Judgment : .1. Defendants 1 to 3 in O.S.No. 484 of 1976 on the file of the Sub-Court, Salem are the appellants herein. The respondents 1 and 2 herein filed the said suit for partition and separate allotment claiming 5/12th share in the suit property. They put forth their claim for partition on the ground that the suit property belongs to one Karuppa Udayar and his sons Nainamalai and Velayutham as joint family property. After the death of the said Karuppa Udayar, his two sons Nainamalai and Velayutham are entitled to have equal share in the suit property. The first plaintiff in the suit is the son of Nainamalai and the second plaintiff is his widow. The third defendant is the wife of Karuppa Udayar who is entitled to l/3rd share. 2. The defendants 1 to 3 contested the suit stating that Nainamalai married one Pappathiammal, the fourth defendant in the suit as his second wife and got a son through her by name Arunachalam, the fifth defendant in the suit. Since the defendants 4 and 5 are also entitled for a share out of the share of Nainamalai, the plaintiffs are not entitled for the share as they claimed in the plaint. 3. The trial court after considering both the oral and documentary evidence available on record found that Nainamalai never married the fourth defendant as his second wife and she is only a concubine and as such the fifth defendant is not entitled for any share in the property of Nainamalai; that there was an oral partition and allotment of shares between the two brothers Nainamalai and Velayutham, and decreed the suit and granted a preliminary decree for partition and separate possession in favour of the plaintiffs for 5/6th share by judgment and decree dated 31. 1983. 4. Against the said judgment and decree of the trial court the defendants 1 to 5 preferred an appeal, even though the defendants 4 and 5 remained ex parte before the trial court. The said appeal was numbered as A.S.No.85 of 1983 on the file of the District Court, Salem. By judgment and decree dated 13.1 1.1984 the learned District Judge dismissed the appeal, confirming the finding of the trial court. 5. Aggrieved by the judgments of the courts below, the present second appeal has been filed by the defendants 1 to 3. The said appeal was numbered as A.S.No.85 of 1983 on the file of the District Court, Salem. By judgment and decree dated 13.1 1.1984 the learned District Judge dismissed the appeal, confirming the finding of the trial court. 5. Aggrieved by the judgments of the courts below, the present second appeal has been filed by the defendants 1 to 3. The respondents 3 and 4 in the second appeal remained absent. 6. When the second appeal was heard on 13. 1998 the same was dismissed by this Court on the ground that the findings with regard to the marriage of the fourth defendant with Nainamalai is adverse to the defendants 4 and 5 in the suit. As they have not challenged the same, the appellants cannot be considered to be the aggrieved persons and as such they are not entitled to maintain the second appeal. 7. Against the judgment of this Court, an appeal was preferred before the Supreme Court in Civil Appeal No. 459 of 1999. By order dated 2. 99 the Apex Court has allowed the appeal on the ground that the second defendant was a purchaser from the defendants 4 and 5 and as such it cannot be said that he had no locus standi to maintain the second appeal. It is open to him to demonstrate that his vendors had legal title to convey the property to him and hence the question of law framed in the second appeal has to be answered and accordingly the appeal was remitted for fresh disposal and the same is listed. 8. The learned counsel for the appellants contended that the father of the first respondent and the husband of the second respondent herein, Nainamalai is entitled for a share and the property has been divided between Nainamalai and his brother Velayutham, the first defendant. As there had been an effective partition between Nainamalai and the first defendant, out of the share of the said Nainamalai, the fifth defendant is entitled for a share as an illegitimate son, even though there is no marriage between the said Nainamalai and the fourth defendant pappathi Ammal. There is no dispute that the fourth defendant lived with the said Nainamalai for considerably a long period and as such there is a presumption of valid marriage between the two. There is no dispute that the fourth defendant lived with the said Nainamalai for considerably a long period and as such there is a presumption of valid marriage between the two. Even if such marriage is not valid, still the fifth defendant is entitled for a share as an illegitimate son as per Section 16(3) of the Hindu Marriage Act. 9. The learned counsel for the respondents contended that the burden is on the person who claims the benefit under Section 16(3) of the Hindu Marriage Act to establish that there was a marriage between his parents. Only if such marriage is established and if it is void or voidable the claimant will be entitled for a share. If there is no marriage at all between the parent and the mother is only a permanently kept concubine of her paramour, the claimant will not be entitled for a claim under Section 16(3) of the said Act. Both the courts below have concurrently held that there is no marriage at all between the fourth defendant and the said Nainamalai and as such the fifth defendant is not entitled to claim any share on the basis that he is in illegitimate son of the said Nainamalai. .10. The question of law framed at the time of admission of the second appeal reads as under: .“Whether the courts below have properly appreciated and applied the principles under Section 16(3) of the Hindu Marriage Act, 1955, as amended by Act 68 of 1976, to the facts of the present case.” 11. The Apex Court has remitted the matter only to answer this question. As stated already, the defendants 4 and 5 remained ex parte and they have not filed any written statement, putting forth their claim for their share, as the heirs of Nainamalai. The second defendant, the son of the first defendant seems to have put forth the plea before the apex court that he is a purchaser from the fourth defendant and as such he is entitled to maintain the second appeal. He has also not filed any separate written statement. The third defendant, the mother of the first defendant and his brother Nainamalai, filed the written statement which was adopted by the second defendant. The contents of the written statement filed by the third defendant is that Nainamalai had another wife Pappathi Ammal and son through her by name Arunachalam. He has also not filed any separate written statement. The third defendant, the mother of the first defendant and his brother Nainamalai, filed the written statement which was adopted by the second defendant. The contents of the written statement filed by the third defendant is that Nainamalai had another wife Pappathi Ammal and son through her by name Arunachalam. Hence they are also the legal heirs of the said Nainamalai. The second defendant purchased a portion of the property on 5. 1976 from the said Pappathi Ammal and Arunachalam. By an oral partition the property was divided between Nainamalai and the first defendant about 40 years back. Even during the life time of Nainamalai a panchayat was held to settle and divide the properties among the first plaintiff and another son Arunachalam, In the panchayat Arunachalam and his mother Pappathi Ammal wanted the entire property to be given to them stating that the second plaintiff left Nainamalai long back and she neglected to take care of her husband. Nainamalai became a leper and he was only with Pappathi Ammal and her son Arunachalam and therefore they are entitled to the properties. The trial court gave a finding that there was an oral partition and allotment of shares between Nainamalai, the father of the first plaintiff, the husband of the second plaintiff and Velayutham, the first defendant. The trial court further held that there was no family arrangement as pleaded by the second and the third defendants. .12. So far as the issues relating to the validity of the alienation made by the defendants 4 and 5 and the marriage of the fourth defendant with Nainamalai, the trial court held that there was no marriage at all between the fourth defendant and the said Nainamalai and as such she cannot be considered to be the second wife and consequently the fifth defendant cannot be the illegitimate son of the said Nainamalai. As there is no marriage between the fourth defendant and the said Nainamalai and the fifth defendant being an illegitimate son of Nainamalai, they are not entitled for a share in the property and consequently the sale deed executed by the fourth defendant in favour of the second defendant in null and void. 13. On appeal in A.S.No. 85 of 1983 the learned First Additional District Judge, Salem confirmed the said finding of the trial court. 14. 13. On appeal in A.S.No. 85 of 1983 the learned First Additional District Judge, Salem confirmed the said finding of the trial court. 14. Now in this second appeal we are not concerned with the question of the earlier partition or the family arrangement. The only question for consideration is whether the fifth defendant is entitled for a share as an illegitimate son of the said Nainamalai from out of the estate left by him. 115. Section 16 of the Hindu Marriage Act, as amended under Act, 68 of 1976 deals with the legitimacy of children of void and voidable marriages. The said section is as follows: “16(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 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. .(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. .(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights into 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.” Sub-section (1) begins with the non-obstante clause by stating ‘notwithstanding that a marriage is null and void under section 11...’. Section 11 of the said Act deals with the void marriages. Section 11 of the said Act deals with the void marriages. As per this provision, any marriage solemnised after the commencement of the Hindu Marriage Act, 1955 (Act 25 of 1955) shall be null and void an may, on a petition presented by either party thereto, against the other contravenes any one of the conditions specified in class (i), (iv) of section 5 of the said Act. So if the marriage is in contravention of the conditions specified in classes (i) (iv) and (v) of Section 5 are void marriages. 16. The conditions specified in classes i (iv) and (v) of Section 5 of the said Act are: .(i) neither party has a spouse living at the time of marriage, .(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; .(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” 17. In this case we are not concerned with classes (iv) and (v). Class (i) of Section 5 contemplates that neither party has a spouse living at the time of the marriage. Admittedly in the case on hand the second plaintiff, the wife of Nainamalai is living. To make his marriage with Pappathiammal a void one, a marriage ought to have been solemnised between the said Nainamalai and Pappathiammal, the fourth defendant. Admittedly there was no marriage in any form between the said Nainamalai and the fourth defendant Pappathiammal. Hence she can have only the status of a concubine and not a second wife. 18. Section 16 of the Hindu Marriage Act had been enacted to confer a right of inheritance on the illegitimate child born out of void or voidable marriage from out of the individual properties of their father. The section before amendment dealing with the children of void marriages provided that if a decree of nullity was passed, the children begotten or conceived before the decree would have been the legitimate children of the parties to the marriage, if it had been dissolved. As the old provision contemplated the necessity of a decree of nullity under Section 11 which took into its fold only the marriages in contravention of the conditions in classes (i) (iv) and (v) of Section 5. As the old provision contemplated the necessity of a decree of nullity under Section 11 which took into its fold only the marriages in contravention of the conditions in classes (i) (iv) and (v) of Section 5. The proviso to the old section is now incorporated as sub-section (3) of the said Act. 19. Sub-section (3) provides that in case of a child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12 though the child may be a illegitimate child under sub-section (1) or (2) the child would be entitled only to possess or acquire rights in or to any property of its parents and not to those of others, in fact, it means such child would not have the status of a legitimate so far as the persons other than the parents are concerned. 20. A thorough reading of Section 16 makes it clear that there should be a void or voidable marriage between the parents of the individual who claims the status of an illegitimate child to get a share from out of the estate of his father. If there is no proof of any marriage, then the children born cannot also be treated as illegitimate children entitled for a share. In the judgment reported in Muthayya v. Kamu , 1981 (I) MLJ 107 it has been held as follows: “The result is there is no proof of any marriage between the first plaintiff and Meenakshisundaram and that the children born cannot also be treated as legitimate children.” 22. In the case on hand there is absolutely no evidence to establish the question of marriage between Nainamalai and the fourth defendant. More so, both the courts below have concurrently, on a question of fact, held that there was no marriage at all in any form between the said Nainamalai and the fourth defendant. When there is no marriage, the fourth defendant can be only a concubine of the said Nainamalai. Section 16 of the said Act do not deal with the rights of the children through the concubinage. .23. When there is no marriage, the fourth defendant can be only a concubine of the said Nainamalai. Section 16 of the said Act do not deal with the rights of the children through the concubinage. .23. The learned senior counsel for the appellants made an attempt to establish that the fourth defendant Pappathiammal is the second wife of the said Nainamalai on the basis of the presumption due to their long cohabitation and living together as husband and wife and further the village karnam D.W.3 has stated that after the death of Nainamalai his properties were divided between the two wives, the second plaintiff and the second plaintiff and the fourth defendant and as such the fourth defendant had been treated as the wife of the said Nainamalai and hence even though there is no form of marriage between Nainamalai and the fourth defendant Pappathiammal, she should be considered as the second wife of the said Nainamalai and consequently the fifth defendant will be entitled for the status of the illegitimate son of the said Nainamalai, entitling for a share. .24. It may be worthwhile to refer further a passage from the judgment in Muthayya v. Kamu , 1981 (I) MLJ 107 referred to supra, which reads as follows: .“The learned counsel for the appellant submitted by referring to two decisions that there could be no presumption as regards her marriage. In S.A No. 592 of 1921 dated 18th January, 1924, the case being reported in short-notes at page 8 of 46, M.L.J. Odgers, J., held that under Section 112 of the Evidence Act the presumption of legitimacy arises only on proof of a marriage, and that if a marriage in fact is proved, then it might be presumed to be valid. He further held that where a man had already married a woman had children by her, there was no presumption that another lady with whom he was said to have lived was his wife or his children by her were legitimate. There can thus be no presumption in a case like this.” 25. He further held that where a man had already married a woman had children by her, there was no presumption that another lady with whom he was said to have lived was his wife or his children by her were legitimate. There can thus be no presumption in a case like this.” 25. Even in considering this argument of the learned senior counsel for the appellant, it has to be considered that the presumption of the marriage can be drawn by the long cohabitation of the man and the woman and their living together and they have been treated by their relatives and the society as husband and wife. .26. It is rather unfortunate that the fourth defendants who claims the status of the second wife and the fifth defendant Arunachalam who claims to be the legitimate son of the said Nainamalai have not filed any written statement claiming such plea. The third defendant, the mother of the first defendant and his brother Nainamalai even though stated that Nainamalai married the fourth defendant, no particulars with regard to the marriage is forthcoming. In the written statement filed by the third defendant, adopted by the second defendant, it is stated that Nainamalai lived with the fourth defendant, No particulars have been stated with regard to the time of desertion by the second plaintiff, the first wife of Nainamalai and the period for which the fourth defendant and Nainamalai lived together. Here also it may be pertinent to note that living together means they ought to have been lived together for considerably a long period and just the paramour visiting the place of the concubine cannot be considered to be living together and which confers a right of inheritance to the children as illegitimate one. Merely D.W.3 village Karnam has stated that after the death of Nainamalai the property was divided among his two wives, it cannot be said that the relatives of the said Nainamalai and the fourth defendant have treated them as husband and wife. In the absence of any evidence to show that the relatives of both the parties or the society at large have treated them as husband and wife, no such presumption can be drawn. 27. In the absence of any evidence to show that the relatives of both the parties or the society at large have treated them as husband and wife, no such presumption can be drawn. 27. Hence both the courts below have rightly held that the fourth and the fifth defendants are not entitled for a share from out of the estate of the said Nainamalai, as there was no form of marriage between the fourth defendant and the said Nainamalai. The courts below further held that when there is no marriage in any form between the fourth defendant and the said Nainamalai, the fifth defendant cannot be considered to be an illegitimate son who is entitled for the rights prescribed under Section 16(3) of the Hindu Marriage Act. 28. Hence the second appeal is dismissed. There will be no order as to costs.