JUDGMENT ( 1. ) THIS is a plaintiffs' second appeal against the judgment and decree of the lower Appellate Court which has modified the shares allotted by the trial Court in a suit partition filed by them. ( 2. ) FOR the purpose of convenience, the parties are referred to as they are referred to in the original suit. Plaintiffs 1 and 2 are the sons of plaintiff No. 3 who is the wife of defendant No. l. Defendant No. 4 is the second wife of defendant No. l. Defendants 2 and 3 are the sons born to the first defendant through defendant No. 4. The plaintiffs case is that, Sy. No. 177 measuring 8 acres 39 guntas, Sy. No. 177/2 measuring 8 acres 39 guntas, Sy. No. 182/2/1 measuring 4 acres 6 guntas, Sy. No. 182/2/2 measuring 4 acres 6 guntas and Sy. No. 182/3/2 measuring 4 acres 34 guntas, all situated at Kusnoor village, are ancestral properties. Sy. No. 193 measuring 13 acres of Kusnoor village was granted to defendant No. l under the provisions of the karnataka Land Reforms Act as he being the elder member of the family. House bearing Nos. 1-27 and 2-7 are also ancestral properties. Their grievance is first defendant illegally married the mother of defendant Nos. 2 and 3 about 14 years back, they are the illegitimate children. Therefore, each of the plaintiffs are entitled to l/3rd share in the coparcenary property. ( 3. ) AFTER service of summons, the first defendant entered appearance. At his instance his second wife-fourth defendant was impleaded after the matter was remanded by the lower Appellate Court when the trial Court on an earlier occasion had held the suit was bad for non-joinder of necessary parties. The first defendant denied the relationship between himself and plaintiff No. 3. He denied that the fourth defendant is his second wife. He contended that the third plaintiff tried to give position to him and ran away from the house with 8 tola of gold and silver ornaments worth rs. 8,000/- without consent of defendant No. 1 by committing theft. Therefore, plaintiff No. 3 is no more his wife and only defendant No. 4 is his legally wedded wife. Plaintiffs 1 and 2 have no right to claim partition in the suit schedule item. He denied the claim of the plaintiff. 8,000/- without consent of defendant No. 1 by committing theft. Therefore, plaintiff No. 3 is no more his wife and only defendant No. 4 is his legally wedded wife. Plaintiffs 1 and 2 have no right to claim partition in the suit schedule item. He denied the claim of the plaintiff. He also set up a plea of partition in the year 1981 in the presence of Panchas. He contended that the suit schedule 'properties were given to his share in the said partition. Therefore, the present suit filed by the plaintiffs who have been given their share in the properties is not maintainable. ( 4. ) DEFENDANTS 1 to 3 also filed an amended written statement denying the claim of the plaintiffs. Fourth defendant also filed her written statement contending that she is the legally wedded wife of the first defendant and her marriage took place on 2. 2. 1955 and defendants 2 and 3 were born out of the said wedlock. First defendant married plaintiff No. 3 without her consent and behind her back and, therefore, plaintiffs I and 2 are the illegitimate children who have no right in the coparcenary property. On the aforesaid pleadings, the trial Court famed seven issues as under: 1. Whether the defendants prove that there has been an oral partition in July, 1981 as per the details given in para no. 7 of written statement? 2. Whether the defendant No. 1 proves that he has divorced the plaintiff No. 3 in the year 1967-68 and therefore she is not entitled to any share in the family property? 3. Whether defendant No. 1 further proves that Mahadevi and mother of defendant No. 2 and 3 is his legally wedded wife (deleted)? 4. Whether the defendant No. 1 proves that the lands survey no. 177 and 177/2 are his self acquired properties? 5. Whether the plaintiffs proves that they are entitled for partition of suit properties as prayed? 6. Whether the plaintiff have valued the suit property and sufficient Court fee has been paid? 7. What order or decree? the third issue was recasted as issues 3 (a), 3 (b) and 3 (c ). Further one more additional issue was framed. They are as under: 3 (a) Whether the plaintiffs proves that Mahadevi's marriage with defendant No. 1 is void, as alleged in plaintiff? 7. What order or decree? the third issue was recasted as issues 3 (a), 3 (b) and 3 (c ). Further one more additional issue was framed. They are as under: 3 (a) Whether the plaintiffs proves that Mahadevi's marriage with defendant No. 1 is void, as alleged in plaintiff? 3 (b) Whether the plaintiffs prove that the suit property except sy. No. 193 are ancestral properties of the parties? 3 (c) Whether the plaintiffs suit is bad for non-joinder of necessary parties? additional Issue 1. Whether the defendants prove that the plaintiff No. 2 basavaraj is not being heard since last more than 13 years in the Village of Kusnoor and he has not been seen or heard by anybody including his relatives? ( 5. ) THE first plaintiff was examined as PW. 2. Third plaintiff was examined as PW3. Three witnesses were examined as PWs1, 4 and 5. They produced 28 documents which were marked as Exs. P1 to P28. On behalf of the defendants, first defendant was examined as DW1 and fourth defendant was examined as DW4. They are examined two witnesses as dws. 2 and 3 and produced 20 documents which were marked as Exs. D1 to D20. ( 6. ) THE trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the oral partition set up by the first defendant is not proved. The case of the defendant No. 1 that he divorced the plaintiff No. 3 in the year 1967-68 and, therefore, she is not entitled to any share in the family property was held to be not proved. The first defendant has failed to prove that the land bearing Sy. No. 177 and 177/2 are his self acquired properties. Plaintiffs have proved that all he joint family properties are ancestral properties and, therefore, they are entitled to a share in the said properties. Plaintiffs have further proved that the first defendant's marriage with the fourth defendant is void. Further they have established the suit property except Sy. No. 193 are ancestral properties of the family. Plaintiffs suit is not bad for non-joinder of necessary parties. It also held that the defendants have failed to prove that plaintiff No. 2 is not being heard since last more than 13 years in the village of Kusnoor. Further they have established the suit property except Sy. No. 193 are ancestral properties of the family. Plaintiffs suit is not bad for non-joinder of necessary parties. It also held that the defendants have failed to prove that plaintiff No. 2 is not being heard since last more than 13 years in the village of Kusnoor. Therefore, it decreed the suit of the plaintiffs granting l/4th share to each of the plaintiffs and the first defendant. Aggrieved by the said judgment and decree of the trial Court, the defendants preferred a regular appeal. The lower Appellate Court on re-appreciation of the entire evidence on record and after formulating the points for consideration affirmed the findings of the trial Court that all the suit schedule properties are joint family properties and third plaintiff is the legally wedded wife of the first defendant. Fourth defendant is the second wife whose marriage is void. Defendants 2 and 3 are the illegitimate sons of the first defendant. But, it set aside the finding of the trial Court that the illegitimate children have no right to a share in a co-parcenary property. It held after the amendment to the Hindu Marriage Act, 1976 (sic 1955) the status of the children born from void marriages is treated on par with the coparceners and their share is also enlarged equally to that of the copacreners meaning thereby in the joint family properties defendants 2 and 3 are also entitled to get a share in the joint family properties of the i, family of defendant No. l and plaintiff. Therefore, it held plaintiffs 1 to 3 are entitled to get l/4th share each in all the items of the properties and accordingly held that the plaintiffs 1 to 3 are entitled to l/6th share each in all the item Nos. 1 to 9 plaint schedule properties and the defendants 1 to 3 are entitled to l/6th share each in all the item Nos. 1 to 9 suit schedule properties and accordingly it allowed the appeal altering the aforesaid shares. Aggrieved by the said judgment and decree of the lower Appellate court, the plaintiffs are in second appeal. ( 7. 1 to 9 plaint schedule properties and the defendants 1 to 3 are entitled to l/6th share each in all the item Nos. 1 to 9 suit schedule properties and accordingly it allowed the appeal altering the aforesaid shares. Aggrieved by the said judgment and decree of the lower Appellate court, the plaintiffs are in second appeal. ( 7. ) SRI Madhava Reddy, the learned Counsel appearing for the appellants contended that, even after amendment to the Hindu Marriage act were the status of illegitimate children born out of a void marriage is raised to the statuse of legitimate children they have not been conferred right in the co-parcenary property and they are not treated as co-parceners and that at a partition between the co-parceners they are not entitled to a share in the co-parcenary property. ( 8. ) PER contra, the learned Counsel for the respondents supported the impugned judgment and decrees. The substantial questions of law that arise for consideration in this second appeal is:- 1. Whether the illegitimate children born out of void marriage are regarded as co-parceners by virtue of the amendment to the Hindu Marriage Act, 1956? (sic 1955) 2. At a partition between the coparceners whether they are entitled to a share in the said properties? ( 9. ) THIS question is no more res Integra. This Court had an occasion to consider the aforesaid substantial questions of law in the case of Sri kenchegowda Vs. K. B. Krishnappa and Others, ILR 2008 Kar. 3453 where it is held as under:- "23. Section 16 of the Act contains a legal fiction. It is by a rule of 'fictio juris' that the Legislature has provided that, children though illegitimate shall nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. . However, it is a legal fiction with limitation. The reason behind such limitation is that the Parliament had no intention of eclipsing the settled concepts of Hindu Law such as coparcenary, coparcener, coparcenary property, joint family and joint family property, right of coparcener to acquire by birth and interest in the coparcenary or joint family property, under Mitakshara Law. Therefore, the object sought to be achieved by this provision is two-fold. Firstly the restoration of status. Therefore, the object sought to be achieved by this provision is two-fold. Firstly the restoration of status. For the act of the parents over which the innocent child had no control, and for no fault of it, had to suffer a permanent set back in life and being called a bastard, an illegitimate child. This social evil was wiped out. For all practical purposes the child was treated as a legitimate child born of a lawful wedlock. Secondly, the cause for such a status of affair was their parents. Therefore, in the properties of the parents equal rights are given to such children, as that of the children born of lawful wedlock. After achieving this twin object, the parliament took care to see that conferment of status and right to property on the illegitimate child did not invade the rights of others, who are also innocent and who are in no way responsible for this sorry state of affairs. Thus, the illegitimate child covered by Section (1) or (2) of Section 16 of the Act, even on conferment of legitimacy, was not allowed by law to claim equal status under hindu Law as that of a legitimate child. Though by the aforesaid provision the illegitimate child has been conferred the status of a legitimate,child, it did not confer the status of a coparcener. Consequently, such a child did not acquire any right by birth in any property much less coparcenary or joint family property. In the light of the express words used in the provision which clearly sets out the legislative intent, in particular sub-section (3) of Section 16, any attempt on the part of the Courts to expand the scope of the said provision, and confer rights on such child in coparcenary or joint family property amounts to re-legislating on the subject, under the guise of interpretation, against the will of the Parliament clearly expressed in the enactment itself. It is impermissible". Further it was held at paragraph 26 as under:- "26. The said right is confined to only co-parcenary property and joint family property. The said right is not extended even in hindu Law to the separate or self acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said right is confined to only co-parcenary property and joint family property. The said right is not extended even in hindu Law to the separate or self acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, intestate succession among Hindus. The word "intestate" has been defined under Section 3 (g) meaning, a person is deemed to die in the state in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is up held, then his natural heirs have no right to succeed or to inherit the said property. 27. Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act. Therefore, it is clear that in respect of a co-parcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession. 28. It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying intestate shall devolve according to the provisions of the Succession Act. Therefore, under the Succession act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying intestate devolves by succession only. 29. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying intestate devolves by succession only. 29. If a legitimate son cannot file a suit claiming share in respect of his father's property, by virtue of Section 8 of the succession Act, the illegitimate son who has now been conferred the status of a legitimate son also has no right to claim a share in the father's property by filing a suit. In other words, during the lifetime of a father, a son, legitimate or illegitimate has no right to seek a share in father's property. Their right arises only after such person dying intestate". ( 10. ) THE said statement of law clearly answers the substantial questions of law raised in this appeal. When the two Courts have concurrently held that the fourth defendant is the second wife and her marriage is void, defendants 2 and 3 are the illegitimate son born out of the said wedlock. By virtue of sub-sections (1) and (2) of Section 16 of the Hindu Marriage act they have been given equal status as that of a legitimate son. However, section 16 (3) makes it clear these illegitimate children will have a right only in the properties of the parents and none else. Thus conferring on the status did not affect the rights of the parties other than the parents in the property. Plaintiffs 1 and 2 being the legitimate sons of the first defendant they constitute a coparcenary. The suit schedule properties are co-parcenary properties. They acquired title to the property by birth. Therefore, each co-parcener has a right to maintain a suit for partition against the other co-parcener. Therefore, the suit filed by the plaintiffs 1 and 2 against their father, a co-parcener is maintainable and each one of them is entitled to l/3rd share in all the suit schedule properties. Defendants 2 and 3 are not entitled to a share in the said coparcenary by birth. When in a partition when l/3rd share is allotted to their father-first defendant, it becomes his separate property. In the said property they would have equal right as that of the legitimate sons and that right they get it ftfter first defendant dying in the state. When in a partition when l/3rd share is allotted to their father-first defendant, it becomes his separate property. In the said property they would have equal right as that of the legitimate sons and that right they get it ftfter first defendant dying in the state. During his lifetime they have no right to the said property and, therefore, the lower Appellate Court committed a serious error in elevating the status of the illegitimate son and to that of co-parcener and awarding a share in a suit filed by one co-parcener against another coparcener. The said finding is ex facie illegal and requires to be quashed. Even' in the shares which is allotted to the first defendant defendants 2 and 3 cannot be allotted a share during his lifetime. They have to work out their rights in the coparcenary property which is allotted to the first defendant on his death and in that property they would have equal share along with the legitimate sons, i. e. , plaintiffs 2 and 3 as well as third plaintiff who is the legally wedded wife of the first defendant. In that view of the matter, I pass the following order:- (i) Second appeal is allowed. (ii) It is hereby declared that plaintiff Nos. 1,2 and defendant no. 1 each one of them are entitled to l/3rd share in all the suit schedule properties. (iii) The claim of the third plaintiff is rejected as well as the claim of defendants 2 to 4 to any share in the said property. (iv) Ordered accordingly.