Judgment : 1. Heard Mr.P. Jagadeesan for the appellants and Mr.D.Sivakumar, Caveator, for the respondents on various dates. 2. Defendants 1 to 3 in O.S.No.35 of 1987 on the file of the Sub Court, Namakkal, are the appellants herein. Respondents 1 and 2 herein, who are sisters, are the plaintiffs in the said suit. The respondents instituted the suit O.S.No.35 of 1987 on the file of the Subordinate Judge, Namakkal for partition and separate possession of their 8 out of 10 shares in the suit properties, against the appellants herein. 3. In this appeal, the parties will be referred to as plaintiffs and defendants respectively for the purpose of convenience. The plaintiffs state that they are the daughters of Nanthan alias Pattamuthuraja through Pappathiammal. The said Nanthan died intestate during the year 1978 and his first wife Pappathiammal died during the year 1983. The plaintiffs further pleaded that the 1st defendant Chinnapillai had married the said Pattamuthu as his 2nd wife and defendants 2 and 3 are respectively the daughter and the son born to the late Pattamuthu and Chinnapillai. The plaintiffs further averred that their father Pattamuthu contracted the 2nd marriage during the lifetime of their mother. The plaintiffs stated that they had an elder brother by name Arasiah who died as a bachelor in the year 1968 and his undivided 1/2 share in the joint family property devolved on their mother. After the death of their father, the remaining 1/2 share devolved upon the plaintiffs mother, plaintiffs and defendants and that they are entitled to 8/10 shares. 4. After the death of their father, the remaining 1/2 share devolved upon the plaintiffs mother, plaintiffs and defendants and that they are entitled to 8/10 shares. 4. The defendants filed a written statement as well as an additional written statement contending that the plaintiffs were not the daughters of the deceased Pattamuthu through Pappathiammal, that the deceased Pattamuthu did not have an alias name of Mookiah, that it is not correct to state that the deceased Pattamuthu has a son by name Arasiah through his 1st wife, that the deceased did not have sufficient ancestral properties, that the deceased went to Malaysia and the properties have been acquired only with his earnings at Malaysia, that the plaint scheduled properties 1, 3 and 4 are the self-acquisition of the deceased Pattamuthu, that the plaintiffs are not entitled to any share, that even assuming that Pattamuthu had a*son by name Arasiah as more than 12 years had elapsed, the rights of the said Arasiah got extinguished, that suit items 3 and 4 are residential house properties and hence, the plaintiffs who are residing with their husbands are not entitled to seek for partition, that as Pattamuthu died even before the division, the defendants are entitled to equal share as per the amended provisions of the Hindu Succession Act, and that the plaintiffs are not entitled to any share. 5. After trial, the trial court upheld the plaintiffs’ claim that they are the daughters of the deceased Pattamuthu through his wife Palaniammal, that Pattamuthu had a son by name Arasiah, who died as a bachelor, that the plaintiffs are entitled to 8/10 shares but the plaintiffs are not entitled to seek for division in respect of suit items 3 and 4 till the 3rd defendants seeks for partition. Being aggrieved by the finding rendered by the trial court as well as the judgment and decree of the trial court, the defendants preferred A.S.No.253 of 1993 on the file of the District Court, Salem, while the plaintiffs preferred cross-objections. The 1st appellate court confirmed the findings of the trial court holding that the plaintiffs are entitled to 8/10 shares and the defendants are entitled to the remaining 2/10 shares, and that the deceased Pattamuthu had a son by name Arasiah, who died as a bachelor and his share devolved on his mother and ultimately the plaintiffs are entitled to the same. 6. 6. Both the courts below have concurrently found that the marriage of Pattamuthu with Chinnapillai is void and that the 3rd defendant as well as the 1st defen-dant born out of void marriage are illegitimate, which illegitimacy had been validated by Sec.16 of the Hindu Marriage Act. The 1st Appellate Court while confirming the judgment of the trial court allowed the cross-objections and held that the plaintiffs are entitled to seek for partition even in respect of plaint items 3 and 4, residential houses. Being aggrieved, the defendants have preferred the present second appeal. 7. Pending the suit, the plaintiffs gave up their claim in respect of suit items No.2 by filing a memo on 28.4.1993. The trial court granted a decree in respect of suit items 1 and 2 and in respect of suit items 3 and 4, the plaintiffs are entitled to a declaration that they are entitled to 8/10 shares, but till division is effected by the 3rd defendant, the plaintiffs cannot seek for division of suit items 3 and 4 as they are residential houses. 8. The first appellate court had reversed the said conclusion in respect of suit items 3 and 4 and held that the plaintiffs are entitled to 8/10 shares even in respect of suit items 3 and 4 also. 9. In this second appeal, the learned counsel for the appellants has raised the following substantial questions of law: (i) Whether the lower appellate court was right in holding that the plaintiffs are entitled to partition in the dwelling houses belonging to the joint family especially when the male heir does not seek partition of the said properties. (ii) Whether the lower appellate court was right in interpreting Sec.23 of the Hindu Succession Act in such a way that the female heirs also are entitled to seek partition of the dwelling house of the family in the case of the existence of a single Male heir. (iii) Whether the lower courts, were right in holding that the suit properties are hot the self-acquired properties of Nandan alias Patta Muthuraja, ignoring the very vital admissions made by P.W.2 in his testimony. (iv) Are not the defendants 2 and 3 entitled to equal share with the plaintiffs as per the provisions of Hindu Succession Act. (iii) Whether the lower courts, were right in holding that the suit properties are hot the self-acquired properties of Nandan alias Patta Muthuraja, ignoring the very vital admissions made by P.W.2 in his testimony. (iv) Are not the defendants 2 and 3 entitled to equal share with the plaintiffs as per the provisions of Hindu Succession Act. (v) Whether the findings of the lower courts that the said Pappathi Ammal was the first wife of Nandan alias Patta Muthuraja and they had a male issued by name Arasayya who passed away during the year 1968 are correct, in the absence of any valid and convincing evidence to prove the same. 10. The learned counsel for the respondents contends that the suit item No.3 alone is a dwelling house and item No.4 is not a dwelling house, but it is only a cattle shed and hence, there can be no objection for division in respect of suit item No.4. The learned counsel for the appellants did not dispute this and confined his contention in respect of plaint item No.3 alone which is the dwelling house and this cannot be divided in terms of the Sec.23 of the Hindu Succession Act. The learned counsel for the plaintiffs contended that the defendant No.3 is an illegitimate son born of a void marriage and as such he cannot also resist the plaintiffs’ claim even in respect of suit item No.3, the dwelling house. 11. The learned counsel for the appellants contended that he did not challenge the findings of the two courts below that Pattamuthu had an alias name as Mookiah and he had married Pappathiammal, who died during the year 1983, that Pattamuthu died during the year 1978, that Pattamuthu married the 1st defendant during the subsistence of his 1st marriage with Pappathiammal, and that the defendants 2 and 3 were born out of the said marriage between Pattamuthu and Chinnapillai. The learned counsel for the appellants also did not challenge the finding that all the properties left by the deceased Pattamuthu are ancestral in character and also that they are not the self-acquisition of Pattamuthu. 12. Though the counsel for the appellants contended that the allotment of shares, i.e., 8/10 shares, is not correct and that the defendants are entitled to equal share, the learned counsel for the appellants is unable to persuade this Court to take a different view. 12. Though the counsel for the appellants contended that the allotment of shares, i.e., 8/10 shares, is not correct and that the defendants are entitled to equal share, the learned counsel for the appellants is unable to persuade this Court to take a different view. This question also will be considered along with the next contention as well. It was also contended by the counsel for the appellants that the first appellate court ought not have held that the plaintiffs are entitled to a division in respect of the residential houses under suit items 3 and 4 and ought to have held that those items are not liable to be divided till the 3rd defendant, who is a coparcener according to the learned counsel for the appellants, decides to divide the property and that the plaintiffs will be entitled to a right of residence till the division is effected in terms of Sec.23 of the Hindu Succession Act. 13. As regards the third question raised by the appellants, the two courts have held that the suit properties are not the self-acquired properties of Pattamuthu and in view of the concurrent findings recorded by the two courts below, this Court holds that no interference is called for. At any rate, there is every justifica- tion for the two courts below to hold that all the suit properties are ancestral properties and they are not the self-acquisition of Pattamuthu. 14. As regards the next question (No.IV), admittedly Arasiah. the son of Pattamuthu and Pappathiammal, born out of lawful wedlock was a coparcener and he died as a bachelor and as such his 1/2 share devolved on his mother Pappathiammal who was the class I heir of Arasiah. On the death of Pappathiammal, the said 1/2 share of Arasiah devolved on the plaintiffs who are the daughters of Pappathiammal. Further, the defendants 2 and 3 being the illegitimate children of Pattamuthu and Chinnapillai as they got married during the subsistence of the first marriage of Pattamuthu. Hence, the plea that they are entitled to equal share cannot be sustained in law. 15. Further, the defendants 2 and 3 being the illegitimate children of Pattamuthu and Chinnapillai as they got married during the subsistence of the first marriage of Pattamuthu. Hence, the plea that they are entitled to equal share cannot be sustained in law. 15. The 5th substantial question of law raised by the learned counsel for the appellants also is devoid of merits as the two courts below have concurrently found that Pappathiammal was the first wife of Pattamuthu alias Nanthan alias Mookiah and they had a son by name Arasiah who passed away as a bachelor in the year 1968. This being a concurrent finding of the courts below, this Court is not justified in interfering with the same. In this respect, it is pointed out by the learned counsel for the respondents that there exists no substantial question of law for the exercise of jurisdiction by this Court under Sec.100 of the Code of Civil Procedure and at any rate not being a question of law, this Court will not be justified in interfering with the findings of the two courts below and the decrees granted by the first appellate court. 16. The learned counsel for the respondents relied upon the judgment of the Supreme Court in Panchugopal Barua v. Umesh Chandra Goswami, (1997)2 MLJ. 27 (S.C.) the Apex Court held thus: “A bare look at Sec. 100, C.P.C. shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals as involved a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso of the section shows that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, nor formulated by it, if the court is satisfied that the case involves such a question. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ‘substantial question of law’ is the sine qua nonfor the exercise of the jurisdiction under the amended provisions of Sec.100, C.P.C.” 17. The proviso presupposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a ‘substantial question of law’ is the sine qua nonfor the exercise of the jurisdiction under the amended provisions of Sec.100, C.P.C.” 17. In the light of the said pronouncement, the questions of law, namely, (iii), (iv) and (v), are answered against the appellants. Next, this Court has to consider the substantial questions (i) and (ii) raised by the appellants. These questions will be considered together as they revolve around construction of Sec.23 of the Hindu Succession Act vis-a-vis the right of illegitimate daughter and son of Pattamuthu through Chinnapillai. 18. The finding that Pappathiammal was the first wife of Pattamuthu and they had a son by name Arasiah as well as the present two plaintiffs is a concurrent finding of fact and in fact, the learned counsel did not challenge the same at all. 19. The further finding that Pattamuthu married Chinnapillai during the subsistence of his marriage with Pappathiammal and out of the said marital relationship, the defendants 2 and 3 were born. It is contended by the learned counsel for the respondents that the defendants are illegitimate children of Pattamuthu. The learned counsel for the appellants however, contends that the defendants who were born out of such void marriage are also legitimate children and they are entitled to claim equal share. Further, the learned counsel for the appellants relied on Sub-sec.(3) of Sec. 16 of the Hindu Marriage Act and contended that nothing contained in Sub-sec.(1) or Sub-sec.(2) which shall be construed as conferring upon any child of a marriage which is null and void and any right in or to the property of any person other than the parents, but for the passing of this Act and such child could have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. On these aspects, the learned counsel appearing on either side relied on various pronouncements of this Court as well as the other courts besides those of the Supreme Court. 20. The learned counsel for the appellants relied upon the judgments of the Supreme Court reported in , A.l.R. 1996 S.C. 1826(1988)2 MLJ. On these aspects, the learned counsel appearing on either side relied on various pronouncements of this Court as well as the other courts besides those of the Supreme Court. 20. The learned counsel for the appellants relied upon the judgments of the Supreme Court reported in , A.l.R. 1996 S.C. 1826(1988)2 MLJ. 445,(1993)2 Divorce and Matrimonial Cases 80 (Division Bench of the Andhra Pradesh High Court) and contended that the defendants are entitled to equal share along with the plaintiffs and the allotment of 8/10 shares to the plaintiffs by the two courts below is illegal and that the plaintiffs are not entitled to any share in respect of item No.3 at least. It is pointed out that item No.4 is not a dwelling house and to that extent, the learned counsel for the appellants did not press his contention in respect of item No.4 with reference to Sec.23 of the Hindu Succession Act. 21. Before taking up the question of the rights of the illegitimate son and before coming into force of Sec. 16 of the Hindu Marriage Act and even in respect of those who contracted the second marriage before the commencement of the Hindu Marriage Act 1956, what are the rights that flow from such void marriages and what are the rights of issues born out such void marriage has to be considered. 22. In Gur Narain Das v. Gur Tahal Das , A.I.R. 1952 S.C. 225: (1952)2 MLJ. 251 ;1952 S.C.J. 305:1952 S.C.R. 869: 1952 M.W.N. 507 the Apex Court held that the illegitimate son of a Sudra of a continuous concubine has the status of a son, and he is a member of the family; the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son and it has been held thus: “(8) The third contention urged on behalf of the appellants relates to the question whether the plaintiff is entitled only to maintenance or to a share in the properties left by Nandkishore Das. The rights of an illegitimate son of a Sudra are considered in Mitakshara, Ch.1, S.12, which is headed “Rights of a son by a female slave, in the case of a Sudras estate.” This text was fully considered by the Privy Council in Vellaiayappa v. Natarajan Vellaiayappa v. Natarajan Vellaiayappa v. Natarajan , A.I.R. 1931 P.C. 294: 61 MLJ. 522: 1931 M.W.N 848: 134 I.C. 1064 and the conclusion derived therefrom were summarised as follows: Their Lordships are of opinion that the illegitimate son of a Sudra by a continuous cocubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is nor merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but is entitled as a member of the family to maintenance out of that property.” This statement of the law, with which we agree, may be supplemented by three other well-settled principles, these being firstly, that the illegitimate son does not acquire by birth any interest in his fathers estate and he cannot therefore demand partition against his father during the latters lifetime, secondly that on his fathers death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s), and thirdly that on a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son. (9) It seems to us that the second proposition enunciated above follows from the following passage in the Mitakshara text: “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.” If, therefore, the illegitimate son is a coparcener with the legitimate son of his father, it must necessarily follow that he is entitled to demand partition against the legitimate son. There can be no doubt that though the illegitimate son cannot enforce partition during the fathers lifetime and though he is not entitled to demand partition where the father has left no separate property and no legitimate son but was joint with his collaterals, he can enforce partition in a case like the present, where the father was separate from his collaterals and has left separate property and legitimate sons. ” 23. In Gopalakrishna Chetty v. Dorai Babu, (1948)2 MLJ. 221 (D.B.)Rajagopalan, J. speaking for the Bench held thus: “The learned advocate for the appellant referred us to Jogendra Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh their Lordships of the Privy Council who decided that case approved of the decision in Sadu v. Baiza. Their Lordships held that under the Mitakshara, among Sudras, where a father left a son by a wedded wife and an illegitimate son, the ordinary rule of survivorship incidental to a family coparcenary applied; and the illegitimate son having survived the legitimate, was entitled by survivorship to succeed to the family estate on the death of his brother without male issue. That, however, is not sufficient to hold that an illegitimate son in the position of the sixth defendant is a coparcener with his putative father and with the latters collaterals, that is, a coparcener in every sense of the term. No question of collaterals arose either in Jogendra Bhupati Hurrochandra Mahapatra v. Nityanand Man Singh or in Sadu v. Baiza. In Rathnasabapathi Udayar v. Gopala Udayar at page 696, Devadoss, J., pointed out that in Karuppa Goundan v. Kumarasami Goundan the learned Judges were not prepared to extend the principle laid down in Jogendras case, to the case of collaterals in the face of the rulings of this Court in Krishnayya v. Muthuswami and Ranoji v. Kandoji. Again at page 698, the learned Judge pointed out that in Viswananthaswami Naicker v. Kamu Ammal Miller and Rahim, JJ., were not prepared to hold that the illegitimate son was a coparcener with his fathers collaterals. At page 695, Devadoss, J., summed up the position, “The illegitimate son of a Sudra is not a coparcener with his father though he may be a coparcener with his fathers legitimate son. At page 695, Devadoss, J., summed up the position, “The illegitimate son of a Sudra is not a coparcener with his father though he may be a coparcener with his fathers legitimate son. In order to get a share of the grandfathers property along with the fathers brother or brothers sons, he must have acquired by birth an interest in the grandfathers property.” With these observations, we respectfully agree. The position was made even more clear in Vellayyappa Chetti v. Natarajan. At page 15, the Lordships of the Privy Council observed, on a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is nor merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, as in the present case, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that property; that his position in this respect is analogous to that of widows and disqualified heirs to whom the law allows maintenance because of their exclusion from inheritance and from a share on partition.“ As we have already pointed out, the presence of a legitimate son of the putative father aurasa or adopted, should make no real difference in principle.” 24. In Dorai Babu Chetty and another v. Gopalakrishna Chetty and another Dorai Babu Chetty and another v. Gopalakrishna Chetty and another Dorai Babu Chetty and another v. Gopalakrishna Chetty and another , (1960)73 L.W. 395: A.I.R. 1960 Mad. 501: I.L.R. (1960) Mad. 904 (D.B.), Ramachandra Iyer, J. speaking for the Bench, took the same view and held 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 and would be held in coparcenary by him with his illegitimate half brother notwithstanding the fact that the father died undivided with his sons. It is the state of law which prevails before the introduction of the Hindu Succession Act. 25. After the introduction of Sec. 16 of the Hindu Marriage Act, which validated the legitimacy of children born of void marriages consequent to the amendment of Sec. 16 of the Hindu Marriage Act by Marriage Laws Amendment Act 1976, a Division Bench of this Court held that Sec. 16 of the Hindu Marriage Act -which is retrospective in fact from the date of coming into force of the Hindu Marriage Act itself and the retrospective applicability in respect of marriages which have taken place before the coming into force of the Act, i.e., before 18.5.1955, cannot be extended thereto. 26. In Valliammal v. Kamalambal and others Valliammal v. Kamalambal and others Valliammal v. Kamalambal and others, (1990)1 L.W. 461 the Division Bench of this Court held thus: “Merely because Parliament considered that illegitimacy should not be foisted in respect of children born out of marriage which are hit by Sec. 11 of the Act, it does not mean that it had intended to legitimize off spring from out of bigamous marriages which had taken place prior to the coming into force of the Hindu Marriage Act. The intention was to remove the mischief only to a limited extent. It is expressly stated in Sec. 16 that it is confined to a child born out of ‘such’ a marriage, which means marriages which are covered by Sec.11. Sec. 11 is categoric that it deals with only certain categories of marriages which are solemnized” after the commencement of this Act. “ Therefore, the legislative intent was to grant relief only to limited instances i.e., only in respect of those children born of marriages solemnized on and after 18.5.1955 and covered by Sec.11 instances. Therefore, when Raju Mudaliar had married the first defendant on 1.5.1949, Madras Act 6 of 1949 having been in force prohibiting the said bigamous marriage being gone through, and the Act having been passed prohibiting bigamy; it was not a marriage solemnized as contemplated under Sec. 11 of the Hindu Marriage Act, and in turn Sec. 16 cannot be invoked. Therefore, the learned Judge was in error in applying Sec. 16 of the Hindu Marriage Act and granting relief to defendants 2 and 3.” 27. Therefore, the learned Judge was in error in applying Sec. 16 of the Hindu Marriage Act and granting relief to defendants 2 and 3.” 27. In Sivagnanavadivu Nachiar v. Krishnakantham, (1976)89 L.W. 706 (D.B.) also, an identical view has been taken by the Division Bench and it has been held thus: “We are unable to accept this construction because it totally overlooked the effect of the proviso to Sec. 16. But for the proviso, the view of the court below would be right. When the Section directs that on a decree of the nullity of the marriage, the children born of such marriage shall be deemed to be legitimate children notwithstanding the decree of nullity we have to take it that legitimisation will have effect from the birth of the children. Any other view will be odd, for, a child cannot be illegitimate for a period and legitimate for a subsequent period of his life. But having made it clear that the children born of such marriage would be regarded as legitimate children, nothwithstanding the decree for nullity, which would otherwise have the effect, because of the relation back principle, of enabling such children to line up along with the other legitimate children for purpose of succession, the right of such children to inherit should be limited and confined to the interests of their parents. The effect of the proviso is to so limit the logical result of legitimisation with relation back to the date of birth. The proviso forbids conferment of any right on the legitimtized child in the property of any person other than the parents, where, but for the passing of the. 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 other words, if Sec. 16 were not there, the result of declaring the marriage as nullity would be to regard the children born of such marriage as illegitimate in which case, they would not be entitled to any share at all in the property of the father, or to inherit any other property.” 28. The learned counsel for the appellant relied upon the judgment of T.N.Singaravelu, J. in Margabandhu v. Kothandarama Mandhiri , (1983)2 MLJ. The learned counsel for the appellant relied upon the judgment of T.N.Singaravelu, J. in Margabandhu v. Kothandarama Mandhiri , (1983)2 MLJ. 445 and contended that the children born of a void marriage under Sec.11 of the Hindu Marriages Act have the right to get share in ancestral property as if they are legitimate off spring. Subsequently, T.N.Singaravelu, J. reviewed the said judgment in Margabandhu v. Kothandarama Mandhiri , (1987)2 MLJ. 267 and held that the share of the legitimtized children in the properties would be confined to the interest of their parents and they are not entitled to claim an equal share along with the legitimate children. 29. The entire case law was analysed by Ratnam, J. in Perumal Gounder v. Pachayappan, A.I.R. 1990 Mad. 110 Ratnam, J. held thus: “7. Under Sec.4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of that Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void. Statutorily, therefore, the so-called marriage between the first appellant and the third respondent, even if such a marriage had taken place in 1953, is void. Therefore, the children born to the first appellant and the third respondent, viz., respondents 1 and 2 should be regarded as born outside lawful wedlock and rendered illegitimate children. Under Sec. 11 of the Hindu Marriage Act, any marriage solemnized after the commencement of the Act, viz., 18.5.1955 shall be null and void as contravening Sec.5(1) of that Act, viz., a party to the marriage having a spouse living at the time of the marriage. Under Sec.30 of the Hindu Marriage Act, the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 was repealed as unnecessary in view of the comprehensive provisions contained in the Hindu Marriage Act. A marriage which had been declared void under the Madras High (Bigamy Prevention and Divorce) Act, 1949 cannot be regarded to have become valid on the repeal of that Act. It has, therefore, to be taken that the void nature of the marriage between the first appellant and the third respondent should be treated as having continued at the time of the enacting of the Hindu Marriage Act, 1955. It has, therefore, to be taken that the void nature of the marriage between the first appellant and the third respondent should be treated as having continued at the time of the enacting of the Hindu Marriage Act, 1955. Under Sec. 11 of the Hindu Marriage Act, a marriage like the one between the first appellant and the third respondent is also void. Under Sec. 16 (1) of the Hindu Marriage Act, 1955, after the amendment in 1976, the offspring of a void marriage, who had been till then regarded as illegitimate, is declared to be legitimate and under Sec. 16(3), such children are conferred rights in or to the property of their parents in cases, where, but for the passing of the amending Act. such a child could not have acquired rights by reason of his not being the legitimate child. On the facts of this case, it follows that though in 1953, at the time when the first appellant married the third respondent, the marriage was void and had continued to be so even after the coming into force of the Hindu Marriage Act, 1955, yet, by reason of Sec. 16(1) and (3) of the Hindu Marriage Act as amended in 1976, respondents 1 and 2 had been declared to be the legitimate children of the first appellant and rights in the properties of the first appellant had also been conferred on them. The finding of the courts below that the properties owned by the first appellant are joint family properties was not challenged before this Court. Even so, the first respondent cannot be considered to be a coparcener entitled to a half share in the suit properties, along with his father, the first appellant herein. Under Sec.16(1) and (3) of the Hindu Marriage Act, there is no question of the conferment of the status of a coparcener on a person like the first respondent herein. On the other hand, right over the properties of the parents alone has been conferred on respondents 1 and 2, treating them as legitimate children of the first appellant. Considering the restricted statutory right so conferred, the first respondent cannot claim to be a member of the coparcenary along with the first appellant and on that footing seek the relief of partition in relation to the joint family properties. 8. Considering the restricted statutory right so conferred, the first respondent cannot claim to be a member of the coparcenary along with the first appellant and on that footing seek the relief of partition in relation to the joint family properties. 8. It would be useful in this connection to refer to the decision in Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan , (1976)89 L.W. 706 therein, it has been pointed out that with reference to Sec. 16 of the Hindu Marriage Act, children born of void marriages would be legitimate and such legitimization relates back to the date of their birth, but that the proviso forbids the conferment of any right on the legitimatized children in the properties of another person other than the parents and the policy appears to be not to enable such children to have full rights as legitimate sons and daughters. The view so taken fully supports the stand of the learned counsel for the appellants. However, in Margabandhu v. Kothandarama Mandhiri , (1983) 96 L.W. 448 : A.I.R. 1984 Mad. 270 it was held that the amendment to Sec. 16(1) of the Hindu Marriage Act, noticed earlier, would enable the legitimatized children to share equally with the legitimate children and that they are also entitled to claim shares equally with legitimate sons. This view is plainly opposed to the earlier decision in Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan, (1976)89 L.W. 706 referred to earlier. However, the decision in Margabandhu v. Kothandarama Madhiri Margabandhu v. Kothandarama Madhiri Margabandhu v. Kothandarama Madhiri , (1983)96 L.W. 448 : A.I.R. 1984 Mad. 270came to be reviewed in Margabandhu v. Kothandarama Mandhiri, (1987)2 MLJ. 267 and after referring to Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan Sivagnanavadivu Nachiar v. Krishnakanthan , (1976)89 L.W. 706 . the learned Judge held that the share of the legitimatized children in the properties would be confined to the interest of their parents and they are not entitled to claim an equal share along with the legitimate children. In other words, by the review of the judgment, the view taken has been brought in conformity with the decision in Sivagnanvadivu Nachiar v. Krishnakanthan Sivagnanvadivu Nachiar v. Krishnakanthan Sivagnanvadivu Nachiar v. Krishnakanthan , (1976)89 L.W. 706 . In other words, by the review of the judgment, the view taken has been brought in conformity with the decision in Sivagnanvadivu Nachiar v. Krishnakanthan Sivagnanvadivu Nachiar v. Krishnakanthan Sivagnanvadivu Nachiar v. Krishnakanthan , (1976)89 L.W. 706 . Considering the decision in Sivagnanvadivu Nachiar v. Krishnakanatan Sivagnanvadivu Nachiar v. Krishnakanatan Sivagnanvadivu Nachiar v. Krishnakanatan , (1976)89 L.W. 706 and Margabandhu v. Kothandarama Mandhiri, (1987)2 MLJ. 267 the first respondent, though he should be considered to be the legitimate son of the first appellant, cannot seek the relief of partition as such, but at best may be entitled to rights in the properties of the first appellant, after his death. The lower appellate court was, therefore, in error in granting a preliminary decree for partition in favour of the first respondent herein. Consequently, the second appeal is allowed, the judgment and decree of the lower appellate court will stand restored. Considering the relationship between the parties, each party is directed to bear his or her costs throughout.” 30. This Court respectfully agrees with the view taken by Ratnam, J. and in fact Ratnam, J. has relied upon the earlier Division Bench judgment of this Court in Sivagnanavadivu Nachiar v. Krishnakantham , (1976)89 L.W. 706 . 31. In Sudershan Karir v. State , A.I.R. 1988 Del. 368 H.C.Goel, J. held that any child born of a marriage, who would have been legitimate if the marriage had been valid, shall be legitimate irrespect of the fact that the marriage is null and void under Sec. 11, and whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under the Hindu Marriage Act, 1955 and whether the marriage is held to be void otherwise than on a petition under that Act. It has been held that: ”The trial court is perfectly right in observing that Sec. 16(1) comes into operation only in a case in which a marriage is in fact proved to have taken place between two persons, but which may be otherwise null and void as per the provisions of Sec.11. Sec. 11 provides for getting a marriage declared null and void on certain grounds as stated therein. Sec. 11 provides for getting a marriage declared null and void on certain grounds as stated therein. The present is not a case of a marriage having been performed between Smt. Sudershan Karir and Sham Sunder Karir which may otherwise be declared or alleged to be null and void. The present is a case of no marriage between these persons. As such, Sec. 16(1) does not come in aid to the case of the children born to Smt.Sundershan Karir.” 32. In Subbaraya Pillai v. Lakshmiammal , (1994)1 All India H.L.R. 184 (D.B.) Srinivasan, J. speaking for the Bench held thus: “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 Sec. 16 of the Hindu Marriage Act and they shall be treated as legitimate sons under that provision. Sub-sec.(1) of Sec. 16 of that Act reads thus: “Notwithstanding that a marriage is null and void under Sec.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-sec.(l) of Sec. 16, only if the marriage is null and void under Sec. 11 of the Act, any child of such marriage can be treated as legitimate. Sec.11 of the Act applies only to marriage solemnized after the commencement of the Act. Hence, Sec. 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 Sec. 16 of the Hindu Marriage Act. Sec.11 of the Act applies only to marriage solemnized after the commencement of the Act. Hence, Sec. 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 Sec. 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. 416. “22. Once again the question was raised before another Division Bench in Dorai Babu Chetty v. Gopalakrishna Chetti Dorai Babu Chetty v. Gopalakrishna Chetti Dorai Babu Chetty v. Gopalakrishna Chetti , A.I.R. 1960 Mad. 501 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. Venaktasubramania 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 on 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 coparcenary by him with his illegitimate half brother, notwithstanding the fact that the father died undivided with his brothers. Such property would be held in coparcenary by him with his illegitimate half 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 representation 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. ” 33. In P.E.K.Kalliani v. K.Devi P.E.K.Kalliani v. K.Devi P.E.K.Kalliani v. K.Devi , A.I.R. 1989 Ker. 279, the Division Bench of the Kerala High Court with reference to Sec. 16 of the Hindu Marriage Act, had that Sec. 16 of the Act confers legitimacy on the children born to the second wife and they are also the legal heirs of the deceased and the legitimacy conferred by Sub-sec.(1) Sec. 16 of the Act is on the children born of a marriage null and void under Sec. 11. Sec. 11 applies only to marriages solemnized after the commencement of the Hindu Marriage Act and does not relate to marriages solemnized prior to the said Act. The Division Bench held thus: “Learned counsel for the appellants Sri R.Bhaskaran has urged only one point before us and that is that the second wife and children are also the legal heirs of Raman Nair. According to learned counsel Sec. 16 of the Hindu Marriage Act confers legitimacy on the children born in the second wife and they are also the legal heirs of deceased Raman Nair. According to learned counsel Sec. 16 of the Hindu Marriage Act confers legitimacy on the children born in the second wife and they are also the legal heirs of deceased Raman Nair. The relevant clauses of Sec. 16 are extracted below: “Legitimacy of children of void and voidable marriages:(1) Notwithstanding that a marriage is null and void under Sec. 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 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. (3) Nothing contained in Sub-sec.(1) or Sub-sec.(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 Sec. 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 possession or acquiring any such rights by reason of his not being the legitimate child of his parents.” The legitimacy conferred by Sub-sec.(1) is on the children born of a marriage null and void under Sec. 11. Sec.11 applies only to marriages solemnized after the commencement of the Hindu Marriage Act and does not relate to marriages solemnized prior to the said Act Sec. 11 reads: “Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Sec.5.” Clause (i) of Sec.5 invalidates a marriage if either party has a spouse living at the time of Marriage. In the present case, however, there is no dispute that the second marriage of Raman Nair was prior to the commencement of the Hindu Marriage Act and it was at a time when his first wife Ammu Amma was living. In the present case, however, there is no dispute that the second marriage of Raman Nair was prior to the commencement of the Hindu Marriage Act and it was at a time when his first wife Ammu Amma was living. The invalidity of the second marriage is not for the reason of Sec. 11 which would apply only to marriage solemnized after the commencement of the Act. The second marriage of Raman Nair was at a time when the Madras Marumakkathayam Act, 1933 was in force. Sec.5 of the said Act provided that during the continuance of a prior marriage which is valid under Sec.4, any marriage contracted by either of the parties thereto on or after the date on which the said Act came into force shall be void. The invalidity of the second marriage of Raman Nair was therefore for the reason of violation of Sec.5 of the Madras Marumakkathayam Act. Sec. 16 of the Hindu Marriage Act does not purport to confer legitimacy on children born of a marriage invalid under the law in force prior to the commencement of the Act.” 34. Scope of Sec.16 read with Secs.11 and 12 of the Hindu Marriage Act were the subject matter of consideration by the Supreme Court in Yamunabai v. Anantrao Yamunabai v. Anantrao Yamunabai v. Anantrao , A.I.R. 1988 S.C. .644: J.T. (1988)1 S.C. 193 where the status of a Hindu woman marrying a Hindu male with a living spouse was the subject matter of consideration in respect of her claim for maintenance. The Apex Court held thus: “For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) have to be examined. Sec. 11 of the Act declares such a marriage as null and void in the following terms: “11. Void marriages:Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other pray, be so declared by a decree of nullity of it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Sec.5.” Clause (i) of Sec.5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void- because such a marriage was earlier recognized in law and custom. A reference was made to Sec. 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Sec.4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as Sec. 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Sec.5(i) of the Act. Sub-sec.(2) of Sec. 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Sec. 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of Sec. 16, which is quoted below, also throw light on this aspect: “16. Legitimacy of children of void and voidable marriages:Notwithstanding that a marriage is null and void under Sec. 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 (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. (2) Whether a decree of nullity is granted in respect of a voidable marriage under Sec. 12 any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of 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-sec.(1) or Sub-sec.(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 Sec. 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.” [Italics supplied] Sub-sec.(l), by using the words underlined above clearly implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceedings. While dealing with cases covered by Sec. 12, Sub-sec.(2) refers to a decree of nullity as an essential condition and Sub-sec. (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively Secs. 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception.” 35. In Bakulabai v. Gangaram Bakulabai v. Gangaram Bakulabai v. Gangaram, (1988)1 S.C.C. 537 L.L.Sharma, J. speaking for the Bench held thus: “…Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and appellant 2 Maroti was their child. In Bakulabai v. Gangaram Bakulabai v. Gangaram Bakulabai v. Gangaram, (1988)1 S.C.C. 537 L.L.Sharma, J. speaking for the Bench held thus: “…Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and appellant 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between appellant 1 and respondent 1, the status of the boy must be held to be of a legitimate son on account of Sec. 16 (1) of the Hindu Marriage Act, 1955, which reads as follows: 16(1) Notwithstanding that a marriage is null and void under Sec. 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 (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. Even if the factus of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of clauses (b) and (c) of Sec. 125 (1) of the Code specifically referring to an illegitimate child.” 36. In the light of the above pronouncements and the consistent views taken by various Division Benches of this Court, the contention that the defendants and in any event the 3rd defendant is entitled to equal share cannot be sustained in law. The learned counsel for the appellants relied upon Sec.23 of the Hindu Succession Act and also the recent pronouncement of the Apex Court in Narasimha Murthy v. Susheelabai Narasimha Murthy v. Susheelabai Narasimha Murthy v. Susheelabai , A.I.R. 1996 S.C. 1826 and contended that atleast in respect of plaint item No.3, the partition by a female heir has to be kept in abeyance and deferred during the lifetime of the 3rd defendant or till the 3rd defendant ceases to occupy the same or enjoys it or lets it out or till at a partition action, equities are worked out. The three Judges Bench of the Apex Court held thus: “It is, therefore, clear that though the right to succession devolves upon the female heir under Sec.8, being Class I heir to the Hindu intestate, in respect of the dwelling house, her right to seek partition has been interdicted and deferred only so long as the male heir(s) decide to remain occupied therein as undivided or continue to have it as a dwelling house. Though the words the male heirs choose to divide their respective shares’, suggest that at least two such male heirs must exist and decide not to partition the dwelling house in which event the right of the female heir is postponed and kept in abeyance until the male heir or heirs of the Hindu intestate decide to partition it, it does not necessarily lead to the only inevitable conclusion that the operation of Sec.23 must stand excluded in the case of the Hindu intestate leaving behind him/her surviving only son and daughter.” ……… “The above consideration would indicate that the legislature intended that during the life-time of the surviving male heir(s) of the deceased Hindu intestate, he/they should live in the parental dwelling house as partition thereof at the behest of the female heir would render the male heir homeless/shelterless. Obviously, to prevent such hardship and unjust situations, special provision was made in Sec.23 of impartiality of the dwelling House. Sec.44 of the Transfer of Property Act and also Sec.4(1) of the Partition Act appear to prevent such fragmentation of the ancestral dwelling house. Singular includes plural under Sec.13(2) of the General Clauses Act and may be applied to Sec.23 as it is not inconsistent with the context or subject. Even without resorting to it or having its aid for interpretation, by applying common sence, equity, justice and good conscience, injustice would be mitigated. After all, as said earlier, the purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and internal sense of it that makes the law meaningful. The letter of the law is the body but the sense and reason of the law is the soul. Therefore, pragmatic approach would further the ends of justice and relieve the male or female heir from hardship and prevent unfair advantage to each other. The letter of the law is the body but the sense and reason of the law is the soul. Therefore, pragmatic approach would further the ends of justice and relieve the male or female heir from hardship and prevent unfair advantage to each other. It would, therefore, be just and proper for the court to adopt common sense approach keeping at the back of its mind, justice, equity and good conscience and consider the facts and circumstances of the case on hand. The right of residence to the male member in the dwelling house of the Hindu intestate should be respected and the dwelling house may be kept impartible during the life time of the sole male heir of the Hindu intestate or until he chooses to divide and give a share to his sister or sisters or alienate his share to a stranger or lets it out to others, etc. Until then, the right of the female heir or heirs under Sec.8 is deferred and kept in abeyance. So, instead of adopting grammatical approach to construe Sec.23, we are of the considered view that the approach of the Calcutta and its Companion Courts is consistent with justice, equity and good conscience and we approve of it. We accordingly hold that Sec.23 applies and prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till he partitions or ceases to occupy and enjoy it or lets it out or till at a partition action, equities are worked out.” 37. However, in the present case, the third defendant, an illegitimate son born out of a void marriage, though legitimised under Sec. 16 of the Hindu Marriage Act, will not be entitled to resist the claim partition with respect to the residential house by invoking Sec.23 of the Hindu Succession Act as the legitimisation under Sec. 16 will not enable the third defendant to invoke Sec.23 and seek to deny the right of partition and division in respect of the residential house, namely plaint item No.3. The effect of Sec.16 of the Hindu Marriage Act read with Sec.23 of the Hindu Succession Act, in the considered view of the court, will not enable the defendant in the suit to postpone or defeat that claim of partition in respect of the residential house. 38. In the present case, it has neither been pleaded nor been established that the deceased Pattamuthu had married the 1st defendant after the coming into force of the Hindu Marriage Act and in the absence of pleadings or evidence that Pattamuthu married Chinnapillai after the coming into force of the Hindu Marriage Act 1956, there is no justification to assume that the defendants will be entitled to the benefit of Sec.16 (3). However, the plaintiffs have not chosen to challenge the findings of the trial court as well as the Appellate Court nor they have filed a second appeal in this respect. 39. In the circumstances, the judgment of the first appellate court is confirmed for the reason set out above and not for the reasons which found favour with the first appellate court. Hence, the second appeal is dismissed, but without costs. Consequently C.M.P.No.2064 of 1997 is also dismissed.