JUDGMENT N.K. Jain, J. 1. This judgment shall also dispose of S.A. No. 508/80 as both these appeals arise out of the judgment and decree dated 25/3/80 rendered in first appeal No. 1 -A/77 by the Court of Distt. Judge Mandleshwar (West Nimar), in affirmance of the judgment and decree dated 2/8/76 passed in C.O.S. No. 3-A/73 by the Court of Civil Judge, Class-I, Khargone - Camp Mandleshwar. 2. The suit giving rise to this appeal was brought by late Balram and the present Appellant Mishrilal, Bhagwan and Mulibai for partition of disputed lands received in an earlier partition by Balram with his brothers Anandilal and Ramchandra the Respondents No. 2 and 3 herein who were also arrayed as proforma Defendants in the suit. The Respondent No. 1 Nathu is the legitimate son of late Balram born of his first wife. Balram had contracted second marriage with Appellant No. 3 Mulibai. The Appellant No. 1 Mishrilal and No. 2 Bhagwan were born of this second wedlock. 3. The suit was resisted by Defendant - Respondent No. 1 Nathu. He denied the factum of validity of marriage of Mulibai with Balram as also Mishrilal and Bhagwan being legitimate sons of Balram. He also denied any right of Mulibai, Mishrilal and Bhagwan in the suit property. He claimed to be in possession of the suit land to the exclusion of all the Plaintiffs. According to him the suit was barred by limitation. 4. The two Courts below have concurrently held: (a) That Plaintiff Mulibai was not legally married wife of late Balram; (b) That Mishriial and Bhagwan, though born to her of Balram were not legitimate sons of Batram; (c) That the property in question was co-parcenary property acquired by Batram in partition with his brothers: (d) That possession of Nathu over the property was as a co-share; (e) That the suit was within time; and (f) That only Balram was entitle to 1/2 share in the suit property. Other Plaintiffs were not entitled to any share in the property. 5. On these findings the Plaintiffs' suit was decreed in part only to the extent 1/2 share for Balram alone while it was dismissed as regards claim for shares of Mulibai, Mishrilal and Bhagwan. The claim as to mesne profits was left to be decided after enquiry under Or. Other Plaintiffs were not entitled to any share in the property. 5. On these findings the Plaintiffs' suit was decreed in part only to the extent 1/2 share for Balram alone while it was dismissed as regards claim for shares of Mulibai, Mishrilal and Bhagwan. The claim as to mesne profits was left to be decided after enquiry under Or. 20 R. 12 Code of Code of Civil Procedure and it was directed that the mesne profits shall be restricted for a period from the date of the passing of the decree till delivery of possession or 3 years whichever is less. The decree was affirmed in first appeal vide judgment impugned. 6. Appellants Mishrilal, Bhagwan and Mulibai have filed appeal No. 356/80 seeking partition of equal share in the property with Respondent No. 1 Nathu and No. 4 Balram, while Balram has filed appeal No. 508/80 seeking correction in the decree regarding mesne profits which according to him should be paid from the date of the decree until delivery of possession of his share. Appellant Balram has, however, died during the pendency of this appeal (No. 508/80). Mishrilal and Bhagwan have been substituted in place of Balram on the basis of a Will allegedly executed by late Bairam in favour of his these two sons. Before proceeding to consider his appeal it needs to be clarified that the question as to the vailidity of the Will is not being considered in this appeal. The parties shall be, therefore, free to agitate their rights or to oppose this Will in some other appropriate proceedings. 7. Appeal No. 356/80 has been admitted on following substantial questions of law: (a) Whether the Appellant-Plaintiffs Mishrilal and Bhagwan, even being illegitimate sons of Balram, were entitled to share in the partition, in accordance with the provisions of the Hindu Succession Act, 1956 ? (b) Whether likewise, Mulibai, even being not a lawfully wedded wife of Balramji, was equally entitled to a share in the partition ? and (c) if so, result. 8. Appeal No. 508/80 has been admitted on following substantial question of law: Whether the Court below was right in confirming the decree of the trial Court with respect to mesne profits limiting it to the period of three years ? 9. Defendant Nathu has filed cross - objection seeking dismissal of the suit in its entirity. 10. 8. Appeal No. 508/80 has been admitted on following substantial question of law: Whether the Court below was right in confirming the decree of the trial Court with respect to mesne profits limiting it to the period of three years ? 9. Defendant Nathu has filed cross - objection seeking dismissal of the suit in its entirity. 10. I have heard Shri A.P. Polekar, learned Counsel for the Plaintiffs and Shri R.C. Chhazed, learned Counsel for Respondent-Defendant No. 1 Nathu. 11. Taking the first question first, under General Law a legitimate child is born in lawful wedlock. It is well settled that except in the cases where special provision to the contrary is made by any enactment, a marriage which is null and void or declared to be null and void or annuled by the Court on the ground of Its voidability, will inevitably have the effect of basterdising any child born of the parties to such marriage. Under old Hindu Law (Mitakashara) such an illegitimate child of Brahmin, Kshatriya or Vaishya is not entiled to any inheritance or any share on partition (see: Sections 43 and 314 of the Principles of Hindu Law by Mulla 16th Edn.). However, the position is now changed with the enactment of Hindu Marriage Act, 1955, Section 16 of which as it stands amended by the Amending Act, 1976, thus provides: 16. Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such 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 then on a petition under this Act. (2) Where a decree or nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parities to the marriage if at the date of the decree it had been dissolved instead of being annuled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annuled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. 12. Sub-section (1) and (2) of this Section make it abundantly clear that even in case of a marriage void or voidable under the Act, children of any such marriage have the status of legitimate children. Such children would be regarded in law as legitimate children of parents for all purposes including succession under the Hindu Succession Act, 1956. But the protection given under these two Sub-sections, is subject, of course, to the rule contained in Sub-section (3) which lays down that such children cannot by relying on the status confer on them by Sub-sections (1) and (2) claim any right in or to the property of any person other than the parents. The Sub-section (3) read as a whole clearly indicates that children of a void marriage cannot claim share to a co-parcenary property. 13. Division Bench of Bombay High Court in Shantaram v. Dagubai ( AIR 1987 Bom. 182 ) has held "the property to which such a child can lay claim must be the separate property of the parents and not the co-parcenary property in which the parent has a share". 14. Similar view has been taken by the High Courts of Madras and Andhra Pradesh (see: Perumal Gounder v. Panchayapan AIR 1990 Mad. 110 and Jagailamudl v. Jagarlamudi Jagdish AIR 1992 A.P. 291 ). 15. It will be thus seen that Plaintiff Mishrilal and Bhagwan though acquired status of legitimate sons of Balram by virture of Section 16 of the Hindu Marriage Act, did not acquire any right to claim share in the co-parcenary property. The question in appeal No. S.A. 356/80, is, therefore, answered in negative and against the Plaintiffs. 16. 15. It will be thus seen that Plaintiff Mishrilal and Bhagwan though acquired status of legitimate sons of Balram by virture of Section 16 of the Hindu Marriage Act, did not acquire any right to claim share in the co-parcenary property. The question in appeal No. S.A. 356/80, is, therefore, answered in negative and against the Plaintiffs. 16. As regards second question, under Hindu Law a wife can not herself demand a partition, but if a partition takes place between her husband and his sons, she is entitled to receive a share equal to that of a son. It is, also, true that expression "wife" in relations to "sons" includes their step mother. However, before such a wife can claim share in the partition, it must be shown that she is a legally married wife. There is nothing in law which recognises a wife not legally married. In the instant case, it has already been held that marriage of Mulibai with Balram was void on account of her first husband being alive at the time of her marriage with Balram. That being so, she cannot be treated as wife and is, therefore, not entitled to claim any share in the partition between her husband and his son Nathu the Defendant No. 1. I, therefore answer this question in negative and against the Appellants. 17. Coming to the appeal No. 508/80 filed by late Balram, the only grievance of the Appellant is that awardment of mesne profits could not be restricted to 3 years and that the Appellant is entitled to such profits right upto the date of delivery of possession of his share. In my considered opinion the contention deserves to be accepted. 18. The two Courts below seems to have applied provision of Or. 20 R. 12 Code of Code of Civil Procedure in the matter of awardment of mesne profits. It is, however, well settled that Rule 12 cannot at all apply to partition suit and the profits to be accounted for are not mesne profits. A partition suit is covered by Or. 20 R. 12 Code of Code of Civil Procedure in the matter of awardment of mesne profits. It is, however, well settled that Rule 12 cannot at all apply to partition suit and the profits to be accounted for are not mesne profits. A partition suit is covered by Or. 20 R. 18 Code of Code of Civil Procedure In suit for partition the Plaintiff co-sharer is entilted to and the Court below has ample jurisdiction to award profits or rendition of accounts of the income of Plaintiff's share of the properties right upto the delivery of possession and not upto 3 years only (see: D. Satyanarayana Murthi v. D. Bhavanna AIR 1957 A.P. 766, Basavayya v. Guravayya AIR 1951 Mad 938 (F.B.),and S. Reddiar v. Hazra Bibi AIR 1973 Mad. 237 ). The question in this appeal, therefore, deserves to be answered in favour of the Appellant and the decree impugned needs to be modified accordingly. 19. This brings me to the cross-objection filed by the Defendant Nathu. According to him his father Balram was not entitled to any share in the suit properties. The contention is not sustainable in law. Both the Courts below on appreciation of evidence have concluded that the properties in question were ancestral property of Balram and his two brothers and have fallen to the share of Balram in the partition with his brothers. It is further held that the Defendant Nathu was in possession of the property as a co-sharer and did not, therefore, hold the property to the exclusion of other co-sharers. These are all findings of fact not open to challenge in second appeal. The cross-objection taken by the Defendant Nathu, therefore, deserves to be rejected. 20. In the result I dismiss S.A. No. 356/80 as also the cross-objection taken by Nathu. However, S.A. No. 508/80 filed by late Balram is allowed and the decree impugned is modified and it is directed that Balram's share in the profits accruing from the suit properties shall be calculated from the date of the decree till delivery of separte possession of Balram's share in the porperties. There shall be, however, no order as to the costs of these appeals.