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2011 Supreme(UK) 183
2011 (2) UAD 101
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly
Civil Appeal No. 2844 of 2011
RAVANASIDDAPPA & ANR. – Appellants
Versus
MALLIKARJUN & ORS. – Respondents
Decided on : 21.03.2011
For the Appellants : Ms. Kiran Suri, Mr. S.J. Smith, Advs.
For the Respondents: Mr. Basava Prabhu S. Patil, Sr. Ad., Mr. V.N. Raghupathy, Adv., with him.
Headnote:(A) Hindu Marriage Act, 1955, Sec. 16(3) as amended by Marriage Laws (Amendment) Act, 1976 (68 of 1976) — Interpretation — Sec. 16(3) as amended, does not impose any restriction on the property right of illegitimate children except limiting it to the property of their parents — Therefore, such illegitimate children will have a right to whatever becomes the property of their parents whether self acquired or ancestral. (Paras 20 to 29, 35 to 38, 41 to 43)
(B) Constitution of India, 1950, Arts. 37, 39(f), 300-A — Right to property, no longer fundamental — But it is a Constitutional right — And Article 300A contains a guarantee against deprivation of property right saved by authority of law. (Paras 37 to 40)
¼v½ fgUnq fookg vf/kfu;e] 1955] /kkjk 16¼3½ & ftl dk la'kks/ku fookg ¼la'kks/ku½ vf/kfu;e] 1976 ¼68 lu~ 1976½ ls gqvk Fkk dk rkRi;Z & /kkjk 16¼3½ la'kksf/kr ds vuqlkj uktk;t cPpksa ds lEifÙk vf/kdkjksa ij dksbZ ikcUnh vk;n ugha djrh gS tks fd dsoy ek= muds ekrk firk dh lEifÙk rd gh lhfer gS & blfy, ,sls uktk;t cPpksa dk vf/kdkj ml lEifÙk rd gksxk tks muds ekrk firk dh cu tkrh gS pkgs og Lo;a dekbZ xbZ gks vFkok iSf=d gksA ¼izLrj 20 ls 29] 35 ls 38] 41 ls 43½
¼c½ Hkkjrh; lafo/kku] 1950] vuqPNsn 37, 39 (f), 300A & lEifÙk dk vf/kdkj vc ewy vf/kdkj ugha gS ijUrq ;g laoS/kkfud vf/kdkj gS vkSj vuqPNsn 300A] dkuwuh :i ls vkjf{kr lEifÙk ds vf/kdkj ls oafpr djus ds fo#) xkjUVh nsrk gSA
¼izLrj 37 ls 40½
Ganguly, J. — Leave granted.
2. The first defendant had two wives - the third plaintiff (the first wife) and the fourth defendant (the second wife). The first defendant had two children from the first wife, the third plaintiff, namely, the first and second plaintiffs; and another two children from his second wife, the fourth defendant namely, the second and third defendant.
3. The plaintiffs (first wife and her two children) had filed a suit for partition and separate possession against the defendants for their 1/4th share each with respect to ancestral property which had been given to the first defendant by way of grant. The plaintiffs contended that the first defendant had married the fourth defendant while his first marriage was subsisting and, therefore, the children born in the said second marriage would not be entitled to any share in the ancestral property of the first defendant as they were not coparceners.
4. However, the defendants contended that the properties were not ancestral properties at all but were self-acquired properties, except for one property which was ancestral. Further, the first defendant also contended that it was the fourth defendant who was his legally wedded wife, and not the third plaintiff and that the plaintiffs had no right to claim partition. Further, the first defendant also alleged that an oral partition had already taken place earlier.
5. The Trial Court, by its judgment and order dated 28.7.2005, held that the first defendant had not been able to prove oral partition nor that he had divorced the third plaintiff. The second marriage of the first defendant with the fourth defendant was found to be void, as it had been conducted while his first marriage was still legally subsisting. Thus, the Trial Court held that the third plaintiff was the legally wedded wife of the first-defendant and thus was entitled to claim partition. Further, the properties were not self-acquired but ancestral properties and, therefore, the plaintiffs were entitled to claim partition of the suit properties. The plaintiffs and the first defendant were held entitled to 1/4th share each in all the suit properties.
6. Aggrieved, the defendants filed an appeal against the judgment of the Trial Court. The First Appellate Court, vide order dated 23.11.2005, re-appreciated the entire evidence on record and affirmed the findings of the Trial Court that the suit properties were ancestral properties and that the third plaintiff was the legally wedded wife of the first defendant, whose marriage with the fourth defendant was void and thus children from such marriage were illegitimate. However, the Appellate Court reversed the findings of the Trial Court that illegitimate children had no right to a share in the coparcenary property by relying on a judgment of the Division Bench of the Karnataka High Court in Smt. Sarojamma & Ors. v. Smt. Neelazmma & Ors., [ILR 2005 Kar 3293].
7. The Appellate Court held that children born from a void marriage were to be treated at par with coparceners and they were also entitled to the joint family properties of the first defendant. Accordingly, the Appellate Court held that the plaintiffs, along with the first, second and third defendants were entitled to equal share of 1/6th each in the ancestral properties.
8. The plaintiffs, being aggrieved by the said judgment of the Appellate Court, preferred a second appeal before the High Court of Karnataka. The substantial questions of law before the High Court were:
“(a) Whether the illegitimate children born out of void marriage are regarded as coparceners by virtue of the amendment to the Hindu Marriage Act, 1956?
(b) At a partition between the coparceners whether they are entitled to a share in the said properties?”
9. The High Court stated that the said questions were no more res Integra and had been considered in the judgment of Sri Kenchegowda v. K.B. Krishnappa & Ors. [ILR 2008 Kar 3453]. It observed that both the lower courts had conc
