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High Court of Judicature at Bombay
J.H. BHATIA
Shahaji Kisan Asme & Others
Versus
Sitaram Kondi Asme since deceased by his heirs & Others
SECOND APPEAL NO.567 OF 2007 IN REG. CIVIL APPEAL NO.222 OF 1992 IN REG. CIVIL SUIT NO.215 OF 1978
Decided on : 24-09-2009
Hindu Succession Act, 1956 - Sections 3(1)(j), 15(1)(a), 16(3)-Succession-Female Hindu dies intestate-Word "related" used in Section 3(1)(j) of Act-Means related by legitimate kinship-Illegitimate children be deemed to be related to their mother and to one another-Legitimate descendants of such illegitimate children be deemed to be related to them and to one another-Illegitimate children may inherit property of their mother and they may succeed to each other also.-Section 15 provides general rules of succession in case of a female Hindu who dies intestate. Section 3(1)(j) of Hindu Succession Act defines the word "related" and it reads as follows :-
"3(1). In the Act, unless the context otherwise requires,-
(j) "related" means related by legitimate kinship :
Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any words expressing relationship or denoting a relative shall be construed accordingly.’’
From this, it will be clear that whenever a person is said to be related to another for the purpose of succession, the relationship must be legitimate and therefore the illegitimate children shall not be treated as related to any person and cannot succeed such person. However, the proviso to clause (j) makes an exception and thereby the illegitimate children shall be deemed to be related to their mother and to one another and the legitimate descendants of such illegitimate children shall be deemed to be related to them and to one another.
On careful perusal of Section 15(1)(a) with definition of word "related" in Section 3(1)(j), it will become clear that the sons and daughters, whether legitimate or illegitimate, of a female Hindu the children of such predeceased son or daughter are entitled to succeed her. Thus, in view of the provisions of Section 3(1)(j) read with Section 15(1)(a) illegitimate children may inherit the property of their mother and because they are deemed to be related to each other they may succeed to each other also. However, there is no other provision in the Hindu Succession Act under which illegitimate children can succeed to the property of any other person except their mother or themselves.
Second Appeal is filed by the original plaintiffs being aggrieved by refusal of shares to them in the property of their grandparents.
2.Before dealing with the question of law raised in this Appeal, it will be useful to state the facts in brief. Defendant No.1 - Sitaram had two sons, namely, Kisan and defendant No.2 - Ramchandra. Defendant Nos.4, 5 and 6 are the daughters of Sitaram. His son Kisan died in 1968, leaving behind his first wife Bhagirathibai, who is defendant No.7, second wife Vimal, who is plaintiff No.4 and three sons, who are plaintiff Nos.1 to 3 and a daughter, who is defendant No.3. They are children from his second wife Vimal. The plaintiffs i.e. the sons and the second wife of Kisan, filed Regular Civil Suit No.215 of 1978 seeking partition and separate possession of the joint family property. According to them, defendant no.2 Ramchandra was given in adoption to one Gangaram Pawar and, therefore, he did not have any right, title or interest in the suit properties which are ancestral and join family properties in the hands of Sitaram and other members of the joint family. The defendant No.2, who is the main contesting defendant, denied that he was given in adoption. According to him, said Gangaram Pawar is his maternal grandfather and therefore he could not have been lawfully given in adoption to said Gangaram Pawar. He also contended that some of the suit properties are his self-acquired property and his father Sitaram had bequeathed his share in the remaining property to him under a Will. He also contended that the plaintiff No.4 was not lawfully wedded wife of Kisan and the plaintiff Nos.1 to 3 and defendant No.3 are not the legitimate children of Kisan. Therefore, they cannot claim any share in the ancestral property of the joint family.
3.Several issues were framed by the trial Court. After hearing the evidence led by the parties, the trial Court came to conclusion that plaintiff No.4 Vimal was not lawfully wedded wife of Kishan because his first marriage with defendant no.7 Bhagirathibai was subsisting when he married plaintiff No.4. As a result of this, plaintiff No.4 could not claim any share in the property and the plaintiff Nos.1 to 3 and defendant No.3 being the illegitimate children of deceased Sitaram and plaintiff No.4 Vimal, they can claim share only in the share of deceased Kisan, but not in the joint family property. The trial Court also held that the plaintiffs had failed to prove that defendant No.2 was given in adoption. The trial Court held that the defendant no.1 had bequeathed his estate in favour of defendant No.2 by Will. The claim of defendant No.2 that some properties were self-acquired was also accepted. The trial Court came to conclusion that in the notional partition of the joint family property, on death of Kisan in 1968, his 1/4th share would be inherited by succession by the plaintiff Nos.1 to 3 and defendant Nos.3 and 7, his mother Draupadabai. Accordingly, the trial Court granted 1/24th share in the property to each of the plaintiff Nos.1 to 3 and defendant No.3.Draupadabai, wife of defendant No.1 and mother of deceased Kisan and defendant No.2 Ramchandra, died in 1976. However, the trial Court held that the plaintiff Nos.1 to 3 and defendant No.3, being it legitimate children of Kisan, cannot get any share in the estate of their grandmother Draupadabai on her death.
4.Being not satisfied with the judgment and decree passed by the trial Court, the plaintiffs preferred Regular Civil Appeal No.222 of 1992. Pending the appeal, defendant No.1 also died. The first appellate Court upheld the findings of the trial Court to the effect that defendant No.4 is not legally wedded wife of deceased Kisan and that the defendant No.2 was not given in adoption. However, the appellate Court held that none of the properties was self-acquired property of defendant No.2 and that the defendant No.1 had not bequeathed his share in the property to defendant No.2. Thus, whole of the proper
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