Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.737 OF 2013
WITH
CIVIL APPLICATION NO.1729 OF 2013
ALONG WITH
SECOND APPEAL NO.738 OF 2013
1. Balkrishna Pandurang Halde, ]
Age : 49 Yrs., Occ.: Agriculture. ]
2. Jankabai Popat Vatphade @ ]
Jankabai Pandurang Halde, ]
Age : 38 Yrs., Occ.: Agriculture. ]
3. Pradip Balkrishna Halde, ]
Age : 18 Yrs., Occ.: Education. ]
4. Nilesh Balkrishna Halde, ]
Age : 15 Yrs., Occ.: Education. ]
Respondent No.4 Minor ]
Through natural guardian ]
Applicant No.2. ]
Applicant No.2 is mother of ]
Applicant Nos.3 and 4. ]
All residing at Village Oney, ]
Taluka Niphad, District Nashik. ] …. Appellants
Versus
1. Yeshodabai Balkrishna Halde, ]
Age : Major, ]
R/o. Chandori, Taluka Niphad, ]
District Nashik. ]
2. Jyoti Sahebrao Pawar, ]
Age : 24 Yrs., Occ.: Household, ]
1/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
R/o. Dahayane, Tal. Chandwad, ]
District Nashik. ]
3. Varsha Shantaram Handore, ]
Age : 21 Yrs., Occ.: Household, ]
R/o Vihitgaon, Tal. Dist. Nashik. ] …. Respondents
Mr. Tejas Dande, I/by Mr. Sachin Gite, for the Appellants-Applicants.
Mr. Suresh M. Sabrad for the Respondents.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 30 TH JULY 2018.
ORAL JUDGMENT :
1. Heard learned counsel for Appellants and Respondents
finally, at the stage of admission itself.
2. Admit.
3. Both these Second Appeals are preferred by the unsuccessful
Defendants against the ‘Common Judgment and Decree’ dated 4 th
September 2013 passed by District Judge-1, Niphad, District Nashik, in
Regular Civil Appeal No.177 of 2005 and Regular Civil Appeal No.206 of
2005.
2/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
4. These two Appeals were directed against the ‘Judgment and
Decree’ dated 2nd December 2002 passed by the Civil Judge, Senior
Division, Niphad, District Nashik, in Special Civil Suit No.65 of 1995.
5. The said Suit was filed by Respondent Nos.1 to 3 herein for
partition and separate possession of their 1/4th share each in the suit
properties. Respondent No.1 is the legally wedded wife of Appellant No.1
and Respondent Nos.2 and 3 are their married daughters. Appellant
No.2 is the second wife of Appellant No.1 and Appellant Nos.3 and 4 are
the children born to Appellant No.2 from Appellant No.1 within the
wedlock.
6. It is the case of the Respondents that, the suit lands bearing
Gat Nos.185, 186, 88/2 and 89/1, situate at Mouje Datyane, Taluka
Niphad, and the house property bearing G.P. No.110-B, situate at Village
Oney, Taluka Niphad, District Nashik, along with the other movable
properties, like Jeep, six Shares of Niphad Sugar Factory and the
ornaments worth Rs.60,000/-, were the ancestral joint family properties
of Appellant No.1. The marriage of Respondent No.1 with Appellant No.1
took place on 27th February 1975. She co-habited with him for a period of
about eight years and from within the wedlock, Respondent Nos.2 and 3
are born. Thereafter, she was driven out of the house on 11 th June 1983.
Since then, she was residing along with Respondent Nos.2 and 3 in the
3/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
house of her brother. In a Suit filed by her for maintenance, bearing
Regular Civil Suit No.268 of 1992, the land bearing Gat No.88/2 was
given to her towards her maintenance as her exclusive property and
since then, she is in possession thereof. The said land being given to her
towards the maintenance, she has become absolute owner thereof and
hence, it cannot be subjected to partition. However, as regards the
remaining three lands, the house property and other movable assets,
she, along with her two daughters, is having 1/4th share each therein.
Appellant No.1, however, in order to deprive Respondent No.1 and her
two daughters from their share in the joint family properties, had, out of
the income from the joint family properties, purchased Gat No.89/1 in
the name of his second wife, i.e. Appellant No.2, and was also in the
process of transferring the lands bearing Gat Nos.185 and 186 in the
name of Appellant Nos.3 and 4, who are the sons born to him out of the
second marriage. The Respondents were, therefore, constrained to file
this Suit for partition and separate possession of their share in all these
properties.
7. This Suit came to be resisted by the Appellants herein,
denying that the land bearing Gat No.88/2 has become absolute property
of Respondent No.1. It was also denied that, the land bearing Gat
No.89/1 was purchased by him in the name of Appellant No.2 out of the
income from the ancestral joint family properties. It was submitted that,
4/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 ::: Downloaded on – 31/07/2018 01:42:42 :::
the said land belongs exclusively to Appellant No.2. Hence, Respondents
cannot claim any share in the said property. Moreover, he has also
transferred the lands bearing Gat Nos.185 and 186 in the name of his
sons from the second wife. Therefore, the Respondents cannot claim any
share in the suit lands or other ancestral joint family properties.
8. The Trial Court was, after appreciating the evidence on
record, pleased to hold that, as regards the land bearing Gat No.88/2, as
it was given to Respondent No.1 in view of the ‘Decree’ passed in Regular
Civil Suit No.268 of 1992, she is the absolute owner thereof. Similarly, as
regards the land bearing Gat No.89/1, the Trial Court found, on the basis
of the evidence adduced by Appellant No.2 that, she has purchased the
same from the funds given to her by her father. Hence, the Trial Court
held that, the Respondents cannot be entitled to get share in the said
land, as it belongs exclusively to Appellant No.2. However, as regards the
remaining two lands bearing Gat Nos.185 and 186, the Trial Court held
the Respondents entitled to get their share from the partition of the said
lands and also in the movable properties, like the Jeep and six Shares of
Niphad Sugar Factory. As regards the house property bearing G.P.
No.110-B, the Trial Court found that, Respondent Nos.2 and 3 being the
married daughters, they cannot seek partition in the dwelling house, in
view of Section 23 of the Hindu Succession Act, 1956, and hence, the
Trial Court has rejected their claim for share in the said house.
5/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 ::: Downloaded on – 31/07/2018 01:42:42 :::
9. As to the share of Respondents, the Trial Court held that,
Appellant Nos.3 and 4 also being the legitimate sons of Appellant Nos.1
and 2, they are having equal right in the said property. Accordingly, the
Trial Court held Respondent Nos.1 to 3 entitled to the extent of ½ share
in the joint family properties, bearing Gat Nos.185 and 186 and the Jeep
and six Shares of Niphad Sugar Factory and Appellant Nos.1, 3 and 4
were also held entitled to the 1/6th share each in the said property.
10. Both the Appellants and Respondents have challenged this
Judgment of the Trial Court by preferring counter Appeals before the
District Court. Regular Civil Appeal No.177 of 2005 was preferred by the
Respondents herein, claiming 1/3rd share each in all the joint family
properties, including the dwelling house and also the land bearing Gat
No.89/1; whereas, Regular Civil Appeal No.206 of 2005 came to be
preferred by the present Appellants, being aggrieved by the partial
decree of the Suit.
11. The first Appellate Court has, vide its impugned ‘Common
Judgment and Decree’, dismissed the Appeal preferred by the
Appellants; however, allowed the Appeal preferred by the Respondents
and granted Respondents the share in all the immovable properties,
including the land bearing Gat No.89/1 and also the dwelling house, but
rejected their claim for partition in movable properties like Jeep and
6/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
shares in Niphad Sugar Factory. The first Appellate Court has also
modified the share of the Respondents to the extent of 1/4 th share each
in all these properties.
12. Being aggrieved thereby, the Appellants have preferred these
two separate Second Appeals. In addition to the grounds, which are
raised in the Appeal Memos, learned counsel for the Appellants has
raised the following substantial questions of law, on which both the
Second Appeals are admitted and heard at the stage of admission itself.
(i) Whether the suit properties, described in Para
1A (i and ii), can be categorised as ancestral
properties, particularly in view of the fact that
the said suit properties were devolved upon the
Appellant/Original Defendant No.1, as per
Section 8 of Hindu Succession Act, 1956 and
particularly in view of the ratio laid down in
Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, (1986) 3
SCC 567 that such property devolved as Joint
Family Property, as per Section 8 of the Hindu
Succession Act, 1956, would ceased to be the
Joint Family Property?
(ii) Whether the Plaintiffs, who are wife and
daughters of Defendant No.1, can maintain a
Suit for partition against him, claiming their
respective shares by division of alleged Joint
7/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
Family Property, which is received by the
Defendant under Section 8 of the Hindu
Succession Act, 1956, particularly in view of
the ratio laid down in Uttam Vs. Saubhag Singh
and Ors., (2016) 4 SCC 68 ?
(iii) Whether both the lower Courts have erred on
the point of entitlement of children born out of
void marriages for the purpose of succession of
properties under Section 16 of the Hindu
Marriage Act, 1955, particularly in view of the
ratio laid down in Parayankandiyal Eravath
Kanapravan Kalliani Amma (Smt.) and Others
Vs. K. Devi and Ors., (1996) 4 SCC 76 ?
13. The factual matrix of the present case is not in the realm of
dispute. It is admitted that, Respondent No.1 is the legally wedded wife
of Appellant No.1 and Respondent Nos.2 and 3 are their married
daughters. It is also undisputed that, Appellant No.2 is the second wife of
Appellant No.1, whose marriage was performed during subsistence of
the marriage of Appellant No.1 with Respondent No.1 and, therefore,
their marriage as such is void in view of Sections 5(i) and 11 of the
Hindu Succession Act, 1956. In that sense, therefore, Appellant Nos.3
and 4, who are born to Appellant No.2, are born out of the void marriage
and, therefore illegitimate sons, who are now conferred the status of
legitimacy, in the light of Section 16(i) of the Hindu Succession Act,
1956.
8/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
14. In the backdrop of these admitted facts on record, as regards
the factual aspects, it is the case of Respondent No.1 that, out of the
ancestral joint family properties, as the land bearing Gat No.88/2 was
given to her, as a result of the ‘Decree’ passed in Regular Civil Suit
No.268 of 1992, she has become absolute and sole owner thereof. As
observed by the first Appellate Court, there is nothing on record to show
that the said Judgment is challenged by Appellant No.1 or it is reversed
or set aside. Therefore, as the said land is allotted to Respondent No.1 by
virtue of a ‘Decree’ passed in a judicial proceedings, both the Courts
below have rightly held that, the said land is her absolute property and it
cannot be the subject matter of partition.
15. As regards the land bearing Gat No.89/1, though it is the case
of Appellant No.2 that, she has purchased the same out of the funds
given to her by her father and hence the Trial Court has held that it is
her absolute property, the first Appellate Court has rightly considered
the admissions given by Appellant No.2 and also by Appellant No.1 that,
when she had purchased the said land, she was not having any
independent source of income. Except for her bare and interested words,
she has also not produced any evidence on record about such funds
being given by her father. She has also not examined her father to that
effect, nor produced any documentary evidence, like the Cheque, Pass-
Book, Bank Statement or recitals in the ‘Sale-Deed’. There are no
9/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
pleadings to that effect. In the written statement also, Appellant No.2
has not stated from which source, she has raised those funds for
purchase of the said land. For the first time, Appellant No.2 has put up
this case in the course of her evidence. Hence, in the absence of any
pleadings on record to that effect, the first Appellate Court has rightly
disbelieved the same and held that, as the said land is purchased by
Appellant No.1 in the name of Appellant No.2 from the income of the
joint family properties, it is also subject matter of partition.
16. In respect of the lands bearing Gat Nos.185 and 186,
admittedly, these are the ancestral joint family properties, which were
inherited by Appellant No.1 and which fact he has categorically admitted
in the application at ‘Exhibit-92’, which was given to the Tahasildar for
entering the names of Appellant Nos.3 and 4 to the said property. In his
cross-examination also, Appellant No.1 has admitted the fact that he has
received these properties in the partition. Therefore, it has to be held
that, both the Trial Court and the first Appellate Court had rightly held
the Respondents entitled for their share in these properties. As to the
house property, in view of deletion of Section 23 of the Hindu Succession
Act, by way of Amendment Act of 2005, the Appellate Court has rightly
held Respondent Nos.2 and 3 entitled for partition of their share in the
said house also.
10/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
17. The submission of learned counsel for the Appellants is,
however, to the effect that, even though both these lands bearing Gat
Nos.185 and 186 might be initially the ancestral joint family properties,
but when Appellant No.1 received the same by way of succession from
his father, they ceased to be the joint family properties and they became
his individual properties. Therefore, according to him, both the Courts
below have committed an error in holding these lands as the ancestral
joint family properties, in which the Respondents were held entitled to
the share.
18. To substantiate this submission, learned counsel for the
Appellants has relied upon the two Judgments of the Hon’ble Apex
Court; the first pertains to the Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, (1986) 3 SCC 567 . In this case, the
issue raised for consideration pertains to the applicability of the Wealth
Tax and Income Tax to the income or assets inherited by a son from his
father on his separation. The question raised before the Apex Court was,
‘whether such property can be assessed as his income as ‘Karta’ of his
Hindu Undivided Family or in his individual capacity?’ In that context,
in paragraph No.10 of the said Judgment, it was held as follows :-
“10. The question here, is, whether the income or asset,
which a son inherits from his father, when
11/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
separated by partition, the same should be assessed
as income of the Hindu Undivided Family of son or
his individual income. There is no dispute among
the commentators on Hindu Law, nor in the
decisions of the Court that, under the Hindu Law as
it is, the son would inherit the same as ‘Karta’ of his
own family. But the question is, what is the effect of
Section 8 of the Hindu Succession Act, 1956? The
Hindu Succession Act, 1956 lays down the general
rules of succession in the case of males. The first
rule is that, the property of a male Hindu dying
intestate shall devolve according to the provisions
of Chapter II and Class I of the Schedule provides
that, if there is a male heir of Class I, then, upon the
heirs mentioned in Class I of the Schedule. Class I of
the Schedule reads as follows :-
Son; daughter; widow; mother; son of a
predeceased son; daughter of a
predeceased son; son of a predeceased
daughter; daughter of a predeceased
daughter; widow of a predeceased son;
son of a predeceased son of a
predeceased son; daughter of a
predeceased son of a predeceased son;
widow of a predeceased son of a
predeceased son.
11. The heirs mentioned in Class I of the Schedule are
son, daughter etc., including the son of a
predeceased son, but does not include specifically
the grand-son, being a son of a son living.
Therefore, the short question is, when the son as
heir of Class I of the Schedule inherits the
12/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
property, does he do so in his individual capacity
or does he do so as ‘Karta’ of his own undivided
family?”
19. While deciding this question, in paragraph No.22 of the said
Judgment, it was held by the Hon’ble Apex Court that,
“22. In view of the preamble to the Act i.e. to modify
where necessary and to codify the law, in our opinion,
it is not possible when Schedule indicates heirs in
Class I and only includes son and does not include
son’s son, but does include son of a predeceased son,
to say that, when son inherits the property in the
situation contemplated by Section 8, he takes it as
‘Karta’ of his own undivided family. The Gujarat High
Court’s view noted above, if accepted, would mean
that, though the son of a predeceased son and not the
son of a son, who is intended to be excluded under
Section 8 to inherit, the latter would be applying the
old Hindu Law get a right by birth of the said
property, contrary to the Scheme outlined in Section
8. Furthermore, as noted by the Andhra Pradesh
High Court that, the Act makes it clear by Section 4
that, one should look to the Act in case of doubt and
not to the pre-existing Hindu Law. It would be difficult
to hold today the property, which devolved on a
Hindu, under Section 8 of the Hindu Succession Act,
would be HUF in his hand vis-a-vis his own son; that
would amount to creating two classes among the
heirs mentioned in Class I, the male heirs, in whose
hands it will be joint Hindu family property, and vis-
a-vis son and female heirs, with respect to whom no
13/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
such concept could be applied or contemplated. It
may be mentioned that, heirs in Class I of Schedule
under Section 8 of the Act included widow, mother,
daughter of predeceased son etc.”
[Emphasis Supplied]
20. Thus, even a cursory glance to this Judgment of the Hon’ble
Apex Court is more than sufficient to show that the facts of the said case
were totally different. In that case, the question raised for consideration
was, ‘whether the income or assets, which a son inherits from his father,
when separated by partition, the same should be assessed as income of
the Hindu Undivided Family of son or his individual income ?’ In that
context, while considering the effect of Section 8 of the Hindu Succession
Act, 1956, it was held that, as the son, daughter etc., including the son of
a predeceased son, are included in Class-I heir, but the grand-son, being a
son of a son living, is not included in Class-I heir, when he inherits the
property, he does so in his individual capacity and not as ‘Karta’ of Hindu
Undivided Family.
21. Needless to state that, this Judgment of the Hon’ble Apex
Court, in the context of the facts in which it was given, thus, cannot
become in any way applicable to the facts of the present case. Here there
is no question of Appellant No.1 constituting any HUF business with his
father while his father was alive and there was any partition of such
business. Hence, the said case is distinguishable on facts. Here in the
14/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
case, the status or character of the properties inherited by Appellant
No.1 remains the same as ancestral joint family properties and it cannot
be accepted that, these properties ceased to be joint family properties in
his hands and they became his individual properties.
22. Learned counsel for the Appellants has then placed reliance
on the Judgment of the Hon’ble Apex Court in the case of Uttam Vs.
Saubhag Singh and Others, (2016) 4 SCC 68 . However, the facts of the
said case are also totally different from the facts of the present case. In
that case, one “J”, having interest in the ancestral Mitakshara joint
family property, along with other coparceners, died in 1973, leaving
behind his widow “M” and sons. The Appellant-Plaintiff was the grand-
son of “J”, who was born in 1977 i.e. after his grand-father’s death. He
filed a Suit for partition of the joint family property in 1998, in which the
first four Defendants were his father (Defendant No.3) and his father’s
three brothers (Defendant Nos.1, 2 and 4). He claimed a 1/8 th share in
the suit property on the footing that, the suit property was ancestral
property and that being a coparcener, he had a right by birth in the said
property in accordance with the Mitakshara Law.
23. The Trial Court, in the year 2000, decreed the Suit holding
that, the property was ancestral and that on the evidence, there was no
earlier partition of the property, as pleaded by the Defendants in their
15/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:42 :::
written statement. The first Appellate Court, while confirming the Trial
Court’s findings regarding the property being ancestral and there being
no earlier partition, held that, after death of the Plaintiff’s grand-father
“J”, his widow being alive, “J’s” share would have to be distributed in
accordance with Section 8 of the Hindu Succession Act, 1956, as if “J”
had died intestate and as such, the joint family property had to be
divided in accordance with rules of intestacy and not survivorship.
Accordingly, no joint family property remained to be divided, when the
Suit for partition was filed by the Plaintiff and that since the Plaintiff had
no right while his father was alive, the father alone being a Class-I heir
and consequently the Plaintiff not being a Class-I heir, the Plaintiff had
no right to sue for partition and, therefore, the Suit was dismissed.
Consequently, the First Appeal was allowed. The High Court dismissed
the Second Appeal of the Plaintiff following the same line of reasoning
and the Hon’ble Apex Court also dismissed the Second Appeal by Special
Leave. While deciding this factual controversy, the Hon’ble Supreme
Court has summarized the law insofar as it applies to succession to the
joint family property governed by the Mitakshara School, prior to the
Amendment of 2005, as follows :-
“18. ……………………………………………………………………………………….
(i) When a male Hindu dies after the commencement of
the Hindu Succession Act, 1956, having at the time
of his death an interest in Mitakshara coparcenary
property, his interest in the property will devolve by
16/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
survivorship upon the surviving members of the
coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in
Section 30 Explanation of the Act, making it clear
that notwithstanding anything contained in the Act,
the interest of a male Hindu in Mitakshara
coparcenary property is property that can be
disposed of by him by will or other testamentary
disposition.
(iii) A second exception engrafted on proposition (i) is
contained in the proviso to Section 6, which states
that, if such a male Hindu had died leaving behind a
female relative, specified in Class I of the Schedule,
or a male relative, specified in that class, who claims
through such female relative surviving him, then the
interest of the deceased in the coparcenary property
would devolve by testamentary or intestate
succession and not by survivorship.
(iv) In order to determine the share of the Hindu male
coparcener, who is governed by Section 6 Proviso, a
partition is effected by operation of law immediately
before his death. In this partition, all the
coparceners and the male Hindu’s widow get a share
in the joint family property.
(v) On the application of Section 8 of the Act, either by
reason of the death of a male Hindu, leaving self-
acquired property or by the application of Section 6
Proviso, such property would devolve only by
intestacy and not survivorship.
17/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
(vi) On a conjoint reading of Sections 4, 8 and 19 of the
Act, after joint family property has been distributed
in accordance with Section 8 on principles of
intestacy, the joint family property ceases to be joint
family property in the hands of the various persons,
who have succeeded to it, as they hold the property
as tenants-in-common and not as joint tenants.”
24. Applying the law laid down above to the facts of the case, it
was held in paragraph No.19 of the said Judgment that,
“On the death of Jagannath Singh in 1973, the joint
family property, which was ancestral property in the
hands of Jagannath Singh and the other coparceners,
devolved by succession, under Section 8 of the Hindu
Succession Act, 1956. This being the case, the
ancestral property ceased to be joint family property
on the date of death of Jagannath Singh and the other
coparceners and his widow held the property as
tenants-in-common and not as joint tenants. This
being the case, on the date of the birth of the
Appellant in 1977, the said ancestral property, not
being joint family property, the Suit for partition of
such property would not be maintainable.”
25. Thus, it can clearly be discerned that the facts of the said
case were different in the sense that, the Suit for partition was filed by
the son against his father and three brothers, when they were in joint
family with their father, and in that context, it was held that, these four
brothers and father were holding the property as tenants-in-common
18/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
and not joint tenants. Therefore, the grand-son cannot maintain Suit for
partition, claiming his share by division of the alleged joint family
property.
26. Here in the case, it is not at all the contention of Appellant
No.1 that, still he continues to be in joint family with his father or
brother. Admittedly, the properties inherited by him are the ancestral
joint family properties and hence, Respondent Nos.1 to 3, namely, his
legally wedded wife and two daughters from the first wife, are entitled to
seek partition in the suit properties. It cannot be said that the suit
properties have ceased to be joint family properties. The legal position,
which is discussed in the above-said Judgment of Uttam Vs. Saubhag
Singh (Supra), on which much reliance is placed by learned counsel for
the Appellants, therefore, cannot be made applicable to the facts of the
present case.
27. The reliance placed by learned counsel for the Appellants on
the Judgment of the Hon’be Apex Court in the case of Parayankandiyal
Eravath Kanapravan Kalliani Amma (Smt.) and Others Vs. K. Devi and
Others, (1996) 4 SCC 76 , is also totally misplaced. It cannot be made
applicable to the present case, as the question involved in the said
Judgment was, ‘the legitimacy of the children born out of the void
marriage, prior to commencement of the Hindu Marriage Act, 1955’ , and
19/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
in that context, it was held that, pre-amended Section 16, classifying
legitimate children into two groups, namely, those born of void
marriages performed before the Act and those born of void marriages
performed after the Act came into force, was violative of Article 14.
Hence, the amendment removing this mischief and also de-linking
Section 11 from Section 16 was the correct one. Here in the case, no
question is involved as to whether Appellant Nos.3 and 4 are born before
amendment of Section 16 in the Hindu Marriage Act, 1955. Therefore,
this Judgment is of no use.
28. Once it is held that the suit properties are ancestral joint
family properties, it follows that, in view of amendment to Section 6 of
the Hindu Succession Act, 1956, Respondent Nos.2 and 3 being the
daughters and hence equal coparceners like sons, are entitled to claim
partition and equal share like that of a son in the joint family properties
of their father-Appellant No.1. In the said partition, Respondent No.1,
being a legally wedded wife, is also entitled to equal share like
Respondent Nos.2 and 3.
29. This brings me to the question as to the share and the
entitlement of Appellant Nos.2 to 4 in the suit properties. As regards
Appellant No.2, admittedly, her marriage with Appellant No.1 having
taken place during subsistence of the marriage of Appellant No.1 with
20/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
Respondent No.1, her marriage is void and hence, she cannot be entitled
to any share in the joint family properties; even in the properties, which
might be allotted to the share of Appellant No.1 in the notional partition.
As regards Appellant Nos.3 and 4, they are the sons born to Appellant
No.2 within the wedlock, but as they are the children born of a void
wedlock, their rights are required to be considered in the light of Section
16 of the Hindu Marriage Act, 1955, which can be reproduced for ready
reference as follows :-
“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.
21/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
(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.”
[ Emphasis Supplied ]
30. Thus, as per the legal position, as spelt out in Section 16(1) of
the Act, the legitimacy is definitely conferred on the children born out of
a void marriage. Therefore, in this case, Appellant Nos.3 and 4 can
definitely be called as legitimate children. However, the real question for
consideration is, ‘what effect it has so far as the right of such children to
get share in the property of their parents; whether the property of their
parents include only their self-acquired property or also the joint family
property?’ In this respect, sub-section (3) of Section 16 of the Hindu
Marriage Act, 1955, makes the position very clear by stating that, such
children can have right only in the property of their parents and not in
the property of any other person. As to the question, ‘whether the
property of their parents, therefore, include the property, which is self-
acquired by the parents, or, which is in the hands of their parents as
joint family property?’, the Division Bench of this Court has, in the case
of Shantaram Tukaram Patil Vs. Smt. Dagubai Tukaram Patil, 1987 (1)
22/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
Bom.C.R. 714, after taking review of all its earlier decisions, was pleased
to hold, in paragraph No.18 of its Judgment that,
“In our opinion, therefore, it will be incorrect to say
that, the son of a void marriage, though legitimate by
virtue of the provisions contained in Section 16 of
the Hindu Marriage Act, can claim a share in the
property, which belongs to a coparcenary, of which
his father is a Member.”
31. In paragraph No.24 of the said Judgment, it was further held
that,
“Since no child acquires a right in the property of its
parents by birth, these rights can be exercised only by
way of succession to the property. For that purpose,
such children are to be treated as heirs in Class-I of
the Schedule to the Hindu Succession Act and they are
entitled to succeed in accordance with the provisions
contained in Section 8 of the Hindu Succession Act.”
32. In paragraph No.27 of the said Judgment with regard to the
child of a void marriage, it was held that,
“Such a child does not acquire right to property,
which a legitimate child would, but the legitimacy
confers upon him the right to property of his
parents alone. The property, to which such a child
can lay claim, must be the separate property of the
parents and not the coparcenery property, in which
the parent has a share.”
23/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
33. Thus, it is now made more than clear that, the children of a
void marriage, though regarded as legitimate, such children would not
be entitled to any share in the properties, which are ancestral
coparcenary joint family properties of their parents. Their right to claim
the share remains limited only to the extent of the separate property of
their father, but in that property, they cannot make any claim during the
lifetime of their father. Their right in the separate properties of their
father will accrue only on the death of their father and, that too, by way
of succession.
34. The Hon’ble Apex Court has, in the case of Jinia Keotin Vs.
Kumar Sitaram Manjhi, (2003) 1 SCC 730 , made this legal position
further clear, after considering the provisions of Section 16(3) of the
Hindu Marriage Act, 1955, as follows :-
4. “We have carefully considered the submissions of the
learned counsel on either side. The Hindu Marriage Act
underwent important changes by virtue of the Marriage
Laws (Amendment) Act, 1976, which came into force
with effect from 27th May 1976. Under the ordinary law, a
child for being treated as legitimate must be born in
lawful wedlock. If the marriage itself is void on account of
contravention of the statutory prescriptions, any child
born of such marriage would have the effect, per se, or on
being so declared or annulled, as the case may be, of
bastardizing the children born of the parties to such
marriage. Polygamy, which was permissible and widely24/28
SA-737–738-2013.doc::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
prevalent among the Hindus in the past and considered
to have evil effects on society, came to be put an end to by
the mandate of Parliament in enacting the Hindu
Marriage Act, 1955. The legitimate status of the children,
which depended very much upon the marriage between
their parents being valid or void, thus, turned on the act
of the parents, over which the innocent child had no hold
or control. But, for no fault of it, the innocent baby had to
suffer a permanent set back in life and in the eyes of
society by being treated as illegitimate. A laudable and
noble act of the legislature indeed in enacting Section 16
is to put an end to a great social evil. At the same time,
Section 16 of the Act, while engrafting a rule of fiction in
ordaining the children, though illegitimate, to be treated
as legitimate, notwithstanding that the marriage was
void or voidable, chose also to confine its application, so
far as succession or inheritance by such children is
concerned, to the properties of the parents only.”
[ Emphasis Supplied ]
5. “So far as Section 16 of the Act is concerned, though it
was enacted to legitimise children, who would otherwise
suffer by becoming illegitimate, at the same time, it
expressly provides in sub-section (3) by engrafting a
provision with a non obstante clause, stipulating
specifically 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 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”. In the light of such an25/28
SA-737–738-2013.doc::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
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 amount to court re-legislating on the subject
under the guise of interpretation, against even the will
expressed in the enactment itself.”
35. Thus, the Hon’ble Supreme Court has found that, the express
mandate laid down by Legislature in Section 16(3) of the Act cannot be
ignored, by resorting to any presumptive or inferential process of
reasoning to confer any further rights on such children in the joint
family property. Thus, the legal position, which stands as on today is
that, though by virtue of Section 16(1) of the Hindu Marriage Act, the
illegitimate child has been conferred the status of a legitimate child, it
did not confer the status of a coparcener. Consequently, such a child does
not acquire any right by birth in any property, much less coparcenery or
joint family property. As illegitimate child is not a coparcener, he can
exercise his right in father’s property only on his father dying intestate.
He has no right by birth and hence, he cannot be given any share even in
the property of his parents till they are alive.
26/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
36. The latest, though not the last, pronouncement of the Hon’ble
Apex Court on this subject is of Revanasiddappa Vs. Mallikarjun, (2011)
11 SCC 1, wherein the Apex Court has again considered the
interpretation of Section 16(3) of the Hindu Marriage Act, 1955, and
after taking the review of its earlier decisions held that, the view taken
in Jinia Keotin (Supra) was a narrow view of Section 16(3) and,
therefore, has placed the matter before the Larger Bench for re-
consideration of that view, in the light of the Constitutional provisions of
Article 300-A and Article 39-F, which deal with the ‘Concept of Property
Rights’. The said ‘Reference’ is yet to be decided. As a result, the legal
position, which stands as on today, is that, the children born to the
second wife, who are rightfully called as ‘legitimate’, their right to get
share in the property is, however, restricted only to the property of their
parents and not to the joint family properties.
37. Here in the case, admittedly, all the suit properties are the
ancestral joint family properties of Appellant No.1. As stated above, in
the application given to the Tahasildar vide ‘Exhibit-92’, Appellant No.1
has categorically stated that, these are the ancestral joint family
properties and, therefore, Appellant Nos.3 and 4, who are born out of the
void marriage, cannot get any share therein at par with the share of
Respondent Nos.2 and 3, who are the daughters born from the first
marriage and, therefore, in the strict sense, legitimate children.
27/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::
Appellant Nos.3 and 4 can get share only in the properties, which
Appellant No.1 would get to his share.
38. The first Appellate Court has, therefore, rightly held that,
Respondent Nos.1 to 3 will get 1/4 th share each in the suit lands bearing
Gat Nos.185, 186, 89/1 and house property bearing G.P. No.110-B.
Appellant No.1 will, accordingly, get 1/4th share.
39. As regards the share of Appellant Nos.3 and 4, they will get
only by way of succession, in the 1/4th share of Appellant No.1 on his
dying intestate. So far as the present Suit is concerned, they cannot be
entitled to any share in the suit properties.
40. The impugned ‘Common Judgment and Decree’, therefore,
passed by the first Appellate Court being just, legal and correct and in
tune with the legal position discussed above, no interference is
warranted therein. Both the Second Appeals, therefore, stand dismissed.
41. In view of dismissal of both these Second Appeals, Civil
Application No.1729 of 2013, pending in Second Appeal No.737 of 2013,
does not survive and the same stands disposed off as infructuous.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
28/28
SA-737–738-2013.doc
::: Uploaded on – 30/07/2018 31/07/2018 01:42:43 :::