S.A.No.402/2002

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.402 of 2002

Order reserved on: 27-2-2019

Order delivered on: 5-3-2019

Suddu Ram, aged about 45 years, S/o late Ghasiram Gond
Nakaram, R/o Village Chouriya, Police Station Narharpur, Distt.
Kanker (C.G.)
(Plaintiff)
—- Appellant

Versus

1. Kamlesh Kumar, aged about 19 years, S/o Ganga Prasad Halwa,

2. Kamalkant, aged about 16 years, S/o Ganga Prasad Halwa,
(Respondent No.2 is a minor through its legal guardian, Ganga

Prasad Halwa,)

Both R/o Village Chouriya, Police Station Narharpur, Distt. Kanker
(C.G.)

3. Shobhrai (Died and deleted)

4. State of Chhattisgarh, through the Collector, Kanker, Distt. Kanker
(C.G.)
(Defendants)

—- Respondents

For Appellant: Mr. Vishnu Koshta and Mr. Shobhit Koshta, Advocates.
For Respondents No.1 and 2: –

Mr. Rajkumar Pali, Advocate.

For Respondent No.4 / State: –

Mrs. Meha Kumar, Panel Lawyer.

Amicus Curiae: Mr. Ratan Pusty, Advocate.

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Judgment

1. This plaintiff’s second appeal was admitted for hearing on the

following substantial questions of law: –

“1. Whether the 1st appellate court was justified in
reversing the finding of the trial court holding that the
appellant/plaintiff is not the legal son of Ghasiram?

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2. Whether the 1st appellate court was justified in holding
that the appellant/plaintiff would not have any right in the
property of his father Ghasiram as per provisions of
Hindu Succession Act in spite of the fact that the
appellant/plaintiff was the son of the 2nd wife of the
appellant?”

(For the sake of convenience, parties would be referred as
per their status shown and ranking given in the plaint before the trial
Court.)

2. Following genealogical tree would demonstrate the relationship

among parties: –

Bendu (Dead)

Ghasi (Dead) Ghasiya (Dead)

Punaram
Ghasnin
Dulli (Dead)
(Plaintiff No.2)
Rohidas
(Defendant No.1) Suddu
(Plaintiff No.1)

3. Ghasi had two wives Dulli and Ghasnin. Defendant No.1 is son of

Ghasi from his wedlock with first wife Dulli, whereas plaintiff No.2 is

second wife of Ghasi, which according to the plaintiffs, claimed to

have entered into marriage with Ghasi in chudi form during the

lifetime of Dulli. Suddu – plaintiff No.1, son of Ghasi with his

second wife Ghasnin, and Ghasnin filed suit that the suit property

was inherited by Ghasi from his father, as such, after death of

Ghasi, the plaintiffs and defendant No.1 have inherited the property

and are entitled for share in the suit property and the sale deed

executed by defendant No.1 in favour of defendants No.2, 3 and 4
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is null and void. The defendants filed written statement in which the

principal plea taken is the plea of denial.

4. The trial Court after appreciating oral and documentary evidence on

record, came to the conclusion that plaintiff No.2 Ghasnin was

married to Ghasi in chudi form and plaintiff No.1 is son of Ghasi

with his second wife Ghasnin and each one are entitled for ⅓ share

in the suit property. On appeal being preferred by the defendants,

the first appellate Court reversed that finding and held that

relationship of father and son between plaintiff No.1 and Ghasi is

not established and set-aside the decree against which second

appeal has been preferred by plaintiff No.1 in which substantial

questions of law have been framed which have been set-out in the

opening paragraph of this judgment.

5. Mr. Vishnu Koshta, learned counsel appearing for the plaintiff /

appellant, would submit that the first appellate Court is absolutely

unjustified in setting aside and reversing the well-reasoned

judgment and decree of the trial Court, as plaintiff No.1 is son of

Ghasi out of his wedlock with Ghasnin though in chudi form,

therefore, he will be entitled for ⅓ share in the suit property. He

would further submit that in case the plaintiff is even held to be the

illegitimate son then also by virtue of Section 16(3) of Hindu

Marriage Act, 1955, he would be entitled to share in the suit

property left by his father Ghasi. As such, the judgment and decree

of the first appellate Court be set-aside and that of the trial Court be

restored.

6. Mr. Rajkumar Pali, learned counsel appearing for the defendants /
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respondents No.1 and 2, would submit that the plaintiff has failed to

establish his relationship with Ghasi as his son, therefore, the first

appellate Court has rightly set-aside the judgment and decree of

the trial Court and dismissed the suit which deserves to be upheld.

He would further submit that defendants No.2 and 3 are bona fide

purchasers of the suit land, therefore, their interest be protected. He

would draw the attention of the Court that by order dated 17-8-

1999, the trial Court has declared that the statement of Ghasnin

shall not be read into evidence, as she did not appear for further

examination pursuant to the order of the trial court.

7. Mr. Ratan Pusty, learned Advocate appearing as amicus curiae, has

brought to the notice of the Court the legal position qua Section

16(1) of the Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’).

8. I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

9. It is not in dispute that defendant No.1 Rohidas is son of Ghasi from

his first and legally wedded wife Dulli. It is also not in dispute that

said Ghasi entered into second marriage with Ghasnin, who was

earlier arrayed as plaintiff No.2 in the suit, during the lifetime of Dulli

and subsistence of first marriage. Therefore, the marriage of

Ghasnin with Ghasi was void under Section 11 of the Act of 1955 in

view of the contravention of clause (i) of Section 5 of the Act of

1955, but by virtue of the provisions contained in Section 16 (3) of

the Act of 1955, children born out of the void marriage namely,

plaintiff No.1 herein, though would be branded as illegitimate son of
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Ghasi, would still be entitled to inherit the self-acquired property of

Ghasi and he will be treated as legitimate for all practical purposes

including succession.

10. At this stage, it would be appropriate to quote here Section 16 of

the Act of 1955 which states as under: –

“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.

(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.”

11.The above-quoted provision contains a legal fiction. It is by a rule

of fictio juris that the legislature has provided that children, though

illegitimate, shall, nevertheless, be treated as legitimate

notwithstanding that the marriage was void or voidable. In the

matter of Parayankandiyal Eravath Kanapravan Kalliani Amma
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(Smt) and others v. K. Devi and others 1, the Supreme Court,

while dealing with the question as to whether illegitimate children

were entitled to succeed the property of their parents, has held that

by virtue of Section 16 of the Hindu Marriage Act, 1955 illegitimate

children out of wedlock of the void second marriage would inherit

share in the property of their parents by operation of Section 16 of

the Act of 1955. Paragraphs 80 and 82 of the report state as

under:–

“80. When an Act of Parliament or a State legislature
provides that something shall be deemed to exist or
some status shall be deemed to have been acquired,
which would not have been so acquired or in existence
but for the enactment, the Court is bound to ascertain the
purpose for which the fiction was created and the parties
between whom the fiction was to operate, so that full
effect may be given to the intention of the legislature and
the purpose may be carried to its logical conclusion.
(See: J.K. Cotton Spg. Wvg. Mills Ltd. v. Union of
India2; American Home Products Corpn. v. Mac
Laboratories (P) Ltd.3)

82. 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.”

12. Thereafter, the Supreme Court in the matter of Rameshwari Devi

v. State of Bihar and others 4, has held as under:–

“14. It cannot be disputed that the marriage between
Narain Lal and Yogmaya Devi was in contravention of
clause (i) of Section 5 of the Hindu Marriage Act and was
a void marriage. Under Section 16 of this Act, children of
a void marriage are legitimate. Under the Hindu
Succession Act, 1956, property of a male Hindu dying
intestate devolves firstly on heirs in clause (1), which
1 (1996) 4 SCC 76
2 1987 Supp SCC 350
3 (1986) 1 SCC 465
4 (2000) 2 SCC 431
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include the widow and son. Among the widow and son,
they all get shares (see Sections 8, 10 and the Schedule
to the Hindu Succession Act, 1956). Yogmaya Devi
cannot be described as a widow of Narain Lal, her
marriage with Narain Lal being void. The sons of the
marriage between Narain Lal and Yogmaya Devi being
the legitimate sons of Narain Lal would be entitled to the
property of Narain Lal in equal shares along with that of
Rameshwari Devi and the son born from the marriage of
Rameshwari Devi with Narain Lal. …”

13. In the matter of Jinia Keotin and others v. Kumar Sitaram

Manjhi and others 5, the Supreme Court held that while engrafting

a rule of fiction in Section 16 of the Act of 1955, the illegitimate

children have become entitled to get share only in self-acquired

properties of their parents. It was held as under: –

“4. … 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 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 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.

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
5 (2003) 1 SCC 730
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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 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.
Consequently, we are unable to countenance the
submissions on behalf of the appellants …”

14. This view has been approved and followed by the Supreme Court in

the matter of Neelamma and others v. Sarojamma and others 6

and it has been held that illegitimate children would be entitled to

share the self-acquired property of parent and not entitled to the

joint Hindu Family Property. Further, in the matter of Bharatha

Matha and another v. R. Vijaya Renganathan and others 7 the

same view has been reiterated.

15. This Court in the matter of Sajeevan Das and another v. Tirith

Bai and others 8 has followed the principles laid down by their

Lordships of the Supreme Court in Parayankandiyal Eravath

Kanapravan Kalliani Amma (supra), Rameshwari Devi (supra),

Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha
6 (2006) 9 SCC 612
7 AIR 2010 SC 2685
8 2014(3) C.G.L.J. 360
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(supra).

16. Recently, in the matter of Union of India and another v. V.R.

Tripathi 9, Dr. D.Y. Chandrachud, J. speaking for the Supreme

Court, considering the provisions contained in Section 16 of the Act

of 1955, has clearly held that children who are born from a null and

void marriage, will have a right in the property only of the parents

and none other than the parents. Paragraph 15 of the report states

as under: –

“15. In sub-section (1) of Section 16, the legislature has
stipulated that a child born from a marriage which is null
and void under Section 11 is legitimate, regardless of
whether the birth has taken place before or after the
commencement of Amending Act 68 of 1976. Legitimacy
of a child born from a marriage which is null and void, is
a matter of public policy so as to protect a child born from
such a marriage from suffering the consequences of
illegitimacy. Hence, though the marriage may be null and
void, a child who is born from the marriage is
nonetheless treated as legitimate by sub-section (1) of
Section 16. One of the grounds on which a marriage is
null and void under Section 11 read with clause (i) of
Section 5 is that the marriage has been contracted when
one of the parties had a spouse living at the time of
marriage. A second marriage contracted by a Hindu
during the subsistence of the first marriage is, therefore,
null and void. However, the legislature has stepped in by
enacting Section 16(1) to protect the legitimacy of a child
born from such a marriage. Sub-section (3) of Section
16, however, stipulates that such a child who is born from
a marriage which is null and void, will have a right in the
property only of the parents and none other than the
parents.”

17. A conspectus of the aforesaid authorities referred to herein-above

reveals that it has been laid down by Their Lordships of the

Supreme Court that illegitimate children would be entitled to inherit

the self-acquired property of their parents and not the joint Hindu

family property of their parents.

9 2018 SCC OnLine SC 3097
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18. Now, the question is, what is the nature of the suit property herein

which is the subject matter in dispute in the case in hand.

19. The plaintiffs in the plaint, in para 6, have clearly stated that the suit

property was inherited by Ghasi from his father Bendu and after

death of his father Ghasi, the plaintiffs and defendant No.1 have

inherited the suit property.

20. The Supreme Court in the matter of Shyam Narayan Prasad v.

Krishna Prasad and others 10 has clearly held that the property

inherited by a male Hindu from his father, father’s father or father’s

father’s father is an ancestral property and observed as under: –

“12. It is settled that the property inherited by a male
Hindu from his father, father’s father or father’s father’s
father is an ancestral property. The essential feature of
ancestral property, according to Mitakshara Law, is that
the sons, grandsons, and great grandsons of the person
who inherits it, acquire an interest and the rights attached
to such property at the moment of their birth. The share
which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male issue.
After partition, the property in the hands of the son will
continue to be the ancestral property and the natural or
adopted son of that son will take interest in it and is
entitled to it by survivorship.”

21. As such, the nature of the property which Ghasi had in his hands

and which is the suit property, is clearly an ancestral property and it

was not the self-acquired property of Ghasi and therefore the

plaintiff who is illegitimate son of Ghasi would not be entitled to get

share in the ancestral property of his father.

22. Faced with this situation, Mr. Koshta, learned counsel, submits that

the Supreme Court in the matter of Revanasiddappa and another

10 (2018) 7 SCC 646
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v. Mallikarjun and others 11 has doubted the correctness of the

view taken earlier by the Supreme Court in Parayankandiyal

Eravath Kanapravan Kalliani Amma (supra), Rameshwari Devi

(supra), Jinia Keotin (supra), Neelamma (supra) and Bharatha

Matha (supra) and referred the matter to larger Bench which is

pending consideration. As such, the plaintiff is also entitled for

share in the self-acquired property of his father or the matter may

be deferred till the reference is answered by the larger Bench.

23. In the matters of State of Uttar Pradesh v. Jal Bir Singh 12 and

State of Maharashtra and another v. Sarva Shramik Sangh,

Sangli and others 13, the Supreme Court has held that the principle of

law laid down in the matter of Bangalore Water Supply Sewerage

Board v. A. Rajappa and others 14 is binding until reference is

answered and held that the determination of the present pending

industrial dispute cannot be kept undecided until the judgment of the

larger Bench is delivered. It was observed as under:-

“27. It is, however, contended on behalf of the appellant
that the said undertaking was being run by the irrigation
department of the first appellant, and the activities of the
irrigation department could not be considered to be an
“industry” within the definition of the concept under Section
2(j) of the I.D. Act. As noted earlier, the reconsideration of
the wide interpretation of the concept of “industry” in
Bangalore Water Supply and Sewerage Board (supra) is
pending before a larger bench of this Court. However, as of
now we will have to follow the interpretation of law
presently holding the field as per the approach taken by
this Court in State of Orissa v. Dandasi Sahu (supra),
referred to above. The determination of the present
pending industrial dispute cannot be kept undecided until
the judgment of the larger bench is received.”

24. Similarly, in the matter of Ashok Sadarangani and another v. Union

11 (2011) 11 SCC 1
12 (2017) 3 SCC 311
13 (2013) 16 SCC 16
14 (1978) 2 SCC 213
S.A.No.402/2002

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of India and others 15 the Supreme Court relying upon the judgment

rendered in the matter of Harbhajan Singh v. State of Punjab 16 has

further held that the pendency of a reference to a larger Bench, does

not mean that all other proceedings involving the same issue would

remain stayed till a decision was rendered in the reference. It was

observed as under:-

“29. As was indicated in Harbhajan Singh case (supra),
the pendency of a reference to a larger Bench, does not
mean that all other proceedings involving the same issue
would remain stayed till a decision was rendered in the
reference. The reference made in Gain Singh v. State of
Punjab17 need not, therefore, detain us. Till such time as
the decisions cited at the Bar are not modified or altered in
any way, they continue to hold the field.”

25. In view of the principles of law laid down by the Supreme Court in

the aforesaid judgments (supra), this Court is of the opinion that the

judgment of the Supreme Court in Parayankandiyal Eravath

Kanapravan Kalliani Amma (supra), Rameshwari Devi (supra),

Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha

(supra) holding the field that the illegitimate son is entitled only for

share in the self-acquired property of his father by virtue of Section

16(3) of the Act of 1955 can be followed by this Court while

answering the substantial questions of law formulated in this

appeal.

26. Now, reverting to the facts of the present case in the light of the

principles of law laid down in the above-stated judgments (supra), it

is quite vivid that though the plaintiff is illegitimate son of Ghasi,

born out of the void second marriage of Ghasi with Ghasnin, but by

virtue of Section 16(3) of the Act of 1955, he would be entitled only
15 (2012) 11 SCC 321
16 (2009) 13 SCC 608
17 (2010) 15 SCC 118
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to share the self-acquired property of his father Ghasi and the suit

property admittedly, being the ancestral property of Ghasi which he

had received from his father Bendu, the plaintiff is not entitled to

claim share in the suit property and judgments decrees of the two

Courts below are maintained though for different reasons assigned

herein-above.

27. Accordingly, the appeal is partly allowed and it is held that though

the plaintiff is illegitimate son of Ghasi, but yet, he is not entitled for

share in the suit property. The Judgment and decree passed by the

first appellate Court is accordingly modified and the substantial

question of law is answered accordingly. No order as to cost(s).

28. Decree be drawn-up accordingly. This Court expresses gratitude

for the valuable assistance rendered by learned amicus curiae.

Sd/-

(Sanjay K. Agrawal)
Judge
Soma