of Benson, J. and Bhashyam Ayyangar, J. held that a legitimate son of an illegitimate son was entitled to succeed to the property left by his grand-father. While discussing the text of Mitakshara, it is said:— “The author of the Mitakshara defines the rights of an illegitimate son in Chapter I, S. 12. He lays down that a son begotten by a Sudra on a female slave can be given a share by the fathers choice; but that after the death of the father leaving legitimate male issue, they must allow their illegitimate brother half a share. But, if the father died without leaving legitimate male issue, but leaving a daughter or daughters son, the illegitimate son takes half a share along with the daughter or daughters son, as the case may be. But in default of a daughter or daughters son the illegitimate son takes the whole estate.” 20. In Deivanai Achi v. R.M.Al.Ct. Chidambaram Chettiar, AIR 1954 Madras 657 = 67 L.W. 965, a question arose whether a marriage in non-satiric form was valid. The Court held against the validity of the marriage. Consequently, the next question arose whether the issues out of such marriage, who were claiming to be legitimate children were entitled to take a share in the property of the father. Relying upon the judgment in Karuppannan Chettis case ILR 23 Madras 16 and the texts of Mitakshara, the Division Bench answered the question in the affirmative. It is worthwhile extracting the following passage in the said judgment:— (43) This finding leads us on the top to consideration of the question whether plaintiffs 2 and 3 would be entitled to a share in the properties. It is worthwhile extracting the following passage in the said judgment:— (43) This finding leads us on the top to consideration of the question whether plaintiffs 2 and 3 would be entitled to a share in the properties. Plaintiffs 2 and 3, being illegitimate sons of a permanent union, which does not amount to a valid marriage, it is claimed, they are entitled to a share in the joint family property at the choice of the father during his lifetime when he makes a partition. Reliance was placed in support of this contention on the text of Mitakshara, Chapter I, S. 12, Commentary on Yagnavalkya Dayavibhaga 133-134. The text of Yagnavalkya is that even a son begotten by a Sudra on a female slave may take a share at his fathers choice. “Fathers choice ” is interpreted by Mitakshara as by Pithuruichaya i.e., by the fathers choice or at his pleasure. Of course, if the father be dead, the brothers should make him a partaker of a moiety of a share but during the fathers lifetime the illegitimate son has no right to claim a share against the father, for, he acquires no right by birth in the property. If there is no right by birth, the right to partition does not exist. (44) It is contended on behalf of the appellants that the text should be restricted to the division of self-acquired properties of the father and riot to the joint family properties, as in that event, the existing rights of the other coparceners, who had acquired right by birth in the property, would be diminished by the exercise of the choice of the father. The father could dispose of his self-acquired properties in any manner he pleases. He can make an unequal division. Under Hindu Law, it has been established that the father has an overriding right to bring about a division of the property between himself and his son, subject, however, to the qualification that the allotment made by him is not unequal or unfair. There is no necessity for conferring a right on the father to allot a share to the illegitimate sons when he decides to divide his self-acquired property. It is open to him to give away the entire self-acquired property to the illegitimate sons. There is no necessity for conferring a right on the father to allot a share to the illegitimate sons when he decides to divide his self-acquired property. It is open to him to give away the entire self-acquired property to the illegitimate sons. Under strict Mitakshara law, it is true that right by birth is recognised both in self-acquired property as well as in joint family property, the father having wider power of disposing of his self-acquired property than in the case of joint family property, but the theory no longer holds the field and if is unnecessary to empower the father to give a share to the illegitimate sons restricting his right to self-acquired property as without the text relied on, the father had otherwise ample power in disposing of his self-acquired property in any manner he liked. The text cannot, therefore, be construed as referring to self-acquired property. It applies in our opinion, to joint family property. (45) It was then argued that it applies only when the father exercises his superior right to divide the property when it was open to him to exercise his choice of allotting a share to the illegitimate sons also along with the legitimate sons, but if as in the present case, the power is invoked after the institution of the suit, it is not open to the first plaintiff to now exercise his choice long after the institution of the suit. In Karuppannan Chetty v. Bulokam Chetti, ILR 23 Mad 16, the power was allowed to be exercised in a suit. There is no reason, therefore, to restrict the choice only when the father exercises his parental right. It was there pointed out that there is no foundation for the suggestion that the text should be restricted to the self-acquired property of the father. The correctness of this decision was never disputed and we see no reason to differ from it.” 21. It is seen from the above passage that a division in status would not deprive the father of the right to exercise his choice as there was no actual division by metes and bounds which became complete and final. 22. Once again the question was raised before another Division Bench in Dorai Babu Chetty v. Gopalakrishna Chetti AIR 1960 Madras 501 = 73 L.W. 385. 22. Once again the question was raised before another Division Bench in Dorai Babu Chetty v. Gopalakrishna Chetti AIR 1960 Madras 501 = 73 L.W. 385. The Division Bench referred to the original texts as well as the case-law on the subject and reiterated the proposition. In fact, it was contended in that case by eminent counsel Sri. K.V. Venkatasubramania Iyer whose scholarship and depth of knowledge of Hindu Law were unfathomable and unparalleled, that the texts were not correctly interpreted. It was argued before the bench that the existence of any rights of an illegitimate son had to be judged solely on the basis of the time factor, viz., whether at the time of the fathers death there was property on which his rights could operate and that if there was no property over which the father could be said to have a right to effect a partition between his sons, the illegitimate son would have no rights. Negativing that contention, the Bench said that the illegitimate son could claim a share in both the ancestral property as well as the separate property of the father. The relevant observation reads thus:— “Even assuming that their Lordships of the Supreme Court did not so lay down, as it was not necessary for the case before them, we have come to the conclusion that where a legitimate son has obtained property by way of partition of the joint family property, which he held along with his collaterals, such property would be ancestral property, in his hands, obtained by virtue of the right which he possessed to represent his father. Such property would be held in coparcenery by him with his illegitimate ha lf brother, notwithstanding the fact that the father died undivided with his brothers. The text of Yagnavalkya casts an obligation on the legitimate son, after the death of the father, to give the illegitimate son a share in the property such an obligation would exist not merely with regard to property left as the separate property (ancestral or otherwise), by the father, but also with respect to one got by the legitimate son by way of partition from the coparcenary of which the father died a member. We have already held that what the son gets at the partition is by virtue of a representa tion of his father, and, though he obtained such property by virtue of his rights in the coparcenary, it would not be his separate property. A claim to a share in such property would be within the ambit of the rights given to the illegitimate son under the texts.” 23. In Medai Dalavoi K. Thirumalaiyapa Mudaliar v. Media Dalavoi K. Shanmughanatha Mudaliar, ILR 1969-3- Madras 396 another Division Bench of this Court considered the matter in detail referring to the prior rulings of this Court. The relevant passages read thus:— (15) Under the Hindu Law, every coparcener is entitled to a share upon partition. This right of a coparcener extends to a son, who, though born after partition, was begotten at the time of the partition, that is to say, a son, who was in his mothers womb at the time of the partition, is entitled to a share though born after the partition. The Hindu law, as regards illegitimate sons makes a distinction between the illegitimate sons of the three regenerate classes and the illegitimate sons of Sudras: the illegitimate sons of three regenerate classes are not entitled to inheritance or to any share on partition but to maintenance only; in the case of the illegitimate sons of Sudras, the following text of the Mithakshara has been relied upon to give them a share: The son begotten by a sudra of a female slave obtains a share by his fathers choice or at his pleasure. But after the demise of the father; if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share, that is, let them give him half as much as is the amount of one brothers allotment. Based upon this text, the following propositions are set down in Mullas Hindu Law (13th Edition) page 364. The illegitimate son of a Sudra does not acquire by birth an interest in his fathers estate; consequently, he cannot enforce a partition against his father during his lifetime. But the father may, in his lifetime, give such illegitimate son a share in his property, even a share equal to that of a legitimate son. The illegitimate son of a Sudra does not acquire by birth an interest in his fathers estate; consequently, he cannot enforce a partition against his father during his lifetime. But the father may, in his lifetime, give such illegitimate son a share in his property, even a share equal to that of a legitimate son. But, on the fathers death, the illegitimate son is regarded in the eye of law as a coparcener along with the legitimate son of his father. He has the right of survivorship and he can enforce a partition against the illegitimate son. But, at such a partition, the illegitimate son takes only one half of what a legitimate son would take. Cases have held that these principles conferring rights upon the illegitimate son apply not only to separate property, as it was thought at one time, but to coparcenary property as well. (16) It is a well established principle of Hindu Law that when a father purports to effect a partition, the partition is not only as between himself and his son, but is one which separates the interests of the sons inter se. In Kandasami v. Doraisami Ayyar 1880 I.L.R. 2 Mad. 317 the question arose whether an instrument of partition brought about by the father, who had three sons by his senior wife and two by his junior wife, dividing the properties among each of these sons, after reserving some items for himself, created, a division as between the sons. A Bench of this Court held (at pages 321 and 322). Assuming that the father executed the documents bona fide and in accordance with the Hindu Law, I see no reason to think that it could not alter the status of the sons. According to the Hindu law, it is competent to a father to make a partition during his life, and the partition so made by him binds his sons, not because the sons are consenting parties to the arrangement, but because it is the result of a power conferred on him, though subject to certain restrictions posed in the interest of his family. The learned judges disagreed with the view taken by the trial court that such a partition made by the father would affect only his individual status and his share in relation to his sons and could have no influence either on the relation of his sons inter se or of their shares between themselves. It will be seen accordingly that while unequivocal declaration of a son to get himself divided from the family may operate only to sever his interest in the family and bring about a separation of his status vis a vis the rest of the family leaving the rest of the family still joint, when a father effects a division allotting properties to his sons, so long as the partition is bona fide and the allotment of the properties cannot be challenged as unfair, the father brings about severance in status as between the sons themselves. It would necessarily follow therefrom that when a son announces his intention to separate, it does not put an end thereby to the fathers power under the Hindu Law. That power of the father which is of such amplitude as to enable him to bring about an alteration of the status of his sons inter se cannot be affected by the declaration of one of the sons to separate. If it should so happen that the father has illegitimate sons as well, the power of the father during his lifetime to give shares to his illegitimate sons cannot in principle be affected by the declaration to separate given by a legitimate son. The Hindu Law makes a distinction between a Sudra father with legitimate and illegitimate sons and a father of the other three regenerate classes with regard to the fathers power to provide for the illegitimate sons. It is difficult to accept the contention that solely by the device of giving a notice to separate, the legitimate son ca n effectively destroy the right of the Sudra father to provide for his illegitimate sons. Nor can we agree in this context, with the argument of Mr. It is difficult to accept the contention that solely by the device of giving a notice to separate, the legitimate son ca n effectively destroy the right of the Sudra father to provide for his illegitimate sons. Nor can we agree in this context, with the argument of Mr. Thyagarajan that for the reason that the plaintiff and his brothers had given notice of their intention to separate, their shares in the property had become determined and quantified and thereafter the father can have only an equal share with legitimate sons, “and if he seeks to make any provision for his illegitimate issue, he must do so only out of his are of the estate though the illegitimate sons have no right to a share or to demand partition during the lifetime of the father, they can obtain a share at the fathers choice or at his pleasure, and this power of the father to give a share to his illegitimate son cannot, to our minds, be destroyed by the severance in status brought about by notice of intention to separate, given by the legitimate sons, on the theory that on such notice, the legitimate son become entitled to obtain a share ignoring the existence of illegitimate sons.” Then the Bench referred to Karuppannan Chettis case (I.L.R. 23 Madras 16) and Deivanai Achis case (AIR 1954 Madras 657). Ultimately, the Bench said:— “It may be noticed that Karuppannan Chetti v. Bulokam Chetti (1889 I.L.R. 23 Madras 16) has been relied on in this regard. The power of the father to provide for his illegitimate sons would, according to this decision, be exercisable after a severance in status has been brought about and even the institution of the suit for partition but before the partition has been effected by metes and bounds.” 24. Thus, the Hindu Law recognises the right of a father who belongs to Fourth Class to make a provision at his desire for equal share for his illegitimate son along with legitimate son. In the present case, the first defendant has done the same by filing the affidavit referred to already, in this Court. 25. Thus, the Hindu Law recognises the right of a father who belongs to Fourth Class to make a provision at his desire for equal share for his illegitimate son along with legitimate son. In the present case, the first defendant has done the same by filing the affidavit referred to already, in this Court. 25. It is contended vehemently by learned counsel for the plaintiffs that once a division in status is effected by the filing of the suit between the parties, it is not open to the father to exercise his right so as to reduce the share of the plaintiffs, which has been crystallised on the date of suit by the filing of the suit. Reliance is placed on the following rulings in which it has been held that a notice by a coparcener to effect a partition of filing of a suit by a coparcener even if he is a minor, would bring about a division in status and thereafter the parties will be tenants-in-common and cease to be joint tenants:— (1) Musammat Girja Bai v. Sadashiv Dhunduraj (F31 M.L.J. 455 P.C.) (2) Nathamuni Mudall and others v. Parthasarathi Mudali and others (33 M.L.J. 203) (3) Ramalinga Annavi and others v. Narayana Annavi and others (43 M.L.J. 428 P.C.) (4) Krshnaswami Thevan v. Pulukuruppa Thevan (AIR 1925 Madras 717 = 21 L.W. 675). (5) Bhagwat Ram v. Ramji Ram (AIR 1947 P.C. 140 = 60 L.W. 466), (6) Kurapati Radhakrishna v. Kurapati Satyanarayana (1948 II M.L.J. 331 = (1949)62 L.W. 584 ), (7) Pandit Suraj Narain v. Pandit Ikbal Narain (I.L.R. 35 Allahabad 80), (8) Jagat Krishna Das v. Ajit Kumar Das (AIR 1964 Orissa 75) and (9) M.N. Aryamurthi v. M.L. Subbaraya ( AIR 1972 S.C. 1279 ). 26. None of the above rulings has considered the position whether a father can give by his desire an equal share to an illegitimate son in a partition. Those rulings will have no bearing in the present case. As pointed out already, several Division Benches of this Court have taken consistently the same view based on the Mitakshara text that the father belonging to the Fourth Class can give an equal share to his illegitimate son. The principle of Stare Decisis will apply. Apart from that, we find no reason to differ from the rulings referred to by us. The principle of Stare Decisis will apply. Apart from that, we find no reason to differ from the rulings referred to by us. An attempt is made by learned counsel for the plaintiffs to contend that Karuppannan Chettis case (ILR 23 Madras 16) and Deivanai Achis case (AIR 1954 Madras 657) lay down wrong law. We have no hesitation to reject that contention and hold that the law laid down in both the cases is correct and in accordance with the principles of Mitakshara law. 27. It is then contended by the plaintiffs that the desire of the father cannot be expressed when an appeal is pending. According to learned counsel, the preliminary decree passed in the suit has become conclusive in so far as the quantum of shares of the sharers is concerned, and it cannot be set at naught by a party at his will. There is no merit in this contention. It is well settled that an appeal is a continuation of a suit and it is open to the parties to avail the benefits of the law even when an appeal is pending. In S.V. Ramalingam v. K.E. Rajagopalan (1975 II M.L.J. 494 = 88 L.W. 477) and M. Sevugan Chettiar v. V.A. Narayana Raja (AIR 1984 Madras 334 = 97 L.W. 328) the mortgagor was permitted to redeem the mortgage by depositing the amount under O. 34, R. 5, Code of Civil Procedure during the pendency of an appeal against an order refusing to set aside a sale and confirming a sale. It was categorically held that during the pendency of the appeal, a party can make deposit under O. 34, R. 5 of the Code of Civil Procedure and set at naught the confirmation of the Court auction sale. Both the rulings were approved by the Supreme Court in Maganlal v. Jaismal Industries, Neemach AIR 1989 S.C. 2113 . 28. It has been recently held in G. Sai Reddy v. S. Narayana Reddy 1991 3 S.C.C. 647, by the Supreme Court, while interpreting S. 29-A of the Hindu Succession Act, 1956 as amended by Hindu Succession (A.P. Amendment) Act, 1986, similar to the Tamil Nadu Hindu Succession (Amendment) Act, 1989 that a preliminary decree can be varied later and the quantum of share fixed therein can also be changed by later events. The relevant in the judgment reads thus:— “A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves, are liable to be varied on account of the intervening events.” 29. Thus, we are convinced that in law it is open to the first appellant to express his desire that his illegitimate sons should get equal shares as his legitimate sons and the partition must be effected only on that basis. We have also noticed that in Karuppannan Chettis case (I.L.R. 23 Madras 16), the option was exercised by the father only during the pendency of the proceedings in Court. 30. It is next contended by learned counsel for the plaintiffs that the exercise of the power by the first defendant to give an equal share to his illegitimate sons in the present case is not bona fide and it will cause great hardship to the plaintiffs. It is also submitted that a partition on the basis of the affidavit now filed by the first defendant will be inequitable. We are unable to accept this contention. As pointed out already, the first plaintiff has been given under Ex. B1 dated 5.7.1954 an extent of 1.69 1/2 acres. She was also given a part of another property adjacent to suit item No. 9. Both the items are not included in the suit properties. The total extent of the suit properties is only 5.53 1/2 acres. If plaintiffs 2 and 3 are given 2/3rd share in the suit properties, they will get 3.69 1/2 acres. She was also given a part of another property adjacent to suit item No. 9. Both the items are not included in the suit properties. The total extent of the suit properties is only 5.53 1/2 acres. If plaintiffs 2 and 3 are given 2/3rd share in the suit properties, they will get 3.69 1/2 acres. If the property already given to the first plaintiff is added, the total extent will be 5.38 1/2 acres, whereas the first defendant and the sons of the second defendant will have only an extent of 1.84 1/2 acres in all. Thus, the partition, if effected on the basis of the preliminary decree, will cause a great inequity. It is only to avoid the said inequity, the first defendant has exercised his right to give equal shares to his sons through the second defendant. Even then, plaintiffs 2 and 3 will together get 1.84 acres and odd. Adding that to the first plaintiffs 1.691/2 acres, the total comes to 3.531/2 acres and odd, whereas, the first defendant and second defendants sons will have 3.69 acres and odd. It cannot be denied that the sons of the second defendant are as much sons of the first defendant as plaintiffs 2 and 3. The second defendant has throughout been living with the first defendant as his wife and the first plaintiff was also living with them in the same house. The sons of the second defendant were also treated on par with plaintiffs 2 and 3. In the circumstances, there is no question of want of bona fides on the part of the first defendant in exercising his right to give an equal share to illegitimate sons. 31. Consequently, the preliminary decree passed by the Court below granting 2/3rd share to plaintiff 2 and 3 in the suit properties is not sustainable. Hence, we set aside the decree passed by the trial court. 32. In view of our above findings, it is necessary to implead the three sons of defendants 1 and 2 viz., Ethirajan, Dayalan and Mahadevan as parties to this appeal as we have declared their rights in the properties. Hence, we exercise our suo motu powers and implead Ethirajan, Dayalan and Mahadevan, sons of defendants 1 and 2, as respondents 4 to 6 in this appeal. Hence, we exercise our suo motu powers and implead Ethirajan, Dayalan and Mahadevan, sons of defendants 1 and 2, as respondents 4 to 6 in this appeal. In substitution of the decree passed by the Court below, a preliminary decree is passed declaring that plaintiffs 2 and 3, 1st defendant and respondents 4 to 6 herein are each entitled to 1/6th snare in items 1 to 9 of plaint ‘A’ Schedule and in items 12 and 13 of plaint ‘B’ Schedule. With regard to the debts pleaded by the first defendant, an enquiry will be held in the course of final decree proceedings. The genuineness and binding nature thereof shall be decided therein. Respondents 4 to 6 are entitled to take part in the final decree proceedings. In the final decree application, they shall be shown as parties. The appeal is allowed on the above terms. The appellants will get their costs from the respondents.