JUDGMENT : RAJANI DUBEY, J. 1. The present appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred against the judgment and decree dated 30.09.2022 passed by the learned Judge, Family Court, Surajpur, District Surajpur (C.G.) in Civil Suit No. 30A/2020. 2. Vide the judgment impugned, the Family Court has dismissed the application filed under Section 34 of Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’) filed by the plaintiff/appellant for declaration of son of the defendants/respondents holding it to be barred by limitation and rights and declaration of property rights being not within the purview of matrimonial party, was held to be not maintainable. 3. Brief facts of the case are that the plaintiff filed a civil suit for declaration of son of defendants and for declaration of property rights on the ground that he resided with his mother/defendant No. 2 and was born on 12.11.1995 out of the marital relationship of defendant Nos. 01 and 02. It was averred that the defendant No. 01 has ancestral property in village Umeshpur, where the defendant No. 2 was his neighbor. There was a love affair of defendant No. 01 with defendant No. 02 & had physical relations with her on the pretext of marriage. Due to the said relationship, defendant No. 02 became pregnant and when defendant No. 2 refused to abort the pregnancy, defendant No. 1 ended relation with defendant No. 2. Thereafter, defendant No. 2 lodged a complaint in police station Surajpur, on which FIR for offence under Section 376 of IPC was registered. After registration of FIR, the defendant No. 1 sharply refused to marry with defendant No. 2 and on 12.11.1995 the plaintiff was born. After being separated from the society on account of becoming a mother before marriage, the defendant No. 02 did not have any source of income, therefore, defendant No. 02 along with plaintiff jointly filed a case of maintenance against defendant No. 01 under Section 125 Cr.P.C. before Family Court, Surajpur. It has also been averred that the name of the defendant No. 01 was recorded as proof in all the official and non-government documents of the plaintiff being his father, however, the defendant No. 1 denied the status of his father. It has also been averred that the name of the defendant No. 01 was recorded as proof in all the official and non-government documents of the plaintiff being his father, however, the defendant No. 1 denied the status of his father. The cause of action arose in the month of April, 2017, when the plaintiff fell ill and due to financial crisis, he went to the house of defendant No. 01 and sought financial assistance for treatment, but defendant No. 1 refused to accept the plaintiff as his son. 4. The defendant No. 01 was declared ex-parte due to refusal to take notice and no written was filed by him. The defendant No. 02, who is the mother of the plaintiff, admitted the plaint averments and did not deny any fact. 5. The Family Court, after appreciating the oral and documentary evidence, dismissed the application of the plaintiff holding that the suit is barred by limitation and declaration of property rights being not within the purview of matrimonial party, held to be not maintainable. 6. Learned counsel for the appellant referring to Section 7(e) of the Family Court Act would submit that the Family Court has jurisdiction to declare legitimacy of any person and to further declare the entitlement of the rights of the child over the property of his father but it has wrongly held that the no jurisdiction is vested with Family Court to declare the paternity of the child and wrongly held that the suit was barred by limitation. As regards limitation, it has been submitted by learned counsel that the suit was earlier filed before the regular Civil Court on 25.02.2017 but on account of establishment of Family Court the matter was referred to the Family Court returning the plaint on 03.02.2020 to the plaintiff, as such, it cannot be held that the suit was barred by limitation and there is no fault on the part of the appellant/plaintiff. Learned counsel also submits that Hon’ble Supreme Court in catena of decision held that the suit cannot be dismissed on account of misjoinder of party and the plaintiff cannot be deprived of justice, as such, it is incumbent upon the Court to get the mistake rectified directing the plaintiff to make the correction. Thus, the impugned judgment and decree passed by the learned Family Court is liable to be dismissed. Thus, the impugned judgment and decree passed by the learned Family Court is liable to be dismissed. Learned counsel for appellant placed reliance on the decision of Supreme Court in the matter of Union of India vs. V.R. Tripathi, (2019) 14 SCC 646 , Revanasiddappa and Another vs. Mallikarjun and Others, (2011) 11 SCC 1 and Bharatha Matha and Another vs. R. Vijaya Renganathan and Others, (2010) 4 AIR SCW 3503. 7. On the other hand, learned counsel for respondent No. 1 supporting the impugned judgment submits that the plaintiff has completely failed to prove the marriage of defendants. Learned counsel further submits that the suit ought to have been filed on or before the 12.11.2016 but the same has been filed in the year 2017, as such the suit is barred by limitation and the Family Court has rightly dismissed the suit of the plaintiff on the ground of limitation. There is no infirmity or illegality in the judgment impugned and the appeal being without any merit is liable to be dismissed. 8. We have heard learned counsel for the parties at length and perused the material on record. 9. It is apparent from the record of the learned Family Court that the appellant/plaintiff filed a suit under Section 34 of the Specific Relief Act for declaration of defendant No. 1 as his biological father and for declaration of full title and rights over the entire ancestral property of the defendant No. 1. It is also apparent that the learned Family Court recorded its finding that the appellant/plaintiff is son of defendant No. 1 and 2 & declared the plaintiff as illegitimate child of defendant No. 1, however, the suit of the plaintiff was dismissed on the ground of limitation. 10. The learned Family Court recorded its finding that the date of birth of plaintiff was 12.11.1995 and he attained majority on 12.11.2013, as such, the plaintiff should have filed the suit within a period of three years of attaining majority i.e. before 12.11.2016 but he filed the suit on 16.03.2020 i.e. after six years of his majority, therefore, the suit was declared time barred. 11. Before the learned Family Court, the defendant No. 1 remained ex-parte on account of refused to take notice and no written statement was filed by him. The defendant No. 2, who is mother of plaintiff had duly admitted the plaint averments. 11. Before the learned Family Court, the defendant No. 1 remained ex-parte on account of refused to take notice and no written statement was filed by him. The defendant No. 2, who is mother of plaintiff had duly admitted the plaint averments. The learned Family after appreciating the oral and documentary evidence, decided the Issue No. 1 in favour of plaintiff and recorded its finding that the plaintiff is son of defendant Nos.1 and 2, however, it declared the plaintiff as ‘illegitimate child’ of defendant No. 1 and the suit was declared time barred. 12. As regards the issue of ‘illegitimate child’ it is well settled that a child, who is born out of a void marriage, cannot be termed as ‘illegitimate’. Section 16 of the Hindu Marriage Act, 1955 deals with the question of legitimacy of void and voidable marriages and is being reproduced herein-below: “16. Legitimacy of children of void and voidable marriages: (1) Notwithstanding that 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 (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) 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 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.” 13. The Supreme Court in the matter of Revanasiddappa (supra) held in Para 22 as under: 22. The amendment to Section 16 has been introduced and was brought about with the obvious purpose of removing the stigma of illegitimacy on children born in void or voidable marriage (hereinafter “such children”). 14. Further, in Para 45, it was held as under: “45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self-acquired or ancestral.” 15. Further, Supreme Court in the case of V.R. Tripathi (supra), has considered and discussed the entire law on the point. Relevant extract of the said judgment is reproduced below: “16. In sub-section (1) of Section 16, the legislature has stipulated that a child born from a marriage which is null and void under Section 11 is legitimate, regardless of whether the birth has taken place before or after the commencement of Amending Act 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the legislature has stepped in by enacting Section 16 (1) to protect the legitimacy of a child born from such a marriage. Sub-Section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents.” 16. Sub-Section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents.” 16. In view of the aforesaid legal position, the finding recorded by the learned Family Court with regard to plaintiff as ‘illegitimate child’ is not sustainable in law and the plaintiff cannot be termed to be as ‘illegitimate child’. 17. The learned Family Court has further recorded the finding that the plaintiff had wrongly arrayed defendant No. 2 as party and it was held that where there is misjoinder of parties and plaintiff himself has collusion with defendant, in such circumstances, the claim is not maintainable/acceptable. 18. In this regard, Order 1 Rule 1 of the CPC provides that all persons can be joined as plaintiffs where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons whether jointly or severelly and if such persons brought separate suits and any common question of law or fact would arise. In face of these provisions there would obviously be a definite doubt as to the very maintainability of the suit. The plaintiff and defendant No. 2 are son and mother respectively, but they have a common cause of action. This Court is not concerned with the merits of the claim, but to dismiss the suit as not maintainable, is the finding of the Court which is not in consonance with the provisions of the Code. Furthermore, the provisions of Order 1 Rule 9 of the Code clearly states that no suit shall be defeated or dismissed by reason of misjoinder or non-joinder of parties and the Court would deal with the parties actually before it. The only exception carved out is where a party is not joined which is a necessary party. The general rule is that the suit cannot be dismissed on the ground of non-joinder of proper parties. 19. In this case, it is clear from the pleading that the plaintiff’s claim is that is he son of defendant Nos. The only exception carved out is where a party is not joined which is a necessary party. The general rule is that the suit cannot be dismissed on the ground of non-joinder of proper parties. 19. In this case, it is clear from the pleading that the plaintiff’s claim is that is he son of defendant Nos. 1 and 2 & defendant No. 2 admitted this fact that defendant No. 1 is father of plaintiff, which stood un-rebutted, as such, finding recorded with regard to issue No. 3 is also not according to facts and circumstances of the case and according to law. 20. As regards limitation, it is apparent that plaintiff had filed the suit against his biological father (defendant No. 1) for declaration of his right and title over ancestral property & for this relief no limitation is prescribed in the Limitation Act and this relief is always available to the children whenever his right and title are denied. As such, finding recorded by the learned Family Court with regard to limitation period in Para 16 and 17 being perverse and not in accordance with law is liable to be set aside. 21. In the view of the aforesaid discussion and legal proposition, the appeal is allowed. The impugned judgment and decree dated 30.09.2022 is set aside. The plaintiff is declared legitimate son of defendant Nos. 1 and 2 & he shall be entitled for all the benefits being the legitimate child. 22. Let a decree be drawn accordingly. 23. There shall be no order as to costs.