Revanasiddappa & Another
Vs Mallikarjun & others
J U D G M E N T
first defendant had two wives- the third plaintiff (the first wife) and the
fourth defendant (the second wife). The first defendant had two children from the
first wife, the third plaintiff, namely, the first and second plaintiffs; and
another two children from his second wife, the fourth defendant namely, the second
and third defendant.
plaintiffs (first wife and her two children) had filed a suit for partition and
separate possession against the defendants for their 1/4th share each with respect
to ancestral property which had been given to the first defendant by way of
grant. The plaintiffs contended that the first defendant had married the fourth
defendant while his first marriage was subsisting and, therefore, the children born
in the said second marriage would not be entitled to any share in the ancestral
property of the first defendant as they were not coparceners.
the defendants contended that the properties were not ancestral properties at
all but were self-acquired properties, except for one property which was ancestral.
Further, the first defendant also contended that it was the fourth defendant who
was his legally wedded wife, and not the third plaintiff and that the plaintiffs
had no right to claim partition. Further, the first defendant also alleged that
an oral partition had already taken place earlier.
Trial Court, by its judgment and order dated 28.7.2005, held that the first defendant
had not been able to prove oral partition nor that he had divorced the third plaintiff.
The second marriage of the first defendant with the fourth defendant was found to
be void, as it had been conducted while his first marriage was still legally
subsisting. Thus, the Trial Court held that the third plaintiff was the legally
wedded wife of the first defendant and thus was entitled to claim partition. Further,
the properties were not self-acquired but ancestral properties and, therefore,
the plaintiffs were entitled to claim partition of the suit properties. The plaintiffs
and the first defendant were held entitled to 1/4th share each in all the suit
the defendants filed an appeal against the judgment of the Trial Court. The First
Appellate Court, vide order dated 23.11.2005, re-appreciated the entire evidence
on record and affirmed the findings of the Trial Court that the suit properties
were ancestral properties and that the third plaintiff was the legally wedded wife
of the first defendant, whose marriage with the fourth defendant was void and thus
children from such marriage were illegitimate. However, the Appellate Court
reversed the findings of the Trial Court that illegitimate children had no right
to a share in the coparcenary property by relying on a judgment of the Division
Bench of the Karnataka High Court in Smt. Sarojamma & Ors. v. Smt. Neelamma
Appellate Court held that children born from a void marriage were to be treated
at par with coparceners and they were also entitled to the joint family properties
of the first defendant. Accordingly, the Appellate Court held that the
plaintiffs, along with the first, second and third defendants were entitled to equal
share of 1/6th each in the ancestral properties.
plaintiffs, being aggrieved by the said judgment of the Appellate Court,
preferred a second appeal before the High Court of Karnataka. The substantial questions
of law before the High Court were: "a) Whether the illegitimate children born
out of void marriage are regarded as coparceners by virtue of the amendment to the
Hindu Marriage Act, 1956? b) At a partition between the coparceners whether
they are entitled to a share in the said properties?"
High Court stated that the said questions were no more res integra and had been
considered in the judgment of Sri Kenchegowda v. K.B. Krishnappa & Ors., [ILR
2008 Kar 3453]. It observed that both the lower courts had concurrently concluded
that the fourth defendant was the second wife of the first defendant. Therefore,
the second and third defendants were illegitimate children from a void
marriage. Section 16(3) of the Hindu Marriage Act makes it clear that illegitimate
children only had the right to the property of their parents and no one else. As
the first and second plaintiffs were the legitimate children of the first
defendant they constituted a coparcenary and were entitled to the suit properties,
which were coparcenary properties. They also had a right to claim partition against
the other coparcener and thus their suit for partition against the first defendant
was maintainable. However, the second and third defendants were not entitled to
a share of the coparcenary property by birth but were only entitled to the separate
property of their father, the first defendant. The High Court observed that
upon partition, when the first defendant got his share on partition, then the second
and third defendants would be entitled to such share on his dying intestate,
but during his lifetime they would have no right to the said property. Hence,
the High Court allowed the appeal and held that the first plaintiff, second
plaintiff and the first defendant would be entitled to 1/3rd share each in the suit
properties. The claim of the third plaintiff and the second, third and fourth
defendants in the suit property was rejected.
a result, the second and third defendants (present appellants) filed the
question which crops up in the facts of this case is whether illegitimate children
are entitled to a share in the coparcenary property or whether their share is limited
only to the self-acquired property of their parents under Section 16(3) of the
Hindu Marriage Act?
16(3) of the Hindu Marriage Act, 1955 reads as follows: "16. Legitimacy of
children of void and voidable marriages- (1) xxx (2) xxx (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 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.
the abovementioned section makes it very clear that a child of a void or voidable
marriage can only claim rights to the property of his parents, and no one else.
However, we find it interesting to note that the legislature has advisedly used
the word "property" and has not qualified it with either self-acquired
property or ancestral property. It has been kept broad and general.
to enactment of Section 16(3) of the Act, the question whether child of a void or
voidable marriage is entitled to self-acquired property or ancestral property of
his parents was discussed in a catena of cases. The property rights of
illegitimate children to their father's property were recognized in the cases of
Sudras to some extent.
Kamulammal (deceased) represented by Kattari Nagaya Kamarajendra Ramasami Pandiya
Naicker v. T.B.K. Visvanathaswami Naicker (deceased) & Ors., [AIR 1923 PC
8], the Privy Council held when a Sudra had died leaving behind an illegitimate
son, a daughter, his wife and certain collateral agnates, both the illegitimate
son and his wife would be entitled to an equal share in his property. The
illegitimate son would be entitled to one-half of what he would be entitled had
he been a legitimate issue. An illegitimate child of a Sudra born from a slave
or a permanently kept concubine is entitled to share in his father's property, along
with the legitimate children.
P.M.A.M. Vellaiyappa Chetty & Ors. v. Natarajan & Anr., [AIR 1931 PC 294],
it was held that the illegitimate son of a Sudra from a permanent concubine has
the status of a son and a member of the family and share of inheritance given
to him is not merely in lieu of maintenance, but as a recognition of his status
as a son; that where the father had left no separate property and no legitimate
son, but was joint with his collaterals, the illegitimate son was not entitled to
demand a partition of the joint family property, but was entitled to maintenance
out of that property. Sir Dinshaw Mulla, speaking for the Bench, observed that though
such illegitimate son was a member of the family, yet he had limited rights
compared to a son born in a wedlock, and he had no right by birth. During the lifetime
of the father, he could take only such share as his father may give him, but after
his death he could claim his father's self-acquired property along with the legitimate
Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh & Anr.,
[1889-90 Indian Appeals 128], the facts were that the Raja was a Sudra and died
leaving behind a legitimate son, an illegitimate son and a legitimate daughter
and three widows. The legitimate son had died and the issue was whether the illegitimate
son could succeed to the property of the Raja. The Privy Council held that the illegitimate
son was entitled to succeed to the Raja by virtue of survivorship.
Gur Narain Das & Anr. v. Gur Tahal Das & Ors., [AIR 1952 SC 225], a
Bench comprising Justice Fazl Ali and Justice Bose agreed with the principle
laid down in the case of Vellaiyappa Chetty (supra) and supplemented the same by
stating certain well-settled principles to the effect that "firstly, that
the illegitimate son does not acquire by birth any interest in his father's estate
and he cannot therefore demand partition against his father during the latter's
lifetime. But on his father's death, the illegitimate son succeeds as a
coparcener to the separate estate of the father along with the legitimate son(s)
with a right of survivorship and is entitled to enforce partition against the legitimate
son(s) and that on a partition between a legitimate and an illegitimate son, the
illegitimate son takes only one-half of what he would have taken if he was a legitimate
son." However, the Bench was referring to those cases where the illegitimate
son was of a Sudra from a continuous concubine.
the case of Singhai Ajit Kumar & Anr. v. Ujayar Singh & Ors., [AIR 1961
SC 1334], the main question was whether an illegitimate son of a Sudra
vis-`-vis his self-acquired property, after having succeeded to half-share of his
putative father's estate, would be entitled to succeed to the other half share got
by the widow. The Bench referred to Chapter 1, Section 12 of the Yajnavalkya and
the cases of Raja Jogendra Bhupati (supra) and Vellaiyappa Chetty (supra) and
concluded that "once it is established that for the purpose of succession an
illegitimate son of a Sudra has the status of a son and that he is entitled to
succeed to his putative father's entire self-acquired property in the absence of
a son, widow, daughter or daughter's son and to share along with them, we
cannot see any escape from the consequential and logical position that he shall
be entitled to succeed to the other half share when succession opens after 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").
the issues relating to the extent of property rights conferred on such children
under Section 16(3) of the amended Act were discussed in detail in the case of Jinia
Keotin & Ors. v. Kumar Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was
contended that by virtue of Section 16(3) of the Act, which entitled such children's
rights to the property of their parents, such property rights included right to
both self-acquired as well as ancestral property of the parent. This Court,
repelling such contentions held that "in the light of such an express mandate
of the legislature itself, there is no room for according upon such children who
but for Section 16 would have been branded as illegitimate any further rights than
envisaged therein by resorting to any presumptive or inferential process of reasoning,
having recourse to the mere object or purpose of enacting Section 16 of the
Act. Any attempt to do so would amount to doing not only violence to the provision
specifically engrafted in sub-section (3) of Section 16 of the Act but also
would attempt to court relegislating on the subject under the guise of interpretation,
against even the will expressed in the enactment itself." Thus, the submissions
of the appellants were rejected.
our humble opinion this Court in Jinia Keotin (supra) took a narrow view of Section
16(3) of the Act. The same issue was again raised in Neelamma & Ors. v. Sarojamma
& Ors. wherein the court referred to the decision in Jinia Keotin (supra) and
held that illegitimate children would only be entitled to a share of the
self-acquired property of the parents and not to the joint Hindu family
position was again reiterated in a recent decision of this court in Bharatha Matha
& Anr. v. R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685], wherein this
Court held that a child born in a void or voidable marriage was not entitled to
claim inheritance in ancestral coparcenary property but was entitled to claim only
share in self-acquired properties.
cannot accept the aforesaid interpretation of Section 16(3) given in Jinia Keotin
(supra), Neelamma (supra) and Bharatha Matha (supra) for the reasons discussed
legislature has used the word "property" in Section 16(3) and is
silent on whether such property is meant to be ancestral or self-acquired. Section
16 contains an express mandate that such children are only entitled to the
property of their parents, and not of any other relation.
a careful reading of Section 16 (3) of the Act we are of the view that the amended
Section postulates that such children would not be entitled to any rights in the
property of any person who is not his parent if he was not entitled to them, by
virtue of his illegitimacy, before the passing of the amendment. However, the said
prohibition does not apply to the property of his parents. Clauses (1) and (2) of
Section 16 expressly declare that such children shall be legitimate. If they
have been declared legitimate, then they cannot be discriminated against and they
will be at par with other legitimate children, and be entitled to all the rights
in the property of their parents, both self-acquired and ancestral. The prohibition
contained in Section 16(3) will apply to such children with respect to property
of any person other than their parents.
changing social norms of legitimacy in every society, including ours, what was
illegitimate in the past may be legitimate today. The concept of legitimacy stems
from social consensus, in the shaping of which various social groups play a
vital role. Very often a dominant group loses its primacy over other groups in view
of ever changing socio-economic scenario and the consequential vicissitudes in human
relationship. Law takes its own time to articulate such social changes through
a process of amendment. That is why in a changing society law cannot afford to
remain static. If one looks at the history of development of Hindu Law it will
be clear that it was never static and has changed from time to time to meet the
challenges of the changing social pattern in different time.
amendment to Section 16 of the Hindu Marriage Act was introduced by Act 60 of 76.
This amendment virtually substituted the previous Section 16 of the Act with the
present Section. From the relevant notes appended in the clause relating to
this amendment, it appears that the same was done to remove difficulties in the
interpretation of Section 16.
constitutional validity of Section 16(3) of Hindu Marriage Act was challenged
before this Court and upholding the law, this Court in Parayankandiyal Eravath Kanapravan
Kalliani Amma (Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC 76], held that
Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner
which advances the object of the legislation. This Court also recognized that the
said Act intends to bring about social reforms and further held that conferment
of social status of legitimacy on innocent children is the obvious purpose of
Section 16 (See para 68).
paragraph 75, page 101 of the report, the learned judges held that Section 16 was
previously linked with Sections 11 and 12 in view of the unamended language of Section
16. But after amendment, Section 16(1) stands de-linked from Section 11 and Section
16(1) which confers legitimacy on children born from void marriages operates
with full vigour even though provisions of Section 11 nullify those marriages.
Such legitimacy has been conferred on the children whether they were/are born
in void or voidable marriage before or after the date of amendment.
paragraph 82 at page 103 of the report, the learned Judges made the following
observations: "In view of the legal fiction contained in Section 16, the illegitimate
children, for all practical purposes, including succession to the properties of
their parents, have to be treated as legitimate. They cannot, however, succeed to
the properties of any other relation on the basis of this rule, which in its operation,
is limited to the properties of the parents."
has been held in Parayankandiyal (supra) that Hindu Marriage Act is a
beneficent legislation and intends to bring about social reforms. Therefore, the
interpretation given to Section 16(3) by this Court in Jinia Keotin (supra),
Neelamma (supra) and Bharatha Matha (supra) needs to be reconsidered.
the amendment of Section 16(3), the common law view that the off springs of marriage
which is void and voidable are illegitimate `ipso-jure' has to change completely.
We must recognize the status of such children which has been legislatively
declared legitimate and simultaneously law recognises the rights of such children
in the property of their parents. This is a law to advance the socially
beneficial purpose of removing the stigma of illegitimacy on such children who
are as innocent as any other children.
one thing must be made clear that benefit given under the amended Section 16 is
available only in cases where there is a marriage but such marriage is void or voidable
in view of the provisions of the Act.
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 life time of their parents such children
cannot ask for partition but they can exercise this right only after the death
of their parents.
are constrained to differ from the interpretation of Section 16(3) rendered by this
Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha
Matha (supra) in view of the constitutional values enshrined in the preamble of
our Constitution which focuses on the concept of equality of status and opportunity
and also on individual dignity. The Court has to remember that relationship between
the parents may not be sanctioned by law but the birth of a child in such
relationship has to be viewed independently of the relationship of the parents.
A child born in such relationship is innocent and is entitled to all the rights
which are given to other children born in valid marriage. This is the crux of the
amendment in Section 16(3). However, some limitation on the property rights of such
children is still there in the sense their right is confined to the property of
their parents. Such rights cannot be further restricted in view of the pe-existing
common law view discussed above.
It is well known that
this Court cannot interpret a socially beneficial legislation on the basis as if
the words therein are cast in stone. Such legislation must be given a purposive
interpretation to further and not to frustrate the eminently desirable social purpose
of removing the stigma on such children. In doing so, the Court must have regard
to the equity of the Statute and the principles voiced under Part IV of the
Constitution, namely, the Directive Principles of State Policy. In our view this
flows from the mandate of Article 37 which provides that it is the duty of the
State to apply the principles enshrined in Chapter IV in making laws. It is no
longer in dispute that today State would include the higher judiciary in this country.
Considering Article 37 in the context of the duty of judiciary, Justice Mathew in
Kesavananda Bharati Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC
225] held: "......I can see no incongruity in holding, when Article 37 says
in its latter part "it shall be the duty of the State to apply these principles
in making laws", that judicial process is `State action' and that the
judiciary is bound to apply the Directive Principles in making its judgment."
by this principle, we are of the opinion that Article 39 (f) must be kept in mind
by the Court while interpreting the provision of Section 16(3) of Hindu Marriage
Act. Article 39(f) of the Constitution runs as follows: "
principles of policy to be followed by the State: The State shall, in particular,
direct its policy towards securing- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f)
that children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment."
from Article 39(f), Article 300A also comes into play while interpreting the concept
of property rights. Article 300A is as follows: "300A. Persons not to be deprived
of property save by authority of law: No person shall be deprived of his property
save by authority of law."
to property is no longer fundamental but it is a Constitutional right and Article
300A contains a guarantee against deprivation of property right save by
authority of law.
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.
the reasons discussed above, we are constrained to take a view different from the
one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha
(supra) on Section 16(3) of the Act.
are, therefore, of the opinion that the matter should be reconsidered by a
larger Bench and for that purpose the records of the case be placed before the Hon'ble
the Chief Justice of India for constitution of a larger Bench.
(ASOK KUMAR GANGULY)