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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, J.
Kizhakkayil Devi Amma (Died)Parol, Mahi & Ors. - Appellants
Versus.
Palliyil Koyiloth Narayanan Olavilam Amsom, Desom, Tellicherry Taluk & Ors. - Respondents
SA. No. 47 of 1997
Decided On : 03-04-2019
Statement of facts:
The property sought to be partitioned in the suit is an item originally held by one Kelu Kurup. Kelu Kurup gifted the property to his nieces namely Mathu, Parvathi, Lekshmi and Madhavi. Exhibit A1 is the Gift Deed executed by Kelu Kurup in this connection- The plaintiffs are persons claiming under Madhavi. The case set out by the plaintiffs in the plaint is that Ext.A1 is a gift in favour of the thavazhies of the four persons mentioned in the document and all the members of the four thavazhies are, therefore, entitled to a share in the property- A decree for partition was sought, in the circumstances, on that basis--The trial court held that defendant No.11 is entitled to the share of deceased Sankara Kurup exclusively- Defendants 2 and 6 to 10 as also defendant No.23 preferred appeals challenging the decision of the trial court- The appeal preferred by defendant No.23, on the other hand, was in relation to the exclusive right claimed by defendant No.11 over the share of property held by Sankara Kurup- The appellate court affirmed the decision of the trial court and dismissed the appeals-Defendants 18 to 22 and 24 are aggrieved by the decision in the suit as affirmed in appeal.
• Are the children born out of void marriages entitled, in terms of Section 16 of the Act, rights only in the self acquired properties of their parents?
• Are the children born out of void marriages entitled, in terms of Section 16 of the Act, rights in the ancestral properties held by their parents which have the characteristics of self acquired properties?
Finding of the court:
After the advent of the Kerala Joint Hindu Family System (Abolition) Act 1976, the character of the said property is also changed and the share of Sankara Kurup in the said property devolved on his legal representatives has acquired all the characteristics of a separate property in contradistinction to their ancestral property. This is evident also from the fact that had Sankara Kurup been alive when the Kerala Joint Hindu Family System (Abolition) Act 1976 was introduced, the property sought to be partitioned would have had all the characteristics of a self-acquired property of Sankara Kurup. The object and purpose of Section 16 being to advance the socially beneficial purpose of removing the stigma of illegitimacy on children born out of void marriages who are as innocent as any other children, there is absolutely no reason why such children shall be denied rights in such properties, especially in suits instituted after the Kerala Joint Hindu Family System (Abolition) Act, 1976.
Result: Second appeal is allowed
Defendants 18 to 22 and 24 in a suit for partition are the appellants in the second appeal.
2. The property sought to be partitioned in the suit is an item originally held by one Kelu Kurup. Kelu Kurup gifted the property to his nieces namely Mathu, Parvathi, Lekshmi and Madhavi. Exhibit A1 is the Gift Deed executed by Kelu Kurup in this connection. The plaintiffs are persons claiming under Madhavi. The case set out by the plaintiffs in the plaint is that Ext.A1 is a gift in favour of the thavazhies of the four persons mentioned in the document and all the members of the four thavazhies are, therefore, entitled to a share in the property. A decree for partition was sought, in the circumstances, on that basis.
3. Among the donees in Exhibit A1, Parvathi was succeeded by her son Sankara Kurup. Sankara Kurup had married thrice. Defendant No.11 is the son of Sankara Kurup in his first wife. Defendant No.17 is the second wife and defendant No.19 is the third wife of Sankara Kurup. Defendant No.18 is the daughter born to Sankara Kurup in defendant No.17 and defendant Nos. 20 to 24 are the children born to Sankara Kurup in defendant No.19. In the suit, among others, defendant No.11 contended that he is the sole successor of Sankara Kurup. According to him, the marriages of Sankara Kurup with defendants 17 and 19 took place prior to the Hindu Marriage Act, 1955 (the Act), at a point of time when the Madras Marumakkathayam Act 1932, was in force and the said marriages are void in terms of the provisions of the Act. It was his contention that since the said marriages are void, the children born to Sankara Kurup in the said marriages are not entitled to a share in the property of Sankara Kurup. Defendant No.23 refuted the said stand of defendant No.11. According to him, in the light of Section 16 of the Act, defendants 18 and 20 to 24 are also entitled to a share in the property inherited by Sankara Kurup, along with defendant No.11.
4. The trial court accepted the case of the plaintiffs and found that Sanakara Kurup is entitled to 1/12 share in the suit property. The court also found, placing reliance on the decision of this court in Kalliani Amma v. Devi (1989(2) KLT 80), that the benefit of Section 16 of the Hindu Marriage Act, 1955 conferring legitimacy to children born out of void marriages is not available to the children born out of void marriages held prior to the coming into force of the Act. Consequently, the trial court held that defendant No.11 is entitled to the share of deceased Sankara Kurup exclusively. A decree was passed by the trial court accordingly. Defendants 2 and 6 to 10 as also defendant No.23 preferred appeals challenging the decision of the trial court. The appeal filed by defendants 2 and 6 to 10 was in relation to the contention taken by them in the suit that Exhibit A1 was a gift in favour of the individuals mentioned in the document and not in favour of their thavazhies as claimed by the plaintiffs. The appeal preferred by defendant No.23, on the other hand, was in relation to the exclusive right claimed by defendant No.11 over the share of property held by Sankara Kurup. The appellate court affirmed the decision of the trial court and dismissed the appeals. As noted, defendants 18 to 22 and 24 are aggrieved by the decision in the suit as affirmed in appeal.
5. Heard the learned counsel for the appellants as also the learned counsel for the contesting respondents.
6. The learned counsel for the appellants contended that the finding rendered by the trial court that defendant No.11 is the sole legal representative of deceased Sankara Kurup is based on the decision of this court in Kalliani Amma v. Devi (1989(2) KLT 80). According to the learned counsel, the judgment in the said case was reversed by the Apex Court holding that children born out of void marriages are also entitled to the benefit of Section 16 of the Act, notwithstanding whether the marriages took place prior to or after the commencement of
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