JUDGMENT H.N. NAGAMOHAN DAS, J.—This second appeal is directed against the judgment and decree dated 26.10.2004 in R.A. No. 116/1997 passed by the Prl. Civil Judge (Sr. Dn.), at Kolar. 2. Appellant is the plaintiff and respondents are the defendants before the trial Court. In this judgment, for convenience, the parties are referred to their status before the trial Court. 3. Plaintiff contends that common propositor Seenappa had two wives by name Lakshmamma and Mangamma. The propositor Seenappa died in the year 1973 and the plaint schedule properties are his ancestral properties. Propositor had a son by name Sriranga (Defendant No. 1) and a daughter by name Beeramma (Defendant No. 3) through his first wife Lakshmamma. Through the second wife Mangamma (Plaintiff No. 2), the propositor had tow sons by name Sriramappa (Defendant No. 2) and Lakshmana (Plaintiff No. 1). The propositor Seenappa died in the year 1973. The first wife Lakshmamma also died in the year 1992. Thereafter, the second wife Mangamma and her younger son Lakshmana (Plaintiff Nos. 1 and 2) demanded for partition and separate possession of their share in the plain schedule properties. Since the defendants refused to partition the plaint schedule properties, the plaintiffs filed O.S. No. 13/1994. 4. The defendants entered appearance before the trial Court and filed written statement inter alia contending that the first plaintiff is not the wife of the propositor Seenappa and second plaintiff is not the son. It is contended that there is no relationship between the plaintiff and the first defendant. The suit schedule properties are not the joint family properties. Alternatively, it is contended that already a partition had taken place between the plaintiffs and defendants and as such, question of re-opening the partition will not arise. On these grounds, the first defendant opposed the claim of the plaintiffs. The defendants 2 and 3 have not contested the proceedings. 5. On the basis of the pleadings, the trial Court framed the following issues for its consideration: (i) Whether the plaintiffs proves their relationship with the defendants of this case? (ii) Whether the plaintiff prove that the suit schedule properties are the joint family properties of themselves and defendants of this case? (iii) Whether the defendant No. 1 prove the partition between the plaintiffs and 2nd defendants as alleged? (iv) Whether the plaintiffs are entitled for partition and separate possession of the suit properties? (ii) Whether the plaintiff prove that the suit schedule properties are the joint family properties of themselves and defendants of this case? (iii) Whether the defendant No. 1 prove the partition between the plaintiffs and 2nd defendants as alleged? (iv) Whether the plaintiffs are entitled for partition and separate possession of the suit properties? If so, what are the share of the parties to the suit? (v) What decree or order? 6. During the pendency of the suit, first plaintiff died and her legal representative were already on record. Before the trial Court, plaintiff examined two witnesses as P.Ws. 1 and 2 and got marked Exts. P1 to P3. The defendants examined there witnesses as DWs-1 to 3 and got marked Exts. D1 to D3. On appreciation of the pleadings, oral and documentary evidence, the trial Court partly decreed the suit holding that plaintiffs and defendants constitute joint family and the plaint schedule properties are liable for division. Accordingly, the trial Court passed a preliminary decree declaring that plaintiff is entitled for l/5th share in the plaint schedule properties. Aggrieved by this judgment and decree of the trial Court, the first defendant filed an appeal in R.A. No. 116/1997. The first Appellate Court after hearing arguments framed the following points for its consideration: (i) Whether the plaintiffs have established the relationship pleaded by them? (ii) Whether the plaintiffs are entitled for l/5th share as declared by trial Court? (iii) Whether judgment and decree of the trial Court is illegal, in view of the materials on record? (iv) What order? 7. The first appellate Court on re-appreciation of the entire material on record held that the deceased second plaintiff is the second wife of propositor Seenappa and the same is a void marriage. First plaintiff and second defendant are the children born out of a void marriage and as such, they are illegitimate children. The illegitimate children are not entitled for a share in the ancestral property of common propositor. Accordingly, the first Appellate Court partly allowed the appeal and modified the judgment and decree of the trial Court holding that the first plaintiff is entitled for 1/10th share in the plaint schedule properties and the second plaintiff is not entitled for any share. Hence, this second appeal. 8. Accordingly, the first Appellate Court partly allowed the appeal and modified the judgment and decree of the trial Court holding that the first plaintiff is entitled for 1/10th share in the plaint schedule properties and the second plaintiff is not entitled for any share. Hence, this second appeal. 8. This Court by order dated 11.4.2005 admitted the appeal on the following substantial question of law: Whether the finding of the first appellate Court modifying the judgment and decree passed by the trial Court and holding that plaintiff is entitled to l/10th share in ‘A’ schedule property is contrary to law and material on record? 9. On 26.5.2011, the matter was heard in part and today I heard in full and perused the entire appeal papers. 10. The trial Court held that the relationship between the parties has been proved. The contesting defendant No. 1 has not filed any appeal against the finding of the trial Court on the question of relationship and as such, the same had become final and binding on him. So also, both the Courts have held that plaint schedule properties are the ancestral property of common propositor Seenappa and contesting first defendant has not questioned the same. 11. Before the trial Court, first defendant in his written statement has totally denied the relationship of plaintiff Nos. 1 and 2 with common propositor Seenappa. It is not the case of the first defendant that common propositor Seenappa married the second plaintiff after 1956 and that the same was a void marriage. Consequently, the trial Court has not framed any issue relating to void marriage of second plaintiff and illegitimacy of plaintiff No. 1 and defendant No. 2. For the first time, the first appellate Court during the course of judgment has taken up this issue relating to void marriage of second plaintiff and illegitimacy of plaintiff No. 1 and defendant No. 2 and gave a finding to that effect. The approach of the first appellate Court is bad in law. 12. P.W. 2 is defendant No. 3 in the suit. Admittedly, P.W. 2 is the daughter of propositor Seenappa through his first wife Lakshmamma. P.W. 2 was aged about 64 years when she deposed before the trial Court on 24.1.1997. P.W. 2 in her cross-examination deposed that common propositor Seenappa married second plaintiff even prior to her birth. 12. P.W. 2 is defendant No. 3 in the suit. Admittedly, P.W. 2 is the daughter of propositor Seenappa through his first wife Lakshmamma. P.W. 2 was aged about 64 years when she deposed before the trial Court on 24.1.1997. P.W. 2 in her cross-examination deposed that common propositor Seenappa married second plaintiff even prior to her birth. If this evidence of P.W. 2 is taken into account, it necessarily implies that common propositor married the second plaintiff prior to 1956. Further, DW-1 in his evidence has not deposed that common Seenappa married second plaintiff after 1956. In the absence of any positive pleading and evidence on record and in the light of the evidence of P.W. 2, the reasoning of the first Appellate Court that the second plaintiff’s marriage is void is contrary to evidence and law. When the marriage between propositor Seenappa and second plaintiff is not void, then the children born out of that wedlock are not illegitimate children. Therefore, the reasoning of the first appellate Court is contrary to law and admitted facts on record. 13. Learned counsel for the first defendant relying on two judgments of the Supreme Court reported in (2003) 1 SCC 730 , Jinia Keotin and others vs. Kumar Sitaram Manjhi and others; and (2006) 9 SCC 612 , Neelamma and others vs. Sarojamma and others contend that illegitimate children are not entitled to claim as of a right a share in the joint family property. Firstly, plaintiff No. 1 and defendant No. 2 are not illegitimate children as stated above and, therefore, the law laid down in the decision referred to supra is not applicable to the facts on hand. 14. Admittedly, the plaint schedule properties are the ancestral properties. The common propositor Seenappa had three sons, i.e., plaintiff No. 1, defendant No. 1 and defendant No. 2. On a notional partition, Seenappa and his three sons will get 25/100th share each. On the demise of propositor Seenappa, his share of 25/ 100th is to be sub-divided among his two wives and children. Both the wives together will take one share, i.e., 5/20. Plaintiff and defendant Nos. 1 to 3 will take 5/20 each. On the demise of first wife Lakshmamma, her share is to be divided among defendant Nos. 1 and 3 equally. Both the wives together will take one share, i.e., 5/20. Plaintiff and defendant Nos. 1 to 3 will take 5/20 each. On the demise of first wife Lakshmamma, her share is to be divided among defendant Nos. 1 and 3 equally. On the demise of second wife Mangamma, her share is to be divided among her two children, i.e., plaintiff No. 1 and defendant No. 2. As per this apportionment, plaintiff No. 1, defendant No. 1 and defendant No. 2 are entitled for 31.25/100th share each. Defendant No. 3 is entitled for 6.25/100th share. To this extent, the impugned judgment and decree requires modification. 15. For the reasons stated above, the question of law framed above are answered in ‘Affirmative’ and accordingly, I pass the following: ORDER (i) The appeal is hereby allowed. (ii) The impugned judgment of the first appellate Court in R.A. No. 116/1997 dated 26.4.2004 is hereby set aside. (iii) The judgment and decree of the trial Court in O.S. No. 13/1994 is hereby modified declaring that plaintiff No. 1, defendant No. 1 and defendant No. 2 are entitled for 31.25/100th share each. Defendant No. 3 is entitled for 6.25/100th share. (iv) Ordered accordingly.