1. Heard both sides finally at the admission stage with their consent.

2. The petitioners are challenging order of rejection of their Application preferred under Order I Rule 10 of Civil Procedure Code in R.C.S. No. 1 of 2021 which is pending before Civil Judge, Junior Division, Panhala, Dist. Kolhapur.

3. The respondent Nos.1 and 2 are the original plaintiffs and the respondent No.3 to 6 are defendants in the Suit in R.C.S. No.1 of 2021 filed for the relief of partition and possession. The petitioners claim to be the children born out of wedlock of respondent No.3 - Ananda with Latabai, which was a second marriage. The respondent No.4 - Indubai happened to be the first legally wedded wife whose marriage was subsisting when another marriage was contracted. The respondent Nos.1 and 2 are the daughters born out of wedlock of respondent Nos.3 and 4.

4. The following genealogy is necessary to appreciate the rival claims of the parties.

                  

5. The petitioners preferred Application Exh.20 to implead them as party respondent. The respondent Nos. 1 and 2 contested the Application. By order dated 13.12.2021 the Application was rejected holding that they are not necessary or proper parties to decide the controversy involved in the matter.

6. Learned counsel for the petitioners submits that petitioners are the children of a void marriage and in view of pronouncement of the Supreme Court in case of Revanasiddappa and Anr. Vs. Mallikarjun and Ors. (2023) 10 SCC 1, they are entitled to have a share in their parents property. It is submitted that the petitioners may not be entitled to claim the partition but in case of partition at the instance of respondent – plaintiffs, their father will get a share and they are entitled to claim share in it. It is submitted that prejudice is likely to be caused if the suit is decided without impleading them and if the suit is not diligently contested by the respondent No.3 – Ananda. It is further submitted that the written statement of the respondent Nos. 3, 5 and 6 would also indicate that petitioners have interest and they are necessary parties.

7. Per contra, learned counsel Mr. Mahajan, appearing for the respondent Nos. 1 submits that the petitioners have no legally enforceable right and the decision of the Supreme Court in Revansaiddappa would not enure to their benefit due to peculiar facts of the case. It is submitted that the plaintiffs are the coparcener and entitled to claim the partition. But the intervenors, can get no share in it. It is submitted that even if a share is allotable to respondent No.3 – Ananda, it would be his separate property and during his lifetime the petitioners can have no claim in it. It is submitted that Application Exh.20 is very vague and if it is allowed that will cause prejudice to the plaintiffs and protract the litigation.

8. Learned counsel has placed reliance on the judgment of the Supreme Court in case of Revanasiddappa and Anr. Vs. Mallikarjun and Ors. reported in (2011) 11 SSC 1 as well as the judgment in the reference answered by larger Bench in case of Revanasiddappa and Anr. (2023) 10 SCC 1 (supra).

9. Having considered rival submissions of the parties there appears to be no dispute for relationships inter se between the parties. The respondent Nos. 1 and 2 have referred suit for partition and possession in respect of agricultural lands contending that the suit property is ancestral property inherited from Bapu and there was no partition. The respondent No.3, 5 and 6 have filed written statement and specifically raised plea that petitioners are the issues born out of wedlock of Ananda with Latabai and the circumstances in which the second marriage was contracted. They are stated to be necessary parties. It is additionally pleaded that there was already partition in the year 1998 during the lifetime of Bapu, which was effected by meats and bounds and suit is liable to be dismissed.

10. The learned counsel for the respondents has referred to judgment of the Division Bench in Revanasiddappa and Anr.(2011) 11 SSC 1 (Supra) and my attention is adverted to paragraph No.38 which is as follows.

                   “38. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.”

11. The reservation expressed by the Division Bench while referring the issue is stated to be the foundation for challenging the status of the petitioners in the present suit. It is tried to be impressed upon me that petitioners being children born out of void marriage are not entitled to claim partition and they can have some right only after death of their Ananda. Learned counsel further adverted my attention to the judgment passed by the larger Bench in Revanasiddappa and Anr. (2023) 10 SCC 1 (supra). The following issues were referred to the Bench.

                   “(1) First, whether the legislative intent is to confer legitimacy on a child covered by Section 16 in a manner that makes them coparceners, and thus entitled to initiate or get a share in the partition actual or notional;

                   (2) Second, at what point does a specific property transition into becoming the property of the parent. For, it is solely within such property that children endowed with legislative legitimacy hold entitlement, in accordance with Section 16(3).”

12. Those issues are ultimately answered in paragraph No.81.1 to 81.10. It is submitted that 81.3 is the relevant, which is as follows.

                   “81.3 While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person.”

13. I have considered the reservation expressed by the Division Bench in paragraph no.38 in case of Revanasiddappa and Anr.(2011) 11 SSC 1 (Supra). If the parent of the petitioners colludes with other contesting parties in order to deprive them from their legitimate claim, then prejudice will be caused to them. It is necessary to take into account the ratio laid down in paragraph nos. 81.8 to 81.10 of the Full Bench. There is no harm in hearing the petitioners by impleading them.

14. In the present case, the respondent Nos. 1 and 2 are the daughters and after the amendment to Section 6 of the Hindu Succession Act they are said to be the coparceners having birthright as well as entitled to claim partition. It is common knowledge that in a suit for partition all parties have a status of plaintiff. Their shares will be determined by the Court. The defense of the respondents is two folds that there was a partition in 1998 and another which is relevant for consideration is that the suit is bad for non joinder of necessary parties i.e. present petitioners. If suit succeeds, respondent No. 3 – Ananda will get some share in the property. It will be his separate property. The petitioners who are the children of void marriage will have interest in the share allotable to respondent No.3 - Ananda.

15. Learned counsel Mr. Mahajan relies on the judgment in the matter of Balkrishna Pandurang Halde Vs. Yeshodabai Balkrishna Halde reported in (2018) 6 BCR 388 rendered by learned Single Judge of our High Court in second appeal arising out of the suit filed by the respondent Nos. 1 to 3 therein for partition against the appellants. The appellant No. 2 was the second wife and appellant Nos. 3 and 4 are children born out of void marriage. Though it was judgment prior to the Supreme Court’s judgment in the matter of Revanasiddappa and Anr. (2023) 10 SCC 1 (supra), the principles laid down in paragraph Nos. 33 and 35 would be in consonance with ratio of Revanasiddappa. Learned counsel has emphasized on a legal position that children of a void marriage cannot be given any share till their parents are alive. It is relevant to notice that appellant Nos. 3 and 4, children of void marriage were party and had contested the matter in the Courts below as well as High Court. After full fledged trial the decisions were rendered.

16. Further reliance is placed on the judgment of this Court in the matter of Vasant Ramchandra @ Chander Yelvande Vs. Gurudas Vasantrao Yelvande reported in 2018(3) AIR Bom. R. 730. The writ petition was arising out of rejection of application preferred U/O VII Rule 11 of the Code of Civil Procedure. In that case also the plaintiff Nos. 1 and 2, who were children born out of void marriage were claiming partition. The Coordinate Bench allowed the petition resulting into rejection of plaint on the principles that during lifetime of the parents the plaintiff cannot claim partition. The clinching difference in the facts of the cited judgment and the case at hand is that the interveners are not claiming partition, rather they are claiming impleadment. Intervenors have every right to safeguard interest of their father – Ananda.

17. Further reliance is placed on the judgment of the learned Single Judge of the Karnataka High Court in the matter of Shri Kenchegowda Vs. K. B. Krishnappa and others reported in (2008) 4 Kar. 267. In that case also child of a void marriage had filed suit for partition, which was decreed by the Trial Court. The Appellate Court allowed the appeal. Ultimately High Court dismissed the second appeal. This judgment will not enure to the benefit of the respondents for two reasons. First, the judgments were rendered after full fledged trial in which child of a void marriage was permitted to prosecute matter. Second, suit was filed for partition by child of a void marriage, which is not the fact in a case at hand. The judgment will be of no avail to the respondents.

18. In any case, even if the submissions of the respondents are accepted which is founded on a reservation expressed by the Division Bench in a referral judgment of Revanasiddappa recorded in paragraph no.38 of the judgment, it is not the case of the intervenors that they want to claim partition in the suit property. Their father respondent No.3 – Ananda is likely to get some share in which they will have a interest or the share. The triable and contentious issues have been involved in the matter. The petitioners have a semblance of exercisable right and interest in the property which cannot be shunted by rejecting their application. A full fledged objective scrutiny is required during the course of trial. In the reported judgment cited by the respondents, such an opportunity was given to the persons who were born out of void marriage.

19. The petitioners have a arguable case in the present scenario. Respondent No.3 – Ananda is supporting the petitioners and stating that they are necessary parties. It cannot be said that intervenors are not concerned with the rival claims of the parties or the subject matter. If the respondent No. 3 dies intestate and share is allotted to him in partition, then either the petitioners will have to claim the share in the separate property of father. This multiplicity can be avoided by impleading them in the present suit. They have every right to safeguard interest of the respondent No. 3.

20. The trial Judge has committed error of jurisdiction in rejecting the Application, Exh.20. It is also in violation of principles of natural justice. There is no reason to infer that the matter is likely to be protracted if the petitioners are permitted to participate in the proceedings. The real controversy and rights of the parties can be determined in the wake of law laid down by Full Bench in Revanasiddhappa’s case. I am unable to accept the submission that prejudice would be caused to the respondent - plaintiffs if Application Exh.20 is allowed.

21. For the reasons stated above, I find that interference in the impugned order is necessary. I, therefore, pass following order

O R D E R

(i) Writ Petition is allowed partly.

(ii) The order dated 13.12.2021 passed below Exh.20 by the Civil Judge Junior Division, Panhala in R.C.S. No. 1 of 2021 is quashed and set aside and Application Exh.20 shall stand allowed.

(iii) It would be open for the parties to submit additional pleadings in the matter after the impleadment of the petitioners. There shall be no order as to costs.