Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 814

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, MANOJ MISRA, JJ.
Revanasiddappa and Another – Appellants
Versus
Mallikarjun and Others – Respondents
Civil Appeal No. 2844 of 2011, Civil Appeal No. 7318 of 2014, Civil Appeal No. 4398 of 2019, Civil Appeal No. 2312 of 2021, SLP (C) No. 81 of 2016, SLP (C) Nos. 14176-14177 of 2016, SLP (C) No. 27834 of 2017, SLP (C) Nos. 23397-23398 of 2018, SLP (C) No. 1573-1574 of 2021
Decided On : 01-09-2023

Advocates appeared:
For the Appellant(s) : Ms. Kiran Suri, Sr. Adv. Mr. S.J. Amith, Adv. Ms. Aishwarya Kumar, Adv. Ms. Vidushi Garg, Adv. Mr. Purvesh Buttan, Adv. Dr. (Mrs.) Vipin Gupta, AOR Mr. TSR Venkataramana, Sr. Adv. Mr. G.S. Mani, Adv. Janaki Devi, Adv. Mr. Abhay Singh, Adv. Mr. Ramesh Singh Thakur, Adv. Mr. R. Sathish, AOR Ms. Manju Jetley, AOR Mr. Vivek Solshe, Adv. Mr. Amol B. Karande, AOR Mr. Narendra Rao Thaneer, Adv. Mr. Shivang Singh, Adv. Mr. Aditya Yadav, Adv. Ms. Palak Mathur, Adv. Mr. Varun Solshe, Adv. Mr. Satyajit A. Desai, Adv. Mr. Siddharth Gautam, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mr. Gajanan N. Tirthkar, Adv. Mr. Vijay Raj Singh Chouhan, Adv. Ms. Anagha S. Desai, AOR Mr. Sudhanshu S. Choudhari, AOR Ms. Jaikriti S. Jadeja, Adv. Vatsalya Vigya, Adv. Mr. Sdhakul R. Ghatole, Adv. Mr. Mahesh P. Shinde, Adv. Ms. Rucha A. Pande, Adv. Mr. Aman Shreyas, Adv. Mr. M. Veeraragavan, Adv. Ms. Yashaswimi Chauhan, Adv. Mr. Ranbir Singh Yadav, AOR Mr. Nikhil Majithia, AOR
For the Respondent(s): Ms. V. Mohana, Sr. Adv. Ms. Bhavya Pandey, Adv. Ms. Sreha Botwe, Adv. Mr. Abid Ali Beeran P, AOR Mr. Vivek Chib, Sr. Adv. Mr. B. Ragunath, Adv. Ms. N.C. Kavitha, Adv. Mr. Vijay Kumar, AOR Mr. A.I.S. Cheema, Sr. Adv. Mr. Kunal Cheema, AOR Ms. Ruchita Kunal Cheema, Adv. Mr. Shivam Dube, Adv. Mr. Raghav Deshpande, Adv. Ms. Abha R. Sharma, AOR Mr. Apoorv Kurup, AOR Mr. Chandra Prakash, AOR Mr. P.B. Suresh, Adv. Mr. Vipin Nair, AOR Mr. S. Rajappa, AOR Mr. Avinash B. Amarnath, AOR Mr. Mukesh K. Giri, AOR Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. Samrat Krishnarao Shinde, AOR Mr. Shirish K. Deshpande, AOR Ms. Rucha Preavin Mandlik, Adv. Ms. Harsimra Kaur Rai, Adv. Mr. Sharangouda N. Patil, Adv. Mr. Mohit Gautam, Adv. Mr. Apoorv Sharma, Adv. Mr. Harrish Ahmed, Adv. Mr. Shanthakumar V Mahale, Adv. Mr. Rajesh Mahale, AOR Ms. Jyotika Kalra, AOR Mr. Aditya Jha, Adv. Ms. Annvesh Deb, Adv. Mr. Lakshmi Raman Singh, AOR Mr. H. Chandra Sekhar, AOR Mr. Sriram P., AOR

IMPORTANT POINTS
(1) A child born from a voidable marriage which has been annulled, such a child will have rights to or in property of parents and not in property of any other person.
(2) When a Hindu dies after the commencement of the Amending Act of 2005, his interest in the property of a Joint Hindu family governed by Mitakshara law has to devolve by testamentary or intestate succession and not by survivorship.
(3) Shares are liable to increase with birth and reduce with death of a coparcener.

Headnote:
(A) Hindu Succession Act, 1956 – Section 16 – Hindu Marriage Act, 1955 – Section 11 – Succession rights of child born to parents whose marriage is null and void – In terms of Sub-Section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976 – Where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree – A child born from a voidable marriage which has been annulled, such a child will have rights to or in property of parents and not in property of any other person – As a consequence of substitution of Section 6, rule of devolution by testamentary or intestate succession of interest of a deceased Hindu in property of a Joint Hindu family governed by Mitakshara law has been made the norm – Once share of deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including children who have been conferred with legitimacy under Section 16 of HMA 1955, will be entitled to their share in property which would have been allotted to deceased upon notional partition, if it had taken place. (Para 54)
(B) Hindu Succession Act, 1956 – Section 6 [As substituted by Act 39 of 2005] – Devolution of interest in coparcenary property – Hallmark of a coparcenary is that a lineal male descendent up to third generation would acquire an independent right of ownership by birth and interest of a deceased member would lapse on his death and merge in coparcenary property – A member of coparcenary has a right to demand partition – Until partition, property is jointly owned by all and individual shares cannot be predicated by coparceners – On a Hindu dying after commencement of Amending Act, his interest in property of a joint Hindu family governed by Mitakshara law devolves by testamentary or intestate succession, as the case may be, under the Act and not by survivorship – Interest of a Hindu Mitakshara coparcener would be ascertained on the basis that a partition has taken place of property immediately before his death – His interest is deemed to be share in property which would have been allotted in a partition at a point of time immediately before his death, irrespective of whether or not he was entitled to seek partition – Daughter is in terms of Sub-Section (3) of Section 6 entitled to same share as is allotted to a son. (Paras 24, 33 and 36)
(C) Hindu Law – Partition – HUF – A coparcener holds a property in common with others – Birth of a person who is a coparcener leads to acquisition of an interest in coparcenary property – Shares are liable to increase with birth and reduce with death of a coparcener. (Para 50)
(D) Hindu Marriage Act, 1955 – Sections 11 and 16 – Hindu Succession Act, 1956 – Sections 8 and 10 – Succession rights of child born to parents whose marriage is null and void – In dividing property of an intestate in terms of Section 10 of HSA 1956, no distinction can be made on the basis of such a classification once such a child is deemed legitimate under Section 16 of the HMA 1955 – Such a construction shall also accord with provisions of Sub-Section 3 of Section 16 of HMA 1955 which enunciates that conferment of legitimacy by Sub-Section (1) or sub-Section (2) shall not confer on a such a child “any rights in or to the property of any person, other than the parents – Legislature has provided for ascertainment of share of deceased on a notional basis – Where deceased dies intestate, property would devolve in terms of Section 8 and distribution would be governed by Rules specified in Section 10. (Para 39)
Facts of the case:
A child born to parents whose marriage is null and void under Section 11 of Hindu Marriage Act, 1955 is declared to “be legitimate” by Section 16 (1) if a child “of such marriage... would have been legitimate if marriage had been valid.” Likewise, where a decree of nullity has been granted under Section 12 in respect of a voidable marriage, a child “begotten or conceived before decree is made” is “deemed to be their legitimate child” if such a child would have been legitimate child of parties to marriage if marriage had been dissolved instead of being annulled. Section 16(3) enunciates that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than parents” where but for enactment of legislation such a child would be incapable of possessing or acquiring any such rights “by reason of his not being legitimate child of his parents.”
Findings of Court:
Reference to three Judge Bench in this batch of cases is confined to Joint Hindu families governed by Mitakshara law. This Court has dwelt on interpretation of provisions of HSA 1956 in relation to Joint Hindu families of that class.
Result : Reference answered.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

A child born from a marriage that is null and void under relevant law is deemed legitimate if they would have been so had the marriage been valid. Such a child has rights only to the property of the parents and not to any other persons' property (!) (!) (!) .
When a Hindu dies after the commencement of relevant amendments, their interest in joint family property governed by Mitakshara law devolves through testamentary or intestate succession, not by survivorship. The interest is determined on the basis of a notional partition that would have taken place immediately before death (!) (!) (!) .
Shares in coparcenary property increase with the birth of a coparcener and decrease with death. The devolution of a Hindu's interest in such property on death is now primarily through testamentary or intestate succession, not survivorship, especially after recent amendments (!) (!) (!) .
Children born out of void or voidable marriages, once conferred with legitimacy, are entitled only to the property of their parents and not to the property of any other relatives or third parties. Their rights are confined to the property of the parents, and they cannot claim rights in ancestral or coparcenary property during the lifetime of the parents (!) (!) (!) .
The legislative intent behind conferring legitimacy on children born from void or voidable marriages is to treat them equally with other legitimate children in terms of inheritance rights, but such rights are limited to the property of the parents. This confers a legal fiction that such children are legitimate but does not automatically make them coparceners or give them rights in joint family property beyond their parent's estate (!) (!) (!) .
The institution of coparcenary under Mitakshara law involves collective ownership, where rights are acquired by birth, and interests fluctuate with births and deaths. Recent amendments recognize equal rights for daughters as coparceners, but confine their property rights to the property of their parents, not to ancestral or joint family property in general (!) (!) (!) .
The devolution of property for a Hindu after amendments is based on testamentary or intestate succession, not survivorship, and the property is deemed to be divided as if a partition had taken place immediately before death. Children conferred with legitimacy are entitled to their share in such property, but only within the scope of the property of their parents (!) (!) (!) .
The interpretation of relevant statutes emphasizes that rights of children conferred with legitimacy are limited to the property of their parents and do not extend to the property of other relatives or the broader coparcenary unless explicitly specified. The legal fiction of notional partition is used to determine the child's share in the property of the deceased parent (!) (!) (!) .
The legislative amendments aim to promote gender equality and remove discrimination, conferring coparcenary rights on daughters and clarifying the devolution of interest in coparcenary property, with the understanding that such rights are confined to the property of the parents and not to ancestral or joint family property during the lifetime of the parents (!) (!) (!) .
Overall, the legal framework balances the conferment of legitimacy and coparcenary rights with the limitations imposed by law, ensuring that such children have rights to their parents' property but do not automatically gain rights in the broader ancestral or joint family property unless specific conditions are met.

JUDGMENT :

DHANANJAYA Y. CHANDRACHUD, CJI.

Table of Contents
(A)	The reference to the three Judge Bench
(B)	Statutory conferment of legitimacy
(C)	Rights in or to the property of parents
(D)	Issues in the reference
(E)	Submissions
(F)	Joint Hindu family and coparcenary under Mitakshara
(G)	Hindu Succession Act 1956
(H)	Property of the Parents
(I)	Legitimacy and Coparcenary
(J)	The referring judgment revisited
(K)	Conclusion

(A) The reference to the three Judge Bench

1. A child born to parents whose marriage is null and void under Section 11 of the Hindu Marriage Act 1955¹ [The Hindu Marriage Act 1955 (HMA)] is declared to “be legitimate” by Section 16 (1) if a child “of such marriage... would have been legitimate if the marriage had been valid.” Likewise, where a decree of nullity has been granted under Section 12 in respect of a voidable marriage, a child “begotten or conceived before the decree is made” is “deemed to be their legitimate child” if such a child would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of being annulled² [Section 16(2) of HMA]. Section 16(3) enunciates that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than the parents” where but for the enactment of the legislation such a child would be incapable of possessing or acquiring any such rights “by reason of his not being the legitimate child of his parents.”

2. Several decisions of this Court have considered the nature of the property rights conferred on children of parents whose marriage is either void or in respect of which a decree of nullity has been passed under Section 12. In Jinia Keotin vs. Kumar Sitaram Manjhi, (2003) 1 SCC 730 a two judge Bench held that merely because the children born out of a void and illegal marriage have been specifically safeguarded under Section 16, they ought not to be treated on par with children born from a lawful marriage for the purpose of inheritance of the ancestral property of the parents.³ [At Page 732, Para 2]. This Court held that in view of the express mandate of the legislature in Section 16(3), a child born from a void marriage or a voidable marriage in respect of which a decree of nullity has been passed would have no right to inheritance in respect of ancestral or coparcenary property. The decision in Jinia Keotin was followed by two judge benches in Neelamma vs. Sarojamma, (2006) 9 SCC 612 and later in Bharatha Matha vs. R. Vijaya Renganathan, (2010) 11 SCC 483. After adverting to the two earlier decisions, this Court held that “a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties.”⁴ [At Page 513, Para 29]

3. The correctness of the decisions in Jinia Keotin, Neelamma and Bharatha Matha has been doubted by a two judge Bench in Revanasiddappa vs. Mallikarjun, (2011) 11 SCC 1. In its order referring the correctness of the earlier decisions to a larger bench, the Court has premised its doubt on the following basis:

(i) Section 16(3) does not qualify the expression ‘property’ either with ‘ancestral or self-acquired’ property. It sets out an express mandate that such children are only entitled to the property of their parents and not of any other relations.

(ii) Once children born from a void marriage (or a voidable marriage which has been declared to be nullity) are declared to be legitimate by sub-sections (1) and (2) of Section 16, they cannot be discriminated against and will be on par with other legitimate children for the purpose of all the rights in the property of their parents, both self-acquired and ancestral.⁵ [At Para 29 Page 9]

(iii) S