Judgment : Narendra Kumar Vyas, J. 1. This is defendants’ Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 7-5-2011 passed by the learned Second Additional District Judge, Rajnandgaon in Civil Appeal No. 08-A/2011 whereby learned Second Additional District Judge has dismissed the appeal and affirmed the judgment and decree dated 19-3-2010 passed by 2 nd Civil Judge, Class-1, Rajnandgaon in Civil Suit No 36-A/2008 by which the learned trial Court has decreed the suit filed by the plaintiff. 2. This appeal was admitted by this Court on 30-08-2012 on the following substantial question of law:- “Whether appellants No. 2 & 3 ie., Jai Prakash and Lekhchand would become coparceners entitle for share in the coparcenary property in view of the amended provisions of Section 6 of the Hindu Marriage Act, 1956?” 3. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the Civil Suit No. 36-A/2008 before the trial Court. 4. Brief facts reflected from the plaint averments are that; A. The plaintiffs filed a suit before learned Civil Judge Class-1, Rajnandgaon on 22.02.2003 for partition and declaration of sale deed executed by the defendant No.1 in favour of defendant No.2 as null and void and binding upon the plaintiff mainly contended that the defendant No.1 is the title holder of the suit property described in Schedule A & B of the plaint. It is also case of the plaintiffs that Ghanaram and Hukum Chand were coparceners in the property situated at village Belargondi and Ghanaram had no sons, but three daughters namely Anasuya, Tagni and Shyam Kunwar were born from the wedlock of Ghanaram and his wife Ameera Bai. It is also the case of the plaintiffs that they were married and were living in their matrimonial house. Ghanaram’s brother Hukum Chand had six sons and eldest son was Muralidhar Verma and Ghanaram expired in the year 1922. After death of Ghanaram, his wife had adopted defendant No.1 Muralidhar as his adopted son. Accordingly, adoption deed was executed during the life time of Hukum Chand on 3-6-1944. B. It is also the case of the plaintiffs that Ameera Bai who is wife of Ghanaram has taken care of Muralidhar, she had also solemnized his marriage and after death of Ghanaram, defendant No.1 Muralidhar inherited the ancestral property. Accordingly, adoption deed was executed during the life time of Hukum Chand on 3-6-1944. B. It is also the case of the plaintiffs that Ameera Bai who is wife of Ghanaram has taken care of Muralidhar, she had also solemnized his marriage and after death of Ghanaram, defendant No.1 Muralidhar inherited the ancestral property. It is also case of the plaintiffs that the property of suit land situated at village Belargondi was in the joint name of Ghanaram and Hukumchand wherein proceeding under Ceiling Act was initiated and in that case defendant No.1 Muralidhar has submitted reply along with affidavit wherein he has mentioned that he has two wives ie., first wife was Sulochana and second wife was Kunjbati. From the wedlock of Muralidhar and Sulochana two sons were born namely Nageshwar and Ramkrishna. It is also case of the plaintiffs that son of Muralidhar namely Nageshwar died in the year 1971 and plaintiff No.1 Bundabai is the widow of Nageshwar and plaintiff No.2 is son of late Nageshwar. During life time of Sulochana, defendant No.1 Muralidhar had kept defendant No.5 as his wife which is void ab initio, as such she cannot be recognized as legally wedded wife. C. It is also case of the plaintiff that Sulochana was murdered in the year 1976 and for that defendant No.1 was arrested and he was sentenced by the trial Court and subsequently he has been acquitted by the High Court. Since the defendant No.5 was not legally wedded wife, dispute arose between the family members, therefore, defendant No.1 expelled plaintiff No.1 & 2 from his house. Plaintiffs No. 1 and 2 are residing at Sevatapara, Dongargaon and plaintiff No.3 is also residing with them as there was nobody to look after him. It is also case of the plaintiffs that the defendant No.1 has recorded land bearing Khasra No. 527 area 13.37 acres in the name of defendant No.2 on account of family partition whereas defendant No.2 has no title over the suit property as the suit property is in the name of joint Hindu family and defendant No.2 is not legitimate child of defendant No.1. It is also case of the plaintiffs that after mutating the land measuring 13.37 acres, he is also making an attempt to transfer the inherit property in the name of defendant No.2, therefore, plaintiff sent a notice to him through her Advocate which has returned unserved. It is also case of the plaintiffs that the plaintiffs are coparceners with defendant No.1 in the suit land therefore, they are entitled to get 1/3rd share. 5. The defendants No. 1 to 5 have filed their written statement denying the allegations made in the plaint. It is contended that according to Hindu Succession Act,1956 (for short, “the Act, 1956”), daughters are not entitled to inherit the property and there is no partition taken place with regard to suit property and only to obtain the loan he has recorded the suit property in the name of defendant No.2. Defendants also filed counter claim alleging certain allegations against the plaintiff No.1. It is also denied that plaintiff No.2 is son of Nageshwar, therefore, he is not entitled to inherit the suit property. 6. On the pleadings of the parties, learned trial Court has framed as many as six issues and issue Nos. 1, 2, and 3 are relevant which are extracted below: 7. The plaintiffs to substantiate their case have exhibited documents (Ex/P1) carbon copy of notice, (Ex/2) postal receipt, (Ex.P/3), copy of paper publication, (Ex.P/4) closed envelop of notice, (ExP/5) copy of acknowledgment, (Ex.P/6) certified copy of Adhikar Abhilesh panji, (Ex.P/7) certified copy of Namantran Panji, and (Ex.P/8, to Ex.P.11) Khasra map, (Ex.P/12) re-renumbering parcha, (Exp/13) Khasra panchsaala Form P-11 (Ex.P/14 to Ex.P/17) ) Namantran Panji, (Ex.P/18), Form B-1 Kistbandi Katauni, (Ex.P/19,) Namantran Panji, (Ex.P/20 and 21) Form B-1 Kistband Katauni and (Ex.P/22) certified copy of affidavit and have examined Bundabai PW/1, Khushram (PW/2), Gharau (PW/3), Mohyan (PW/4) and Ghanshyam (PW/5). The defendants to substantiate have examined witnesses namely Murlidhar (DW/1), Gendlal (DW/2), Geetadas Vaishnav (DW/3), Bhagulla Verma but have not exhibited any document. 8. Plaintiff No.1 in her examination-in-chief by way of an affidavit has reiterated the stand taken by her in the plaint. This witness was cross examined by the defendant wherein in paragraph 17 she has admitted that Muralidhar received the land measuring 73.00 acres from his father and not from his mother. She has also admitted that Muralidhar was adopted son of Ghanaram and original father of Muralidhar is Hukumchand. This witness was cross examined by the defendant wherein in paragraph 17 she has admitted that Muralidhar received the land measuring 73.00 acres from his father and not from his mother. She has also admitted that Muralidhar was adopted son of Ghanaram and original father of Muralidhar is Hukumchand. She has also stated that from second wife of her in-law, there are three sons out of which one son expired. She has also admitted that Murlidhar has not given partition to any other son except the elder son. She has also admitted that all the defendants are living together, she has also stated that the decision which has been passed between the brothers of Murlidhar relates to 107 acres. She has also stated that according to this decision, she and Ramkrishna should also be given land in the partition. She has also stated that Murlidhar has been given 40 acres land on partition between the brothers and rest of 107 acres, 6 acres of land was given to the each of the brother and sister. She has also stated that she is claiming partition of 40 acres and in addition to it she is claiming partition of 73 acres. 9. DW/1 Murlidhar examined by way of affidavit wherein he has reiterated the stand taken by him in the written statement and has admitted that he has transferred the property of 13.37 acres of land in the name of Jaiprakash. He has voluntarily stated that for purchasing of Tractor, he has transferred the property. He has denied that the entire property was ancestral property and he voluntarily stated that being adopted son, he is the successor of the suit property and he has absolute right over it. He has also admitted that whatever property he is having, is obtained from Ghanaram and not from his real father. He has admitted that whatever the property he has received from Hukumchand, it has already been partitioned between his five brothers and not given to Murlidhar. He has also admitted that whatever property he has received on partition that was received by him from Ameera Bai and Ghanaram. 10. He has admitted that whatever the property he has received from Hukumchand, it has already been partitioned between his five brothers and not given to Murlidhar. He has also admitted that whatever property he has received on partition that was received by him from Ameera Bai and Ghanaram. 10. DW/2 Gendlal who has supported the case of the defendant has admitted in the cross examination that all the details with regard to the development in the family have been informed to him by second wife of Murlidhar ie., Kunjbati and also denied that Kunjbati and Murlidhar have expelled Bundabati from their house and has voluntarily stated that after death of Nageshwar she was residing at village Beloragondi with his parents. 11. Learned trial Court on the basis of evidence and material on record has decreed the suit vide judgment and decree dated 19-3-2010. Learned trial Court while deciding issue No.1 has recorded its finding that as per Section 6 of the Hindu Succession Act, 1956, son is entitled to get the ancestral property from his birth during the life time of his father and has recorded its finding that the suit property prescribed in Schedule A and B is joint Hindu family property and the plaintiff No. 2 Chintaharan is son of Nageshwar who is son of Muralidhar, as such plaintiff No. 1 and 2 constituted coparcenary and entitled to inherit the suit property. The learned trial Court has also recorded its finding that defendant No. 2 to 4 are sons of second wife during life time of legally wedded wife of defendant No. 1 Murlidhar, therefore, they have no right over the suit property. Accordingly, it has decreed the suit for partition by declaring the plaintiff No. 2 is entitled to get separate possession after partition of the the suit property and the defendants No. 2 to 4 have no right over the suit property. The trial Court has also declared the sale deed executed in favour of defendant No. 2 to 4 as null and void. 12. The trial Court has also declared the sale deed executed in favour of defendant No. 2 to 4 as null and void. 12. Being aggrieved with the judgment and decree passed by the learned trial Court, the defendant has preferred an appeal before the learned First Appellate Court and the learned First Appellate Court vide its judgment and decree dated 7-5-2011 has modified the decree to the extent that plaintiff No. and , 2 are entitled to inherit 2/3 rd of suit property jointly and defendant No. 3 is entitled to inherit 1/3 rd share of the suit property and accordingly dismissed the appeal filed by the defendant. The learned first appellate Court has also recorded its finding that defendant No. 2 to 4 were born with the void and voidable marriage of defendant No. 1 and Kunjbati, therefore, they could not constitute coparcenary and they are not entitled to inherit the suit property as it is ancestral property. The learned first appellate Court has also recorded its finding that the child born from the void and voidable marriage is entitled to share the self acquired property of his father only. Being aggrieved by the said judgment and decree, the defendants have filed this second appeal before this Court. 13. Learned counsel for the appellants/defendants would submit that the amendment in the Hindu Succession Act, 2005 has been made effective from 9-9-2005 whereas partition has already been taken place prior to, therefore, both the courts below have committed illegality in applying the Hindu Succession Act 1956 retrospectively and would pray for allowing the appeal. He would further submit that the illegitimate child is also entitled to inherit the ancestral property of his father. To substantiate his submission he has referred to the judgments of Hon'ble Supreme Court in the case of Revanasiddappa vs. Mallikarjun and Others reported in 2023 (10) SCC 1 , North Eastern Railway Administration vs. Bhagwan Das (D) By Lrs reported in AIR 2008 SC 2139 , and the judgment of MP High Court in the case of Smt. Gomati Devi vs. Ram Prasad Prabhudayal reported in AIR 1958 MP 6 . 14. Per contra, learned counsel for the respondents/plaintiffs supporting the impugned judgment and decree passed by both the courts below would submit that finding recorded by the learned trial Court does not suffer from perversity or illegality warranting any interference. 14. Per contra, learned counsel for the respondents/plaintiffs supporting the impugned judgment and decree passed by both the courts below would submit that finding recorded by the learned trial Court does not suffer from perversity or illegality warranting any interference. He would further submit that the substantial question of law framed by this Court deserves to be answered against the defendants and in favour of the plaintiffs. He would further submit that finding recorded by the trial Court is a concurrent finding of fact, therefore, finding of fact is not liable to be interfered by this Court while hearing the second appeal. To substantiate his submissions, he has referred to the judgments of Hon’ble Supreme Court in the case of State of Kerala vs. Mohd. Kunhi , reported in (2005) 10 SCC 139 , Madhavan Nair vs. Bhaskaran Pillai , reported in (2005) 10 SCC 553 , Harjeet vs. Amrik Singh , reported in (2005) 12 SCC 270 , Bharatha Matha & another vs. R. Vijaya Renganathan & others, reported in (2010 AIR SCW 3503) and would pray for dismissal of the appeal. 15. I have heard learned counsel for the parties, considered the rival submissions made herein-above and also gone through the records of both the courts below with utmost circumspection. 16. To appreciate the substantial question of law framed by this Court, it is expedient for this Court to extract Sections 6 & 8 of the Hindu Succession Act, 1956 as well as Section 16 of the Hindu Marriage Act1955 which are as under: “6. Devolution of interest in coparcenary property. — (1)On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—(a)by birth become a coparcener in her own right in the same manner as the son; (b)have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 . (2)Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition’ .(3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, — (a)the daughter is allotted the same share as is allotted to a son (b)the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c)the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4)After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect— (a)the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.(5)Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. 8. General rules of succession in the case of males.— The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—(a)firstly, upon the heirs, being the relatives specified in class I of the Schedule;(b)secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;(c)thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and(d)lastly, if there is no agnate, then upon the cognates of the deceased. Section 16 of the Hindu Marriage Act 1955 reads as under; 16. Section 16 of the Hindu Marriage Act 1955 reads as under; 16. Legitimacy of children of void and voidable marriages.-- (1) Notwithstanding that a marriage 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.” 17. From the evidence and material on record, it is quite vivid that the suit property is ancestral property and the plaintiff No.1 is the widow of Nageshwar Verma and Chitarharan Verma was son of Nageshwar Verma and Nageshwar Verma and Ramkrishna were sons of Muralidhar Verma. From the evidence and material on record, it is quite vivid that the suit property is ancestral property and the plaintiff No.1 is the widow of Nageshwar Verma and Chitarharan Verma was son of Nageshwar Verma and Nageshwar Verma and Ramkrishna were sons of Muralidhar Verma. The defendants No. 2 to 4 have not placed any material on record to prove that suit property was self acquired property of defendant No. 1, as such the plaintiffs are coparceners in the ancestral property in view of Section 6 of the Hindu Succession (Amendment) Act, 2005 The provisions of Section 6 of Hindu Succession (Amendment) Act, 2005 has come up for consideration before the Constitutional Bench of Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and others , reported in 2020 (9) SCC 1 wherein Hon’ble Supreme Court has held in para 137 as under. “137. . Resultantly, we answer the reference as under: (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly.” 18. Thus, the finding modified by the learned first appellate Court that each of the plaintiffs is entitled to get 1/3 rd share, is in accordance with law, on appreciation of evidence and does not suffer from perversity or illegality which warrants interference by this Court. 19. The further submission of the learned counsel for the appellants, the defendants No. 2 to 4 are entitled to get share in the suit property even if they were born from void and voidable marriage of defendant No. 1 is being considered by this Court. To appreciate this submission, it is expedient for this Court to refer the provisions of Section 16 of the Hindu Marriage Act, 1956 which provides that irrespective of void and voidable marriages the child born with their wedlock shall be legitimate, whether such child was 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 the Hindu Marriage Act, 1955 or whether the marriage is held to be void otherwise than on a petition under Hindu Marriage Act, 1955. Section 16(3) also provides that 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 parents. In the present case, the suit property is ancestral property and the appellants are only entitled to inherit the property of their parents only not the ancestral property. It is pertinent to mention here that defendants No. 2 to 4 are unable to place on record that suit property is self acquired property of the defendant No. 1. The provisions of Section 16 of the Hindu Marriage Act, 1955 has come up for consideration before the Hon’ble Supreme Court in case of Ravanasidappa and another vs. Mallikarjun and others, reported in 2023 (10) SCC 1 has held in npara 79, 80, 81 and 81.4 as under “ 79. From the above observations it appears that the Court has recognised that while conferring legitimacy in terms of sub-section (1) or sub-section (2) of Section 16 to children born from void or voidable marriages, Parliament has circumscribed the entitlement to the property of such children by observing that nothing contained in those provisions shall be construed as conferring a right in or to the property of any person other than the parents. Having noticed this, the Court has also observed that in the case of joint family property such children will be entitled only to a share in their parent’s property but cannot claim it of their own right as a consequence of which they cannot seek partition during the life-time of their parents. However, the Court has also observed that once such children are declared as legitimate, they will be at par with other legitimate children. The observation in paragraph 29 of the referring judgment that a child who is conferred with legitimacy under sub-section (1) and sub-section (2) of Section 16 will be on par with other legitimate children is in the context of recognising the entitlements of such a child in the property of their parents and not qua the property of a third person. 80. 80. The rationale in the referring order cannot be held as treating individuals who have been conferred with 50 Para 38 page 11 PART K legitimacy in terms of either of the two sub-sections of Section 16 to be entitled to full rights in property at par with children who are born from a valid marriage. Section 16(3) has expressly stipulated that the rights of such a child who is conferred with legitimacy by sub-section (1) or sub-section (2) of Section 16 would be in respect of the property of the parents and not of any other person. 81. We now formulate our conclusions in the following terms:(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; (ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;\\ (iii) 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; (iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes o f Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso” 20. From the above stated facts and considering the well settled position of law, it is quite vivid that the defendants No. 2 to 4 were born from the wedlock of void or voidable marriage, therefore, they are entitled to inherit the property of their parents only, not the ancestral property, therefore, both the Courts below have not committed any illegality in recording its finding that the defendant No. 2 to 4 were born from the wedlock of void and voidable marriage and entitled to get share from their parents property not from the ancestral property. This finding is based upon appreciation of evidence, law and material on record, as such it does not suffer from perversity and illegality warranting any interference by this Court. Thus, the substantial question of law framed by this Court deserves to be answered against the defendants/appellants and in favour of the plaintiffs/respondents. 21. The appellants have also filed an application under Order 41 Rule 27 CPC for taking additional documents on record to substantiate that the suit property is individual property by contending that the judgment and decree passed by the High Court where kept in cattle shed and after search only it has been found therefore, the same has been filed before this Court. From bare perusal of the document it is quite vivid that the appellants have filed will of Ameera Bai and also sale deed of 56.61 acres for sale consideration of Rs. 57. Since by these documents the defendant intends to bring new case claiming title on the basis of alleged will as well sale deed whereas no such pleading to this effect was made, therefore, the documents are not relevant with the pleadings made by the defendants before the trial Court and if this document is taken on record a new case will be made out which is not permissible in view of the provisions of Order 41 Rule 27 of CPC. The provisions of Order 41 Rule 27 of CPC has recently come up for consideration before the Hon’ble Supreme Court in case of Iqbal Ahmed (dead) by Lrs. & Another vs. Abdul Shukoor reported in 2025 INSC 1027 wherein the Hon’ble Supreme has held in paragraphs 8 and 9 as under: “8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr., AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148 . Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence. 9. As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires re- consideration by the High Court. Since we find that the matter requires re-consideration at the hands of the High Court afresh, we have not gone into the aspect of delay in deciding the appeal by the High Court as was urged on behalf of the appellants.” In view of the facts and circumstances of the case and law laid down by the Hon’ble Supreme Court, the application for taking additional document on record deserves to be rejected and accordingly, it is rejected. 22. The appellants have also filed an application for amendment in pleadings made in written statement by contending that the defendant No. 1 is the sole owner of the suit property and it is his personal property as he has purchased the said property from Smt. Ameera Bai widow of Ghanaram through registered sale deed on 24.07.1952 and Smt. Ameera Bai during her lifetime has executed the will on 01.07.1974 in favour of Murlidhar Verma, as such, after her death in the year 1978, the defendant No. 1 is the sole owner of the suit property and it is his own property and also seek to amend paragraph 15 of the written statement by contending that Sulochana Bai expired on 15.05.1975 and after that marriage of Murlidhar and Kunjbati was performed in accordance with law, therefore, in the ancestral property alongwith the plaintiffs the defendant No. 2 to 4 are also entitled to get the share. 23. The amendment when it should be allowed and when it should not be allowed is bone of contention between the parties in civil litigation and the Hon’ble Supreme Court in various judgments examines the contingencies when the amendment should be allowed and when it should not be allowed. The Hon’ble Supreme Court in case of Asian Hotels (North) Ltd. vs. Alok Kumar Lodha & Others passed in Civil Appeal Nos. 3703-3750 of 2022 has held in paragraph 8 as under: “8. The High Court while allowing the amendment application in exercise of powers under Order 6 Rule 17 of the Code of Civil Procedure has not properly appreciated the fact and / or considered the fact that as such, by granting such an amendment and permitting plaintiffs to amend the plaints incorporating the prayer clause to declare the respective charges / mortgages void abinitio, the nature of the suits will be changed. As per the settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. It would also result in misjoinder of causes of action.” Again the Hon’ble Supreme Court in case of Basavaraj vs. Indira & Others reported in 2024 INSC 151 in paragraphs 9, 12 and 13 has held as under: “9. This Court in M. Revanna v. Anjanamma (Dead) by legal representatives and others11 opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order VI Rule 17 C.P.C. prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Paragraph No. 7 thereof is extracted below: “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 11. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 11. This Court in Revajeetu’s case (supra) enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application. 12. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.” 24. From bare perusal of the pleadings made in the proposed amendment and law laid down by the Hon’ble Supreme Court, it is quite vivid that the plaintiffs intend to bring new pleadings which were not germen in the pleading made before the trial Court and if this amendment is allowed it will amount to build up new case, as such the proposed amendment cannot be allowed to be incorporated in the written statement, therefore, the interim application for amendment filed by the appellants deserves to be rejected and accordingly, it is rejected. 25. Consequently, the appeal being devoid of merit deserves to be dismissed and accordingly, it is dismissed. 26. A decree be drawn up accordingly.