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Vasant Ramchandra Alias Chander … vs Gurudas Vasantrao Yelvande And … on 16 April, 2018

Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.861 OF 2014

1. Vasant Ramchandra alias Chander ]
Yelvande, Age : 50 years. ]
2. Pushpa Vasant Yelvande, Age : 45 years. ]
3. Samadhan Vasant Yelvande, Age : 23 years. ]
4. Yogesh Vasant Yelvande, Age : 22 years. ]
5. Tai Vasant Yelvande, Age : 21 years. ] …. Applicants /
All residing at : Phandkevsati, ] [ Org. Defendant
At Post : Nidhoje, Taluka : Khed, Dist. Pune. ] Nos.1 to 5]
Versus
1. Gurudas Vasantrao Yelvande, Age : 24 years. ]
2. Bhanudas Vasantrao Yelvande, Age : 20 years. ]
3. Sindhubai Vasant Yelvande, Age : 45 years. ]
All Agriculturists, all residing at : Kadachiwadi,]
Post : Chakan, Taluka : Khed, District : Pune. ]
4. Kamal Sambhaji Marathe, Age : 44 years. ]
5. Laxmibai Shankar Pawar, Age : 52 years. ]
6. Tanhaji Sambhaji Marathe, Age : 25 years. ]
7. Dinkar Maruti Phadke, Age : 40 years. ]
8. Sopan Raghunath Phadke, Age : 42 years. ]
9. Govind Laxman Phadke, Age : 55 years. ]
10. Namdeo Laxman Phadke, Age : 50 years. ]
11. Balu Laxman Phadke, Age : 45 years. ]
12. Shivaji Shankar Phadke, Age : 46 years. ]
13. Baban Shankar Phadke, Age : 48 years. ]
14. Vilas Shankar Phadke, Age : 50 years. ]
15. Ramdas Shankar Phadke, Age : 36 years. ]
16. Kailas Shankar Phadke, Age : 32 years. ]

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17. Shakuntala Sopan Jadhav, Age : 60 years. ]
18. Baidabai Nivrutti Phuge, Age : 55 years. ]
19. Sarubai Tahnaji Tapkir, Age : 40 years. ]
20. Samudra Sopan Yelvande, Age : 36 years. ]
21. Nirmala Netaji Tingre, Age : 44 years. ]
22. Rakmabai Shankar Phadke, Age : 70 years. ]
23. Shantaram Nivrutti Phadke, Age : 60 years. ]
24. Ashabai Patilbua Tapkir, Age : 55 years. ]
25. Murlidhar Baban Phadke, Age : 60 years. ]
26. Yeshvant Baban Phadke, Age : 50 years. ]
27. Vimal Baban Phadke, Age : 55 years. ]
Respondent Nos.4 and 6 residing at : Maruti ]
Landge Chawl, Kaasarwadi, Pune-38. ]
Respondent No.5 residing at : Parvati Paytha, ]
Near Janta Datt Mandir, Uma Shankar ]
Meetwale Vasahat, Pune – 9. ]
Respondent Nos.7 to 16, 22, 23 and 25 to 27 ]
residing at : Phadke Vasti, Village – Nigoje, ]
Taluka – Khed, District – Pune. ]
Respondent No.17 residing at : ]
At Post – Nanekarwadi, Post – Chakan, ]
Taluka Khed, District Pune. ]
Respondent No.18 residing at : ]
Beside Mankikar Hospital, Pune-Nashik ]
National Highway-20, Bhosari, Pune. ]
Respondent No.19 residing at : Tapkir Vasti, ]
Charholi Khurd, Tal. Haveli, Dist. Pune. ]
Respondent No.20 residing at Jamdar Khore, ]
Nigoje, Tal. Khed, Dist. Pune. ]
Respondent No.21 residing at : Dhanori, Near ]
Bus Stop, Tal. Haveli, Dist. Pune. ]
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Respondent No.24 residing at Patilbua Vasti, ]
Charholi Khurd, Tal. Haveli, Dist. Pune. ] …. Respondents

Mr. Shailendra S. Kanetkar for the Applicants.
Mr. B.K. Barve, a/w. Mr. Sandip Barve and Ms. Shital Tanpure, i/by
M/s. B.K. Barve Co., for the Respondents.

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 16 TH APRIL, 2018.

ORAL JUDGMENT :

1. Heard Mr. Kanetkar, learned counsel for the Applicants, and Mr.

Barve, learned counsel for the Respondents.

2. By this Revision Application, filed under Section 115 of the Civil

Procedure Code, 1908, the Applicants are challenging the order dated

2nd May 2014 passed by the Joint Civil Judge, Junior Division, Khed,

below the application at “Exhibit-43” filed in Regular Civil Suit No.134 of

2004.

3. The application at “Exhibit-43” was filed by the present Applicants,

who are Defendant Nos.1 to 5 before the Trial Court, under Order 7 Rule

11(d) of CPC, for rejection of the plaint on the ground that the Suit is

barred by law.

4. In order to appreciate the submissions advanced at bar by learned
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counsel for both the parties, it would be essential to recite few facts of

the case.

. Respondent Nos.1 to 3 herein had filed the Suit before the Trial

Court for partition and separate possession of their share in the suit

property on the ground that, these properties are the ancestral joint

family properties of the present Applicant No.1, who is the father of

Respondent Nos.1 and 2 and husband of Respondent No.3. In paragraph

No.1 of the plaint, the Respondents have described the suit properties,

which consist of the agricultural lands and the house properties. In

paragraph No.2 thereof, it is categorically stated that, the suit properties

are the ancestral joint family properties of the Applicants and the

Respondents herein. It was further stated that, the suit properties were

originally owned by the father of the present Applicant No.1, namely,

Ramchandra @ Chander, who has died, while in the joint family, on 25 th

June 1985. After his death, his wife Shevantabai has also died, when the

family was joint, on 14th July 2003. During his life-time, Ramchandra

was looking after the management of the ancestral joint family

properties, being the ‘Karta’ thereof. Thereafter, Applicant No.1-Vasant

was looking after the same. Ramchandra has, apart from Applicant No.1

as his son, Original Defendant Nos.6 and 7 as his daughters. Applicant

No.1-Vasant has married with Applicant No.2-Pushpa and also with

Respondent No.3-Sindhubai. Out of his wedlock with Applicant No.2-

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Pushpa, he has two sons and one daughter by name Samadhan, Yogesh

and Taee; whereas, out of his marriage with Respondent No.3-Sindhubai,

he has two sons by name Gurudas and Bhanudas. According to the

Respondents, all of them are still in the joint family and enjoying the

ancestral properties of the joint family in common.

5. In paragraph No.3 of the plaint, the Respondents-Plaintiffs had

given the genealogy, which is described as above. Paragraph No.4 of the

plaint is very relevant. It is stated therein that, Applicant No.1-Vasant

had initially married with Applicant No.2-Pushpa; however, as Pushpa

did not conceive any child, Applicant No.1-Vasant separated from his

wife Pushpa. Then Pushpa went to reside in the house of her parents.

Thereafter, Applicant No.1-Vasant performed marriage with Respondent

No.3-Sindhubai and started residing with her. Out of the said wedlock, he

had Respondent Nos.1 and 2 as his children. Thereafter, Vasant brought

back Pushpa and started residing with Pushpa and had Applicant Nos.2

to 4 as his children from Pushpa.

6. In paragraph No.5 of the plaint, it is stated that, thereafter, Vasant

started creating third party interest in the suit properties. He has also

got a bogus ‘Sale-Deed’ and ‘Gift-Deed’, dated 4 th January 2001 and 23rd

January 2001, respectively, executed of some portion of the suit

properties, which are false, void ab initio and, therefore, not binding on

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their shares. Thus, the Suit was filed by the Respondents-Plaintiffs for

the relief of partition of their one half share in the suit properties and

also for a declaration that the ‘Sale-Deed’ dated 4th January 2001 and

the ‘Gift-Deed’ dated 23rd January 2001 are not binding on their shares.

7. The Applicants, who are Defendant Nos.1 to 5 before the Trial

Court, have, on their appearance, filed the application before the Trial

Court, under Order 7 Rule 11(d) CPC for rejection of the plaint,

contending inter alia that, as the Respondent-Plaintiff Nos.1 and 2 are

the children born out of the second marriage of Applicant No.1-Vasant,

that marriage being illegal, null and void, Respondent Nos.1 and 2

cannot receive any share in the ancestral joint family properties of

Vasant and, therefore, they had no locus-standi to file such Suit for

partition and declaration, at-least during the lifetime of their father-

Vasant. The Suit, as filed, is, therefore, not maintainable and

preliminary issue to that effect be framed.

8. The Trial Court has, accordingly, vide its order dated 3 rd March

2010, framed the preliminary issue as to “whether the Suit is

maintainable, as framed?”

9. In the light of the submissions advanced before it by learned

counsel for both the parties, the Trial Court was pleased to hold in

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paragraph No.11 of its impugned order that, at this stage, the nature of

the suit properties is yet not decided and that can be decided only at the

time of final hearing of the Suit. It being, therefore, a mixed question of

law and fact, it would not be correct at this preliminary stage itself to

hold that the Suit is not maintainable. Accordingly, the Trial Court has

rejected the said application.

10. In the light of these facts on record, which are stated in the plaint

itself and which are to be considered as sine qua non for deciding the

application under Order 7 Rule 11(d) of CPC, it has to be held that, in my

considered opinion, the averments made in the plaint are more than

eloquent and sufficient to show that Defendant No.1, i.e. Applicant No.1-

Vasant, has performed two marriages. His first marriage was,

admittedly, with Applicant No.2-Pushpa; whereas, his second marriage,

during the lifetime of Pushpa and during subsistence of his marriage

with Pushpa, was with Respondent No.3-Sindhubai. Thus, on the plain

reading of the averments made in the plaint, as stated in paragraph No.4

thereof, Respondent No.3-Sindhubai is the second wife; whereas,

Applicant No.2-Pushpa is the first wife of Vasant. The children born from

Sindhubai are, thus, born from the wedlock, which is void ab initio, the

said marriage being performed during the lifetime of first wife-Pushpa

and during the subsistence of the first marriage of Pushpa.

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11. In such situation, the question raised for consideration is, ‘whether

Respondent Nos.2 and 3, who are the children born from Respondent

No.3, namely, the second wife-Sindhubai, can get any share in the

ancestral joint family properties of Applicant No.1-Vasant, when, as per

the own showing of the Respondents-Plaintiffs also, all the suit

properties are the ancestral joint family properties of Vasant and as on

today also, partition has not been effected between Vasant and his

sisters?’

12. According to learned counsel for the Respondents, Respondent

Nos.2 and 3 are, though the children of a void marriage, they are

entitled to share in the properties of their father, as Section 16 of the

Hindu Marriage Act, 1955, as amended in 1976, specifically provides

that, “children of a marriage, which is void, are not to be regarded as

illegitimate, but are to be regarded as legitimate” and they are further

conferred right in the property of their parents, in view of Section 16(3)

of the Hindu Marriage Act, 1955.

13. Per contra, according to learned counsel for the Applicants,

Respondent Nos.2 and 3 being the children born out of second marriage,

they can be entitled to share only in the individual property of their

father, but they cannot get any share in the ancestral joint family

properties of their father. Secondly, assuming that they are having

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share in the ancestral joint family properties of their father, their right

will arise only by way of succession and not during the lifetime of their

father. Therefore, at this stage, when their father, i.e. Applicant No.1-

Vasant, is alive, their Suit for partition cannot be maintainable. Hence,

the plaint is liable to be rejected, being barred by law.

14. In my considered opinion, in order to understand and appreciate

the legal matrix involved in this case, it would be useful to refer to

Section 16 of the Hindu Marriage Act, 1955, which is 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

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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.”

[ Emphasis Supplied ]

15. Thus, as per the legal position, as it stands today, the legitimacy is

definitely conferred on the children born out of a void marriage, which

has been declared to be so in proceedings under the Hindu Marriage Act

and also to the children of such a marriage, whether it has been so

declared or not in a proceeding under the Act.

16. The real question for consideration, however, is, ‘what effect it has

so far as 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?’ ; and as in this

case, whether such children claim their share in the property during the

lifetime of their father?

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17. These provisions of Section 16 of the Hindu Marriage Act, 1955,

have been subject matter of interpretation in various decisions of this

Court, other High Courts and also of the Hon’ble Supreme Court. Learned

counsel for the Applicants has also, in this respect, placed reliance on

the Judgment of the Division Bench of this Court in the case of

Shantaram Tukaram Patil and Anr. Vs. Smt. Dagubai Tukaram Patil and

Ors., 1987 (1) Bom.C.R. 714. Therein, after taking the review of all its

earlier decisions, the Division Bench of this Court, in paragraph No.18,

was pleased to hold that,

18. “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.”

18. Then, in paragraph No.24 of the said Judgment, it was further held

that,

“24. 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.”

19. In paragraph No.27 of the Judgment, the Division Bench has

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summarized propositions of law emerging from its discussion as

follows :-

“I. In regard to a child of a void marriage :

(1) A child of a marriage, which is void under the
provisions of
Hindu Marriage Act, whether a decree
of nullity is passed or not, is a legitimate child
[
Section 16(1) of Hindu Marriage Act];

(2) Such a child does not acquire right to property, which
a legitimate child would, but the legitimacy confers
upon him right to property of his parents. [
Section
16(3) of Hindu Marriage Act];

(3) The property, to which such a child can lay claim,
must be the separate property of the parents and not
the coparcenary property, in which the parent has a
share. (Contrary view in (
Raghunath V. Nana),
LXXXVII Bom.L.R. 488, is not the correct law);

(4) Since no child, whether legitimate or otherwise,
acquires right by birth in the separate property of its
parent, a child of a void marriage can only succeed to
the property of its parent in accordance with the
provisions of
Section 8 or Section 15 of the Hindu
Succession Act;

(5) A child of a void marriage is related to its parent
within the meaning of
Section 3(1)(j) of the Hindu
Succession Act, because of the provisions of
Section
16 of the Hindu Marriage Act; proviso to
Section 3(1)

(j) must be confined to those children, who are not
clothed with legitimacy, under
Section 16 of the
Hindu Marriage Act.”

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20. Thus, in this Judgment, it is authoritatively laid down that the

children of a void marriage, though are regarded as legitimate, such

children would not be entitled to any share in the properties, which are

the ancestral co-parcenary joint family properties of their father. Their

right to claim share remains limited only to the extent of the separate

property of their father, but, in that property, they cannot make any

claim to it during the lifetime of their father. Their rights in the separate

properties of their father will accrue only on the death of the father and

that too, by way of succession.

21. Though the Andhra Pradesh High Court in the case of Rasala

Surya Prakasarao and Ors. Vs. Rasala Venkateswararao and Ors., AIR

1992 ANDHRA PRADESH 234, has taken the view that, the illegitimate

sons are even entitled to equal shares with natural sons and can be

treated as coparceners; it has also confirmed the view that they cannot

claim partition during their father’s lifetime. In paragraph No.33 of the

said Judgment, it was held as follows :-

“33. From the principles enunciated in the various decisions
discussed above, it is quite clear that even prior to the
advent of
S. 16 of the Hindu Marriage Act, both, as per
the Shastraic and Textual Law as well as the decisions of
the highest Courts, the illegitimate son of a Sudra is
entitled to enforce a partition after the father’s death. He
is entitled to the rights of survivorship as he becomes a
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coparcener with the legitimate son. The decisions have
held that, he is a member of the family and that he has
status as a son and by virtue of that, he is entitled to the
right of survivorship.
Section 16 of the Hindu Marriage
Act has conferred on him the status of a legitimate son
and his other pre-existing rights are, in no way, curtailed.
After the 1976 Amendment of
Section 16, the benefits of
Section 16 are enlarged and such benefits are also
conferred on a son of a marriage, which is void under the
provisions of the
Hindu Marriage Act, whether a decree
of nullity is passed or not, such a son becomes a
legitimate son. Such a child is also entitled to rights of
succession under the
Hindu Succession Act. A child of
void marriage is related to its parents within the meaning
of
S. 3(1)(j) of the Hindu Succession Act by virtue of S.
16 of the Hindu Marriage Act. Proviso to
Section 3(1)(j)
must be confined to those children, who are not clothed
with legitimacy under
S. 16 of the Hindu Marriage Act. In
conclusion, we hold that, by virtue of
S. 16(1) of the
Hindu Marriage Act, as amended in 1976, the illegitimate
son can be equated with his natural sons and treated as
coparceners for the properties held by the father,
whether the property be originally joint family property
or not. The only limitation is that during the lifetime of
the father, the illegitimate son of a void marriage is not
entitled to seek a partition. He can seek a partition only
after the death of the father.”

[ Emphasis Supplied ]

22. In the case of Jinia Keotin and Ors. Vs. Kumar Sitaram Manjhi and

Ors., (2003) 1 SCC 730, the Hon’ble Supreme Court had an occasion to

deal with these provisions. Therein, after considering the amendment to

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Section 16(3), as amended by Act 68 of 1976, the Hon’ble Supreme

Court was pleased to consider the object, scope and sweep of Section

16(3) of the Act, 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
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

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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
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.”

23. 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

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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 views of the Andhra Pradesh High Court,

favouring wide interpretation, were found contrary to its Scheme by the

Hon’ble Supreme Court.

24. Relying on this Judgment of the Apex Court in the case of Jinia

Keotin and Ors. Vs. Kumar Sitaram Manjhi and Ors. (Supra) , learned

Single Judge of this Court, [Coram: B.P. Dharmadhikari, J.], in the case

of Gayabai wd/o. Sakharam Jambhulkar and Ors. Vs. Gopal Sakharam

Jambhulkar and Anr., 2008 (4) Mh.L.J. 286 , was pleased to hold that,

Section 16(3) confers upon a child of a void marriage, rights only in or

to the property of his parents. The concluding part of this sub-section

also makes it clear that, no new rights are being made available and,

therefore, if something is denied to such child, because it is not

legitimate child of his parents, such rights are not being conferred by

Section 16 upon him. It was held that, in view of this limited sweep of

sub-section (3) of Section 16, though legitimacy has been given to

illegitimate children, it is only for the purposes of succeeding to the

properties of parents and nothing more.

25. In view of this decision of the Apex Court in the case of Jinia

Keotin Ors. Vs. Kumar Sitaram Manjhi and Ors. (Supra) , the

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Karnataka High Court, in the case of Kenchegowda Vs. K.B. Krishnappa

and Ors., 2009 (1) Civil LJ 141 , was again pleased to hold, in the light of

the facts similar to this case, wherein the Suit was filed for partition by

the illegitimate son against his father, that,

“By Section 16, what the Parliament intended to do was to
remove the stigma of bastardliness attached to a child born of
such void marriage and the child has been relegated the status of
a legitimate child. Therefore, after the
Amendment Act, 1976,
which introduced
Section 16 into the Act, the illegitimate son has
been given equal status as that of a legitimate son. That is
precisely what is sought to be done under
Section 16(1) and (2)
of the Act. However, the Parliament was conscious of the
consequences of such status being given to an illegitimate child,
as it would affect other persons, who are in no way responsible
for the birth of an illegitimate child. Therefore, they made it clear
by introducing
Section 16(3) to the effect that such an
illegitimate son, who is admitted to be a legitimate son, by virtue
of
Section 16(1) and (2), will have a right only in the properties
of the parents and none else. Thus, the conferring of the status
did not affect the rights of the persons other than the parents in
the property.” [ Emphasis Supplied ]

26. Thereafter, taking review of its earlier decisions, it was held in

paragraph No.23 as under :-

“Therefore, it follows that, Section 16 of the Act contains a legal
fiction. It is by a rule of ‘fiction juris’ that the legislature has
provided that, children, though illegitimate, shall nevertheless,
be treated as legitimate notwithstanding that the marriage was
void or voidable. However, it is a legal fiction with limitation.

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The reason behind such limitation is that the Parliament had no
intention of eclipsing the settled concepts of Hindu Law such as
coparcenary, coparcener, coparcenary property, joint family
and joint family property, right of coparcener to acquire by
birth and interest in the coparcenary or joint family property,
under Mitakshara Law. Therefore, the object sought to be
achieved by this provision is two fold. Firstly, the restoration of
status. For the act of the parents over which the innocent child
had no control and for no fault of it, had to suffer a permanent
set back in life and being called a bastard, an illegitimate child.
This social evil was wiped out. For all practical purposes, the
child was treated as a legitimate child born out of a lawful
wedlock. Secondly, the cause for such a status of affair was
their parents. Therefore, in the properties of the parents equal
rights are given to such children, as that of the children born of
lawful wedlock. After achieving this twin object, the Parliament
took care to see that conferment of status and right to property
on the illegitimate child did not invade the rights of others, who
are also innocent and who are in no way responsible for this
sorry state of affairs. Thus, the illegitimate child covered by
sub-section (1) or (2) of
Section 16 of the Act, even on
conferment of legitimacy, was not allowed by law to claim equal
status under Hindu Law as that of a legitimate child. Though by
the aforesaid provision, 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 did not
acquire any right by birth in any property, much less,
coparcenary or joint family property. In the light of the express
words used in the provision, which clearly sets out the
legislative intent, in particular sub-section (3) of
Section 16,
any attempt on the part of the Courts to expand the scope of the
said provisions and confer rights on such child in coparcenary
or joint family property amounts to re-legislating on the subject,

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under the guise of interpretation, against the will of the
Parliament clearly expressed in the enactment itself. It is
impermissible. ” [ Emphasis Supplied ]

27. Thereafter analyzing the Scheme of Sections 6 and 8 of the Hindu

Succession Act, in paragraph Nos.29 and 30, the law is summed up as

follows :-

29. “If a legitimate son cannot file a suit claiming share in
respect of his father’s property, by virtue of
Section 8 of
the Succession Act, the illegitimate son, who has now
been conferred the status of a legitimate son also has no
right to claim a share in the father’s property by filing a
suit. In other words, during the lifetime of a father, a son,
legitimate or illegitimate, has no right to seek a share in
father’s property. Their right arises only after such
person dying intestate.” [ Emphasis Supplied ]

30. “The principle underlying the concept is that the property
to be divided is Ex. vi termini, the property, which has
been previously held as Joint Property in co-parcenary.
The son’s right at birth, under the Mitakshara Law, is so
connected with the right to share in and to obtain
partition of the estate, that it does not exist
independently of the latter right. Thus, under the Hindu
law, the son acquires right to co-parcenary property by
birth. In other words, he acquires title to the co-

parcenary property by birth. It is a vested right. It is that
right in the property i.e. the right to joint enjoyment of
the property, which is transformed into an enjoyment in
severally through the process of partition. It is that
antecedent title, which the members of a co-parcenary

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passes by birth jointly with other members of the co-
parcenary, which is specifically defined at the partition.
Existence of an antecedent title is a prerequisite for
enforcement of a right to partition. Separate or self-
acquired property of a member of the co-parcenary or
joint family cannot be the subject matter of partition
amongst the member of a co-parcenary or joint family. No
child, whether legitimate or illegitimate, acquires any
right by birth in the separate property or the self-
acquired property of its parents. Thus, they acquire no
title to such property by birth. They do not possess any
antecedent title to such property. The right to such
property accrues to them only on their parents dying
intestate. It is the death of the parents and not the birth
of the child, which confer right on such property. In
respect of such property, both, legitimate and illegitimate
child, succeed in accordance with the provisions of
Sections 8 and 15 of the Succession Act, if the parents die
intestate. It is only after the event i.e. death, the suit for
partition could be filed. Therefore, it follows that no suit
for partition could be filed against the parents during
their lifetime, in respect of separate self-acquired
property of parents. The illegitimate son is not a
coparcener. He has no right in coparcenary property.
However, he has a right in the share of the father in
coparcenary property. That right he can exercise only on
his father dying intestate. He has no right by birth in the
separate or self-acquired property of his parents. His
right accrues only after his parents die intestate.
Therefore, a son born of void or voidable marriage
(illegitimate son) can never maintain a suit in respect of
the property of his parent, against his or her parent.”

[ Emphasis Supplied ]

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28. Ultimately it was held that, the Plaintiff, who is a illegitimate son,

though has a right in the share of his father in coparcenary or joint

family property, to get the said right, he has to wait for the death of his

father. He cannot maintain a suit against his father, claiming right in

those properties. Accordingly, it was held, in paragraph No.32, that;

32. “The lower Appellate Court was justified in holding that,
the suit filed by Plaintiff against his father is not
maintainable and also the suit filed by the Plaintiff
seeking partition in respect of the co-parcenary property
is also not maintainable.”

29. The latest, though not the last, pronouncement of the Hon’ble Apex

Court on this subject is of Revanasiddappa and Anr. Vs. Mallikarjun and

Ors., (2011) 11 SCC 1, wherein the Apex Court has again considered the

interpretation of Section 16(3) of the Hindu Marriage Act and after

taking the review of its earlier decisions and also of the above referred

decisions of the various High Courts, held that the view taken in Jinia

Keotin (Supra) was a narrow view of Section 16(3), which was followed

in Neelamma Vs. Sarojamma, (2006) 9 SCC 612 , holding that,

illegitimate children would only be entitled to a share in the self-

acquired property of the parents and not to the joint Hindu family

property. It was held by the Hon’ble Supreme Court in this decision that,

“we cannot accept the said interpretation” . In this decision, the Hon’ble

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Apex Court was pleased to take note of the changing social norms and

constitutional values. In the words of the Hon’ble Supreme Court,

30. With changing social norms of legitimacy in every
society, including ours, what was illegitimate in the past
may be legitimate today. The concept of legitimacy stems
from social consensus, in the shaping of which various
social groups play a vital role. Very often a dominant
group loses its primacy over other groups in view of ever
changing socio-economic scenario and the consequential
vicissitudes in human relationship. Law takes its own
time to articulate such social changes through a process
of amendment. That is why in a changing society, law
cannot afford to remain static. If one looks at the history
of development of Hindu Law, it will be clear that it was
never static and has changed from time to time to meet
the challenges of the changing social pattern in different
times.”

30. Thereafter, the Apex Court also considered the Constitutional

provisions of Article 300-A and Article 39-F, which deal with the

‘Concept of Property Rights’ and held that,

28. “The legislature has used the word “property” in Section
16(3) and is silent on whether such property is meant to
be ancestral or self-acquired.
Section 16 contains an
express mandate that such children are only entitled to
the property of their parents and not of any other
relation.”

29. “On a careful reading of Section 16(3) of the Act, we are
of the view that the amended section postulates that such
children would not be entitled to any rights in the

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property of any person, who is not his parent if he was
not entitled to them, by virtue of his illegitimacy, before
the passing of the amendment. However, the said
prohibition does not apply to the property of his parents.
Clauses (1) and (2) of
Section 16 expressly declare that
such children shall be legitimate. If they have been
declared legitimate, then they cannot be discriminated
against and they will be on a par with other legitimate
children and be entitled to all the rights in the property of
their parents, both self-acquired and ancestral. The
prohibition contained in
Section 16(3) will apply to such
children with respect to property of any person other
than their parents.” [ Emphasis Supplied ]

31. Thus, after considering and being inclined to give beneficial

interpretation to Section 16(3) of the Act and also the right to property,

which is enshrined in Article 300-A of the Constitution, then Article

39(f) of the Directive Principles of State Policy, the Apex Court was

pleased to hold that, Section 16(3), as amended, does not impose any

restriction on the property right of such children, except limiting it to

the property of their parents. Therefore, such children will have a right

to whatever becomes the property of their parents, whether self-

acquired or ancestral.

32. Ultimately, the Hon’ble Supreme Court has concluded as follows :-

46. “For the reasons discussed above, we are constrained to
take a view different from the one taken by this Court in

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Jinia Keotin, Neelamnma and Bharatha Matha on
Section 16(3) of the Act.”

47. “We are, therefore, of the opinion that the matter should
be reconsidered by a larger Bench and for that purpose
the records of the case be placed before the Hon’ble the
Chief Justice of India for constitution of a larger Bench.”

33. Even if this Reference before the Larger Bench is yet to be decided,

the fact remains that, as on today also, for the children born to the

second wife, who are rightfully called as ‘legitimate’, their right to get

share, whether in the co-parcenary Joint family properties or in the

property of their parents, arises only after the death of their parents and

not during the lifetime of their parents. Their right accrues by

succession and not by birth. Hence, during the lifetime of their parents,

they cannot claim share in it. Their Suit for partition of such property,

therefore, cannot be maintainable during the lifetime of their parents.

34. As in the present Suit, during the lifetime of Petitioner/Defendant

No.1-the father himself, the Respondents-Plaintiff Nos.2 and 3 are

claiming their one half share in the properties, which are, admittedly,

the ancestral joint family properties of Defendant No.1-Vasant, the Suit

is apparently barred by law, therefore, not maintainable.

35. Though learned counsel for the Respondents-Plaintiffs has placed

reliance on the Judgment of Division Bench of this Court in the case of

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Union of India and Anr. Vs. V.R. Tripathi, 2016 (5) ALL MR 28, however,

in my considered opinion, that Judgment cannot be applicable, as it is

arising from totally different facts and circumstances and it is not at all

concerned, in any way, to the issue involved in the present case. The

issue in the said Judgment was about the compassionate appointment,

which was claimed by the son born to a second wife. When the challenge

was raised thereto on the ground of ‘illegitimacy’, it was held that,

“Even though marriage with second wife may be void,
nevertheless, children of such marriage are legitimate and
hence, the said challenge is not tenable.”

36. The question raised in the present Suit is not whether the

Respondents-Plaintiffs are legitimate children or illegitimate children.

The question, ‘whether they are having the right in the suit properties’,

also need not detain this Court at this stage. As the question is, ‘whether

during the lifetime of their parents, namely, the father, can they claim

partition in the ancestral joint family properties of their father’? and the

answer to the said question, as stated above and as held by the Apex

Court also, is in ‘negative’.

37. Once it is held that the Suit of the present nature is not

maintainable, the next question for consideration is, ‘whether the plaint

can be rejected under Section 7 Rule 11 of CPC? In other words, “In

view of the legal position discussed above, can it be called as barred by

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any law?’; and ‘whether the word “law” includes the law laid down by the

Apex Court or only the statutory law?’.

38. In this respect, learned counsel for the Applicants has rightly

relied upon the Judgment of the Hon’ble Apex Court in the case of

Bharvagi Constructions and Anr. Vs. Kothakapu Muthyam Reddy

Ors., 2017 SCC OnLine SC 1053, wherein the Hon’ble Apex Court has

approved the view taken by the learned Single Judge of this Court, [B.P.

Colabawalla, J.], in the case of Shahid S. Sarkar and Ors. (Applicants), in

the matter between Usha Ramrao Bhojane Vs. Mangala Shivdas

Dandekar and Ors. (Defendants), 2017 SCC OnLine Bom 3440, and that

of the Allahabad and Gujarat High Court and held in paragraph No.32

that, the Law occurring in Clause (d) of Rule 11 of Order 7 CPC, includes

not only legislative enactments but also judicial precedents. An

authoritative judgment of the courts including higher judiciary is also

law. It, therefore, cannot be said that the term “barred by any law”

occurring in Clause (d) of Rule 11 of Order 7 of CPC ought to be read to

mean only the law codified in legislative enactment and not the judicial

precedents.

39. Thus, in this case, once it is held that the right of the children born

out of the second marriage, even in respect of the property of their

parents, far remain the joint family property of their father, accepting

that they are having right in the ancestral joint family properties also,

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such right will accrue only on the death of their father and in the present

case, as Applicant No.1-Vasant is very much alive, during his lifetime,

Respondent Nos.2 and 3 cannot have any right to seek partition.

Therefore, there is no cause of action, in the real sense, accrued to them

for filing the present Suit. Hence, this is a Suit, which is not only barred

by law, but also on the count that the meaningful reading of the plaint

does not disclose the real cause of action, as that cause of action will

accrue only on the death of Applicant No.1-Vasant and not during his

lifetime. Therefore, this is a case where the plaint needs to be rejected

under Order 7 Rule 11(a) and (d) of CPC.

40. The submission of learned counsel for the Respondents-Plaintiffs is

that, they are not only seeking the relief of partition, but they are also

seeking the relief of declaration relating to the ‘Sale-Deed’ and ‘Gift-Deed’

executed by Applicant No.1-Vasant, to be not binding on their share and

as regards this relief, it is submitted that, the Suit is required to be held

as maintainable. According to learned counsel for the Respondents, if

during the lifetime of Applicant No.1-Vasant, he continues to dispose of

the property by making such alienations, then the Respondents-

Plaintiffs will have no property even to seek partition thereof. Therefore,

according to learned counsel for the Respondents, as regards the relief of

declaration, it cannot be said that this relief is barred by any law or

there is no cause of action to file the Suit for such declaration.

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41. However, as rightly submitted by learned counsel for the

Applicants, even to claim this relief of declaration in respect of the ‘Sale-

Deed’ and the ‘Gift-Deed’, as a consequential and ancillary relief,

Respondents will have to show that they are having the right in the

properties of their father-Vasant during his lifetime. As stated above,

their right in the properties of their father-Vasant will arise only when

the succession opens on the death of Vasant and not during his lifetime.

In such situation, for this relief also, it cannot be said that, as on today,

they are having any right to sue.

42. Hence, as held above, their Suit is, at present, barred by law, which

is laid down in Section 16(3) of the Hindu Marriage Act and which is

also interpreted, as stated above, by the various Judgments of the High

Courts, including this Court and the Supreme Court. If their right to suit

property arises, when the succession opens on the death of their father,

then, during the lifetime of their father, they cannot claim any relief of

either the declaration or the partition in respect of their father’s share

in the ancestral joint family properties.

43. Therefore, when, apparently, the Suit is barred by law and in such

situation, the Trial Court has committed an error in holding that, there

is a mixed question of fact and law about the nature of the suit

properties. When on the own showing of the Respondents-Plaintiffs, as

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stated in the plaint, all the suit properties are the ancestral joint family

properties inherited by Defendant No.1-Vasant from his father

Ramchandra, then, there cannot be any mixed question of fact and law

about the nature of the properties. If, as per the plaint also, the

properties are the ancestral joint family properties, then, during the

lifetime of Applicant No.1-Vasant, the Respondents cannot get any share

therein and, therefore, there is no cause of action for filing the Suit. The

Suit, as filed, is expressly barred by law, as declared by the Hon’ble

Supreme Court. On this ground itself, the Trial Court should have

rejected the plaint. As the Trial Court has not done so, the impugned

order passed by the Trial Court is required to be quashed and set aside.

44. The Revision Application is, accordingly, allowed. The impugned

order passed by the Trial Court is quashed and set aside. As a result, the

plaint stands rejected, under Order 7 Rule 11(a) and (d) of CPC.

45. At this stage, learned counsel for the Respondents-Plaintiffs seeks

stay to the operation of this order, in order to enable the Respondents to

approach the Hon’ble Supreme Court. The request made being

reasonable, the operation of this Judgment and Order is stayed for a

period of twelve weeks from today, on account of Summer Vacation.

46. In consequence, the ad-interim relief granted by this Court, staying

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further proceedings and hearing of the Suit pending before the Trial

Court, which was granted vide order dated 28th November 2014 and

continued from time to time till today, is continued for a further period

of twelve weeks from today.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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