2007 Supreme(Kar) 96

2008 (3) KLO 2369
IN THE HIGH COURT OF KARNATAKA
N. Kumar, J.
Regular Second Appeal No. 1705/2006
Sri Kenchegowda - Appellant
Vs.
K.B. Krishnappa and Others - Respondents
Decided on 14-2-2007

Headnote:(A) Hindu Marriage Act, 1955 - Section 16 - Illegitimate son - Now treated on par with a legitimate son - Entitlement to property - Entitled to a share in his father’s property only - But he has to wait for death of his father which is also the case of a legitimate child.

       (B) Hindu Marriage Act, 1955 - Section 16 - Legislative intent behind Uncodified Hindu Law permitting more than one wife - Children treated as legitimate but not a child of concubine - Act declared a second marriage as void - Injustice caused to illegitimate children is done away with - Thus bastardliness is removed.

       Held: Prior to the Act, 1955 there was no prohibition for a Hindu to have more than one wife. Therefore, all the children born to the said wife were treated as legitimate children and members of joint family or co-parcenery. It is only a child born to concubine was treated as illegitimate child. Each one of these legitimate children had a right to maintain a suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenary property. After the passing of the Act, 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over-riding effect and the Personal Law of Hindus in so far as the marriages are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as “Succession Act” , because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for the folly of its parents thought of introducing Section 16 to the Act. (Para 17)

       (C) Hindu Marriage Act, 1955 - Section 16 - Insertion of - Effect - Illegitimate children - Rights of - Have a right in property of their parents only and none else.

       Held: 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. (Para 17)

       (D) Hindu Marriage Act, 1955 - Section 16 - Legal fiction under - Nature of.

       Held: Section 16 of the Act 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. However, it is a legal fiction with limitation. 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. The object sought to be achieved by this provision is twofold. 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 provision, and confer rights on such child in coparcenary or joint family property amounts to re-legislating on the subject, under the guise of interpretation, against the will of the Parliament clearly expressed in the enactment itself.

       (Para 23)

       (E) Hindu Marriage Act, 1955 - Section 16 - Judicial interpretation of - Scope - Courts cannot expand scope of this provision and confer rights on children born out of void marriage.

       (F) Hindu Succession Act, 1956 - Section 3(g) - Intestate - Meaning of.

       Held: A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is up held, then his natural heirs have no right to succeed or to inherit the said property. (Para 27)

       (G) Hindu Succession Act, 1956 - Section 6 - Self acquired and coparcenary property - Devolves as under.

       Held: It provides that when a male Hindu dies after the commencement of this 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 co-parcenary and not in accordance with this Act. Therefore, it is , clear that in respect of a co-parcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession. (Para 27)

       (H) Hindu Succession Act, 1956 - Section 8 - Property of a male - Legal heirs are entitled to such property only on death of male dying intestate.

       Held: It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying intestate shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying intestate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying intestate devolves by succession only.

       (Para 28)

       (I) Hindu Succession Act, 1956 - Section 8 - Entitlement of legitimate and illegitimate children - Both of them cannot claim a share in property of father by filing a suit.

       Held: 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 life time 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.

        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, 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 posses 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 confers right on such property. In respect of such property, both legitimate and illegitimate child, succeed in accordance with the provisions of Section 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 life time, in respect of separate self acquired property of parents. The illegitimate son is not a co-parcener. He has no right in co-parcenary property. However, he has a right in the share of the father in co-parcenary 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. (Paras 29,30)

       (J) Hindu Law - Partition - Under Mitakshara Law a Hindu son could acquire right in coparcenary property by birth - Hence he could maintain a suit for partition of such property excluding self acquired property.

       Held: Under the Hindu law, a Hindu son in the area covered by Mitakshara law acquires right in the co-parcenary property by birth. Therefore, he can maintain a suit against his father in respect of his right which he acquires by birth.

        The said right is confined to only co-parcenary property and joint family property. The said right is not extended even in Hindu law to the separate or self acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, intestate succession among Hindus. (Para 25,26)

       (K) Mithakshara Law - Birth right of son - Property to be divided is ex vi termini - Son’s right at birth is so connected with right to share in and to obtain partition of estate, that it does not exist independently of his right to joint enjoyment of property.

       (L) Words and phrases - Intestate - A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is up held, then his natural heirs have no right to succeed or to inherit the said property.

       Result: Regular Second Appeal dismissed.