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Karnataka High Court
SARO JAMMA - Appellant
Versus
NEELAMMA - Respondent
Decided On : 07-08-05
R.F.A. : 711 of 2003
HINDU LAW
Inheritance - Right of a child born out of void or voidable marriage - Not only entitled to self acquired properties of its parents but also to their share in the joint family properties. See, Hindu Marriage Act, 1955 - Section16.
TESTAMENTARY SUCCESSION - Mitakshara co-parcenary property
Mitakshara co-parcenary property - Hindu male dying survived by a female Class I heir or male Class I heir claiming under such female - Devolution - How occurs. See, Hindu Succession Act, 1956 - Section 6.
Partition
HINDU LAW
Partition - Son born out of void or voidable marriage - Right to claim partition - Held, he cannot claim partition during the life time of his father. See, Hindu Marriage Act, 1955 - Section 16.
Rights of a son born out of illegal marriage
HINDU LAW
Rights of a son born out of void or voidable marriage - Should be treated on par with a natural son. See Hindu Marriage Act, 1955 - Section 16.
Legitimacy of child
HINDU MARRIAGE ACT, 1955
Section 11 - Legitimacy of child - A child born out of a marriage which is null and void under the petition is conferred with the status of legitimate child.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: A child which is born out of a marriage which is null and void under Section 11 of the Act or where a decree of nullity is granted in respect of the voidable marriage under Section 12 of the Act, is conferred with the status of legitimate child, though in normal circumstances such child would have been considered as an illegitimate child.
Cases Referred: AIR 1952 SC 225; AIR 1961 SC 1334; 2004(2) KCCR 1161.
Followed: 1996 (4) SCC 76; AIR 1992 A. P. 234; AIR 2001 AP 104.
Legitimacy of child
HINDU MARRIAGE ACT, 1955
Section 12 - Legitimacy of child - Decree granted in respect of voidable marriage under the Section - Child born out of such marriage is conferred with the stand of legitimate.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]:A child which is born out of a marriage which is null and void under Section 11 of the Act or where a decree of nullity is granted in respect of the voidable marriage under Section 12 of the Act, is conferred with the status of legitimate child, though in normal circumstances such child would have been considered as an illegitimate child.
Voidable marriage
HINDU MARRIAGE ACT, 1955
Section 12 - Voidable marriage - Decree of nullity - Effect on the child.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: 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 the legitimate notwithstanding the decree for nullity is made.
Object
HINDU MARRIAGE ACT, 1955
Section 16 - Object - Is to protect interest of children born out of void or voidable marriage, and to make them succeed to the estate of their parents.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: The object of Section 16 of the Act is intended to protect the interest of such children both in regard to their status and the right to succeed to the estate of their parents. Such a beneficial provision, which intended to protect such children, should be given a liberal and wider meaning, which would serve the object of the legislation. Any restricted meaning, would be in contravention of the provisions contained in sub-section (3) of Section 16 of the Act.
Partition
HINDU MARRIAGE ACT, 1955
Section 16 - Partition - Child born out of void or voidable marriage - Should be treated on par with a natural child - Right to claim partition - During life time of its father, cannot seek partition.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: During the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek for partition and he can seek for partition only after the death of his father.
Rights of an illegitimate child
HINDU MARRIAGE ACT, 1955
Section 16(2) -Rights of an illegitimate child - Marriage null and void or annulled by a decree - Child of rich a marriage - No rights conferred on the child over the property other than that of parents.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: 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.
Rights of an illegitimate child
HINDU MARRIAGE ACT, 1955
Section 16(2) -Rights of an illegitimate child - Marriage null and void or annulled by a decree - Child of rich a marriage - No rights conferred on the child over the property other than that of parents.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: 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.
Property of any person, other than the parents
HINDU MARRIAGE ACT, 1955
Section 16(3) - Property of any person, other than the parents - Meaning.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: The interest of a hindu Mitakshara coparcener shall be deemed to have the share in the properties that would have been allotted to him if a partition of a property had taken place immediately before his death, irrespective whether he was entitled to claim partition or not. Sub-section (1) of Section 16 of the Act, by means of a legal fiction makes a child, who is born out of a wed lock, which is null and void in law, as legitimate child. Once such a child is given the status of legitimacy, in our view, for all purposes, such a child should be considered on par with the child which is born out of a wed lock which is valid in law and is not affected by any stigma.
Rights of a child born out of void marriage
HINDU MARRIAGE ACT, 1955
Sections 16, 11 & 12 - Rights of a child born out of void marriage - Not only entitled to self acquired properties of parents but also to to the share of parents in the joint family properties.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: It would not be right to limit the properties of the parents referred to under sub-section (1) and (2) of Section 16 of the Act only to the self-acquired properties of the parents and exclude either the joint family or the ancestral properties of the parents. In our considered view, it should not make any difference whether it is a joint family property or a self-acquired property of a parent. Once such a child is given the status of legitimacy, as noticed by us earlier, for all purposes, such a child should be treated on par with the other children born to the parents whose marriage is valid in law. If the marriage is either null and void under Section 11 of the Act or is required to be declared null and void under Section 12 of the Act, the child born out of such marriage, which is given the status of legitimacy under Section 16 of the Act, in no way can be held responsible. For the contravention of law committed by the parents, a child born out of such a wed lock, when it is conferred with the status of a legitimacy and given a right in properties of the parents, cannot be deprived of the right to take his share either in the joint family property or ancestral properties of the parents. Therefore, once such a child is conferred with the status of legitimacy, we are of the view that such a child should be conferred with the status of a coparcenar and will be subject to all the rights and obligations of the members of coparcenary.
Children born out of void or voidable marriage
HINDU SUCCESSION ACT, 1956
Section 3(1)(j) - Children born out of void or voidable marriage - Should be treated as related to their parents - Should be treated on par with natural children.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: A child of a void or voidable marriage, should be treated as related to its parents within the meaning of Section 3(1 )(j) of the Succession Act by virtue of Section 16 of the Act. The proviso given to Section 3( 1 )(j) of the Succession Act must be confirmed to those children who are not clothed with legitimacy under Section 16 of the Act. Therefore, by virtue of Section 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 properties be originally joint family property or not.
Devolution of property
HINDU SUCCESSION ACT, 1956
Section 6 - Devolution of property - Death of male Hindu after commencement of the Act - Interest in Mitakshara co-parcenery property - Devolve by survivorship and not in accordance with the Act.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: When a male hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act.
Mitakshara co-parcenary property
INTESTATE SUCCESSION
Mitakshara co-parcenary property - Hindu male dying survived by a female Class I heir or male Class I heir claiming under such female - Devolution - How occurs. See, Hindu Succession Act, 1956 - S. 6.
Devolution of property
MITAKSHARA SCHOOL - Devolution of property - Death of Hindu male having interest is Mitakshara Co-parcenary property or leaving a female relative of Class I or a male relative of Class I claiming under such female - Devolution how occurs.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]:If the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in the said Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under the Act and not by survivorship. When a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act.
Right of an illegitimate son
PARTITION - Right of an illegitimate son born out of void or voidable marriage - Can only seek partition after death of his father and not during his lifetime.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]:During the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek for partition and he can seek for partition only after the death of his father.
Cases Referred: AIR 1952 SC 225; AIR 1961 SC 1334; 2004(2) KCCR 1161.
Followed: 1996 (4) SCC 76; AIR 1992 A. P. 234; AIR 2001 AP 104
Right of an illegitimate son
PARTITION - Right of an illegitimate son born out of void or voidable marriage - Can only seek partition after death of his father and not during his lifetime.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]:During the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek for partition and he can seek for partition only after the death of his father.
Cases Referred: AIR 1952 SC 225; AIR 1961 SC 1334; 2004(2) KCCR 1161.
Followed: 1996 (4) SCC 76; AIR 1992 A. P. 234; AIR 2001 AP 104
Legitimacy of child born out of illegal marriage
LEGAL FICTIONS - Legitimacy of child born out of void or voidable marriage - U/s. 16 of Hindu Marriage Act a legal fiction is created deeming such child as legitimate child.
[P. Vishwanatha Shetty and S. Abdul Nazeer, J]: The children born of the void second marriage would inherit share in the properties of their parents.
SURVIVORSHIP - Mitakshara co-parcenary property
Mitakshara co-parcenary property - How devolves. See Hindu Succession Act, 1956 - S. 6
TESTAMENTARY SUCCESSION - Mitakshara co-parcenary property
Mitakshara co-parcenary property - Hindu male dying survived by a female Class I heir or male Class I heir claiming under such female - Devolution - How occurs. See, Hindu Succession Act, 1956 - Section 6.
( 1 ) IN this appeal the appellants have called in question the correctness of the judgment and decree dated 28th November, 2002 made in O. S. No. 84 of 1996 by the I Additional Civil Judge (Senior Division), davanagere (hereinafter referred to as 'the Trial Court' ). While the appellants in this appeal were the plaintiffs in the suit, respondents were the defendants. The parties in this appeal, in the course of the judgment will be referred to by their status as in the Trial Court.
( 2 ) THE 1st plaintiff claims that she was the wife of Kuruvathi basavarajappa and plaintiffs 2 and 3 are the children of the 1st plaintiff born to the said Kuruvathi Basavarajappa and while the 1st defendant is one other wife of the said Kuruvathi Basavarajappa, the defendants 2 to 7 were also the children of the 1st defendant-Kuruvathi basavarajappa, the said Kuruvathi Basavarajappa had expired on 14-3-1992. Inspite of the demand made by the plaintiffs for allotment of their 42/100th share and possession of suit schedule property, the defendants having denied the same, the plaintiffs were constrained to file the suit seeking for partition and separate possession of their share in the suit schedule property. The defendants also denied the claim of the plaintiffs that they have been in joint possession of the suit schedule property.
( 3 ) ON the basis of the pleadings, the Trial Court framed the following issues : 1. Whether the plaintiff 1 proves that she is the legally wedded wife of deceased Kuruvathi Basavarajappa? 2. Whether the plaintiffs further prove that they are entitled for the claim as sought in the plaint? 3. Whether defendant is entitled for compensatory cost of Rs. 3,000. 00? 4. Whether the plaintiffs are entitled for the decree sought? 5. What decree or order?
( 4 ) THE 1st plaintiff was examined as P. W. 1 and two witnesses were examined as P. Ws. 2 and 3 in support of the case of the plaintiffs. The documents Exs. P. 1 to P. 11 have been marked in support of their case. On behalf of the defendants, the 1st defendant was examined as D. W. 1 and documents Exs. D. 1 to D. 19 have been marked in support of their case.
( 5 ) THE Trial Court, on the basis of the pleadings and the evidence on record, held that the 1st plaintiff is not the legally wedded wife of kuruvathi Basavarajappa. It has also held that the plaintiffs 2 and 3 are the illegitimate children of Kuruvathi Basavarajappa and that they were not entitled for any share in the properties of Kuruvathi basavarajappa. Accordingly, the suit was dismissed.
( 6 ) WE have heard the learned Counsels for the parties.
( 7 ) SRI C. H. Jadhav, learned Counsel for the plaintiffs while unable to seriously challenge the finding recorded by the Trial Court that the 1st plaintiff is not legally wedded wife of Kuruvathi Basavarajappa, strongly submitted that even if the marriage of the 1st plaintiff with the said Kuruvathi Basavarajappa is held to be void, the plaintiffs 2 and 3, who are born to her through the said Kuruvathi Basavarajappa, are entitled for a share in the property of Kuruvathi Basavarajappa in view of sub-section (3) of Section 16 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') as amended by means of the marriage Laws (Amendment) Act , 1976 (Act 68 of 1976) along with the defendants. He pointed out at the words "to the property of any person, other than the parents referred to in sub-section (3) of Section 16 of the Act should be understood to mean that all the properties belonging to the parents of the children who were born out of wedlock which is null and void under Section 11 of the Act along with the wife and children born out of a valid marriage. Therefore, he submits that the Trial Court ought to have granted 2/9th share to plaintiffs 2 and 3 out of the properties of the deceased Kuruvathi Basavarajappa. Learned counsel has relied upon the following decisions in support of his case. (i) Smt. Parayankandiyal Eravath Kanapravan Ka
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