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Judgments of Supreme Court of India and High Courts

Shri Balkrishna Pandurang Halde … vs Smt. Yeshodabai Balkrishna Halde on 30 July, 2018

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, ]

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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.

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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

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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,

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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(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

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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

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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

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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.

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(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)

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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.”

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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 widely

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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 an

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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.

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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.

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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.]

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