RESPECTED ALL,
PLEASE NOTED :-
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2011
(Arising out of Special Leave Petition (C) No.12639/09)
Revanasiddappa & another ...Appellant(s)
- Versus -
Mallikarjun & others ...Respondent(s)
J U D G M E N T
GANGULY, J.
1. 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
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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
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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
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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. Neelamma & Ors.,
[ILR 2005 Kar 3293].
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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?
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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 concurrently concluded that
the fourth defendant was the second wife of the
first defendant. Therefore, the second and third
defendants were illegitimate children from a void
marriage. Section 16(3) of the Hindu Marriage Act
makes it clear that illegitimate children only had
the right to the property of their parents and no
one else. As the first and second plaintiffs were
the legitimate children of the first defendant they
constituted a coparcenary and were entitled to the
suit properties, which were coparcenary properties.
They also had a right to claim partition against
the other coparcener and thus their suit for
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partition against the first defendant was
maintainable. However, the second and third
defendants were not entitled to a share of the
coparcenary property by birth but were only
entitled to the separate property of their father,
the first defendant. The High Court observed that
upon partition, when the first defendant got his
share on partition, then the second and third
defendants would be entitled to such share on his
dying intestate, but during his lifetime they would
have no right to the said property. Hence, the High
Court allowed the appeal and held that the first
plaintiff, second plaintiff and the first defendant
would be entitled to 1/3rd share each in the suit
properties. The claim of the third plaintiff and
the second, third and fourth defendants in the suit
property was rejected.
10. As a result, the second and third defendants
(present appellants) filed the present appeal.
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11. The question which crops up in the facts of
this case is whether illegitimate children are
entitled to a share in the coparcenary property or
whether their share is limited only to the self-
acquired property of their parents under Section
16(3) of the Hindu Marriage Act?
12. Section 16(3) of the Hindu Marriage Act, 1955
reads as follows:
"16. Legitimacy of children of void and
voidable marriages-
(1) xxx
(2) xxx
(3) 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, in any case where, but for the
passing of this Act, such child would have
been incapable of possessing or acquiring
any such rights by reason of his not being
the legitimate child of his parents.
13. Thus, the abovementioned section makes it very
clear that a child of a void or voidable marriage
8
can only claim rights to the property of his
parents, and no one else. However, we find it
interesting to note that the legislature has
advisedly used the word "property" and has not
qualified it with either self-acquired property or
ancestral property. It has been kept broad and
general.
14. Prior to enactment of Section 16(3) of the Act,
the question whether child of a void or voidable
marriage is entitled to self-acquired property or
ancestral property of his parents was discussed in
a catena of cases. The property rights of
illegitimate children to their father's property
were recognized in the cases of Sudras to some
extent.
15. In Kamulammal (deceased) represented by Kattari
Nagaya Kamarajendra Ramasami Pandiya Naicker v.
T.B.K. Visvanathaswami Naicker (deceased) & Ors.,
[AIR 1923 PC 8], the Privy Council held when a Sudra
9
had died leaving behind an illegitimate son, a
daughter, his wife and certain collateral agnates,
both the illegitimate son and his wife would be
entitled to an equal share in his property. The
illegitimate son would be entitled to one-half of
what he would be entitled had he been a legitimate
issue. An illegitimate child of a Sudra born from a
slave or a permanently kept concubine is entitled to
share in his father's property, along with the
legitimate children.
16. In P.M.A.M. Vellaiyappa Chetty & Ors. v.
Natarajan & Anr., [AIR 1931 PC 294], it was held
that the illegitimate son of a Sudra from a
permanent concubine has the status of a son and a
member of the family and share of inheritance given
to him is not merely in lieu of maintenance, but as
a recognition of his status as a son; that where
the father had left no separate property and no
legitimate son, but was joint with his collaterals,
the illegitimate son was not entitled to demand a
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partition of the joint family property, but was
entitled to maintenance out of that property. Sir
Dinshaw Mulla, speaking for the Bench, observed
that though such illegitimate son was a member of
the family, yet he had limited rights compared to a
son born in a wedlock, and he had no right by
birth. During the lifetime of the father, he could
take only such share as his father may give him,
but after his death he could claim his father's
self-acquired property along with the legitimate
sons.
17. In Raja Jogendra Bhupati Hurri Chundun
Mahapatra v. Nityanund Mansingh & Anr., [1889-90
Indian Appeals 128], the facts were that the Raja
was a Sudra and died leaving behind a legitimate
son, an illegitimate son and a legitimate daughter
and three widows. The legitimate son had died and
the issue was whether the illegitimate son could
succeed to the property of the Raja. The Privy
11
Council held that the illegitimate son was entitled
to succeed to the Raja by virtue of survivorship.
18. In Gur Narain Das & Anr. v. Gur Tahal Das &
Ors., [AIR 1952 SC 225], a Bench comprising Justice
Fazl Ali and Justice Bose agreed with the principle
laid down in the case of Vellaiyappa Chetty (supra)
and supplemented the same by stating certain well-
settled principles to the effect that "firstly,
that the illegitimate son does not acquire by birth
any interest in his father's estate and he cannot
therefore demand partition against his father
during the latter's lifetime. But on his father's
death, the illegitimate son succeeds as a
coparcener to the separate estate of the father
along with the legitimate son(s) with a right of
survivorship and is entitled to enforce partition
against the legitimate son(s) and that on a
partition between a legitimate and an illegitimate
son, the illegitimate son takes only one-half of
what he would have taken if he was a legitimate
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son." However, the Bench was referring to those
cases where the illegitimate son was of a Sudra
from a continuous concubine.
19. In the case of Singhai Ajit Kumar & Anr. v.
Ujayar Singh & Ors., [AIR 1961 SC 1334], the main
question was whether an illegitimate son of a Sudra
vis-`-vis his self-acquired property, after having
succeeded to half-share of his putative father's
estate, would be entitled to succeed to the other
half share got by the widow. The Bench referred to
Chapter 1, Section 12 of the Yajnavalkya and the
cases of Raja Jogendra Bhupati (supra) and
Vellaiyappa Chetty (supra) and concluded that "once
it is established that for the purpose of
succession an illegitimate son of a Sudra has the
status of a son and that he is entitled to succeed
to his putative father's entire self-acquired
property in the absence of a son, widow, daughter
or daughter's son and to share along with them, we
cannot see any escape from the consequential and
13
logical position that he shall be entitled to
succeed to the other half share when succession
opens after the widow's death."
20. The amendment to Section 16 has been introduced
and was brought about with the obvious purpose of
removing the stigma of illegitimacy on children born
in void or voidable marriage (hereinafter, "such
children").
21. However, the issues relating to the extent of
property rights conferred on such children under
Section 16(3) of the amended Act were discussed in
detail in the case of Jinia Keotin & Ors. v. Kumar
Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was
contended that by virtue of Section 16(3) of the
Act, which entitled such children's rights to the
property of their parents, such property rights
included right to both self-acquired as well as
ancestral property of the parent. This Court,
repelling such contentions held that "in the light
14
of such an express mandate of the legislature
itself, there is no room for according upon such
children who but for Section 16 would have been
branded as illegitimate any further rights than
envisaged therein by resorting to any presumptive or
inferential process of reasoning, having recourse to
the mere object or purpose of enacting Section 16 of
the Act. Any attempt to do so would amount to doing
not only violence to the provision specifically
engrafted in sub-section (3) of Section 16 of the
Act but also would attempt to court relegislating on
the subject under the guise of interpretation,
against even the will expressed in the enactment
itself." Thus, the submissions of the appellants
were rejected.
22. In our humble opinion this Court in Jinia
Keotin (supra) took a narrow view of Section 16(3)
of the Act. The same issue was again raised in
Neelamma & Ors. v. Sarojamma
& Ors.
[(2006) 9 SCC
612], wherein the court referred to the decision in
15
Jinia Keotin (supra) and held that illegitimate
children would only be entitled to a share of the
self-acquired property of the parents and not to the
joint Hindu family property.
23. Same position was again reiterated in a recent
decision of this court in Bharatha Matha & Anr. v.
R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685],
wherein this Court held that a child born in a void
or voidable marriage was not entitled to claim
inheritance in ancestral coparcenary property but
was entitled to claim only share in self-acquired
properties.
24. We cannot accept the aforesaid interpretation
of Section 16(3) given in Jinia Keotin (supra),
Neelamma (supra) and Bharatha Matha (supra) for the
reasons discussed hereunder:
25. The legislature has used the word "property" in
Section 16(3) and is silent on whether such property
16
is meant to be ancestral or self-acquired. Section
16 contains an express mandate that such children
are only entitled to the property of their parents,
and not of any other relation.
26. On a careful reading of Section 16 (3) of the
Act we are of the view that the amended Section
postulates that such children would not be entitled
to any rights in the property of any person who is
not his parent if he was not entitled to them, by
virtue of his illegitimacy, before the passing of
the amendment. However, the said prohibition does
not apply to the property of his parents. Clauses
(1) and (2) of Section 16 expressly declare that
such children shall be legitimate. If they have been
declared legitimate, then they cannot be
discriminated against and they will be at par with
other legitimate children, and be entitled to all
the rights in the property of their parents, both
self-acquired and ancestral. The prohibition
contained in Section 16(3) will apply to such
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children with respect to property of any person
other than their parents.
27. With changing social norms of legitimacy in
every society, including ours, what was illegitimate
in the past may be legitimate today. The concept of
legitimacy stems from social consensus, in the
shaping of which various social groups play a vital
role. Very often a dominant group loses its primacy
over other groups in view of ever changing socio-
economic scenario and the consequential vicissitudes
in human relationship. Law takes its own time to
articulate such social changes through a process of
amendment. That is why in a changing society law
cannot afford to remain static. If one looks at the
history of development of Hindu Law it will be clear
that it was never static and has changed from time
to time to meet the challenges of the changing
social pattern in different time.
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28. The amendment to Section 16 of the Hindu
Marriage Act was introduced by Act 60 of 76. This
amendment virtually substituted the previous
Section 16 of the Act with the present Section.
From the relevant notes appended in the clause
relating to this amendment, it appears that the same
was done to remove difficulties in the
interpretation of Section 16.
29. The constitutional validity of Section 16(3) of
Hindu Marriage Act was challenged before this Court
and upholding the law, this Court in
Parayankandiyal Eravath Kanapravan Kalliani Amma
(Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC
76], held that Hindu Marriage Act, a beneficial
legislation, has to be interpreted in a manner which
advances the object of the legislation. This Court
also recognized that the said Act intends to bring
about social reforms and further held that
conferment of social status of legitimacy on
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innocent children is the obvious purpose of Section
16 (See para 68).
30. In paragraph 75, page 101 of the report, the
learned judges held that Section 16 was previously
linked with Sections 11 and 12 in view of the
unamended language of Section 16. But after
amendment, Section 16(1) stands de-linked from
Section 11 and Section 16(1) which confers
legitimacy on children born from void marriages
operates with full vigour even though provisions of
Section 11 nullify those marriages. Such legitimacy
has been conferred on the children whether they
were/are born in void or voidable marriage before or
after the date of amendment.
31. In paragraph 82 at page 103 of the report, the
learned Judges made the following observations:
"In view of the legal fiction contained in
Section 16, the illegitimate children, for
all practical purposes, including
succession to the properties of their
parents, have to be treated as legitimate.
They cannot, however, succeed to the
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properties of any other relation on the
basis of this rule, which in its
operation, is limited to the properties of
the parents."
32. It has been held in Parayankandiyal (supra)
that Hindu Marriage Act is a beneficent legislation
and intends to bring about social reforms.
Therefore, the interpretation given to Section
16(3) by this Court in Jinia Keotin (supra),
Neelamma (supra) and Bharatha Matha (supra) needs
to be reconsidered.
33. With the amendment of Section 16(3), the common
law view that the offsprings of marriage which is
void and voidable are illegitimate `ipso-jure' has
to change completely. We must recognize the status
of such children which has been legislatively
declared legitimate and simultaneously law
recognises the rights of such children in the
property of their parents. This is a law to
advance the socially beneficial purpose of removing
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the stigma of illegitimacy on such children who are
as innocent as any other children.
34. However, one thing must be made clear that
benefit given under the amended Section 16 is
available only in cases where there is a marriage
but such marriage is void or voidable in view of
the provisions of the Act.
35. In our view, in the case of joint family
property such children will be entitled only to a
share in their parents' property but they cannot
claim it on their own right. Logically, on the
partition of an ancestral property, the property
falling in the share of the parents of such
children is regarded as their self acquired and
absolute property. In view of the amendment, we see
no reason why such children will have no share in
such property since such children are equated under
the amended law with legitimate offspring of valid
marriage. The only limitation even after the
22
amendment seems to be that during the life time of
their parents such children cannot ask for
partition but they can exercise this right only
after the death of their parents.
36. We are constrained to differ from the
interpretation of Section 16(3) rendered by this
Court in Jinia Keotin (supra) and, thereafter, in
Neelamma (supra) and Bharatha Matha (supra) in view
of the constitutional values enshrined in the
preamble of our Constitution which focuses on the
concept of equality of status and opportunity and
also on individual dignity. The Court has to
remember that relationship between the parents may
not be sanctioned by law but the birth of a child
in such relationship has to be viewed independently
of the relationship of the parents. A child born in
such relationship is innocent and is entitled to
all the rights which are given to other children
born in valid marriage. This is the crux of the
amendment in Section 16(3). However, some
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limitation on the property rights of such children
is still there in the sense their right is confined
to the property of their parents. Such rights
cannot be further restricted in view of the pe-
existing common law view discussed above.
It is well known that this Court cannot interpret a
socially beneficial legislation on the basis as if
the words therein are cast in stone. Such
legislation must be given a purposive
interpretation to further and not to frustrate the
eminently desirable social purpose of removing the
stigma on such children. In doing so, the Court
must have regard to the equity of the Statute and
the principles voiced under Part IV of the
Constitution, namely, the Directive Principles of
State Policy. In our view this flows from the
mandate of Article 37 which provides that it is the
duty of the State to apply the principles enshrined
in Chapter IV in making laws. It is no longer in
dispute that today State would include the
higher judiciary in this country. Considering
24
Article 37 in the context of the duty of judiciary,
Justice Mathew in Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another
[(1973) 4 SCC 225] held:
"......I can see no incongruity in holding,
when Article 37 says in its latter part
"it shall be the duty of the State to
apply these principles in making laws",
that judicial process is `State action'
and that the judiciary is bound to apply
the Directive Principles in making its
judgment."
38. Going by this principle, we are of the opinion
that Article 39 (f) must be kept in mind by the
Court while interpreting the provision of Section
16(3) of Hindu Marriage Act. Article 39(f) of the
Constitution runs as follows:
"39. Certain principles of policy to be
followed by the State: The State shall, in
particular, direct its policy towards
securing-
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) that children are given opportunities
and facilities to develop in a healthy
25
manner and in conditions of freedom
and dignity and that childhood and
youth are protected against
exploitation and against moral and
material abandonment."
39. Apart from Article 39(f), Article 300A also
comes into play while interpreting the concept of
property rights. Article 300A is as follows:
"300A. Persons not to be deprived of
property save by authority of law: No
person shall be deprived of his
property save by authority of law."
40. Right to property is no longer fundamental but
it is a Constitutional right and Article 300A
contains a guarantee against deprivation of property
right save by authority of law.
41. In the instant case, Section 16(3) as amended,
does not impose any restriction on the property
right of such children except limiting it to the
property of their parents. Therefore, such children
26
will have a right to whatever becomes the property
of their parents whether self acquired or ancestral.
42. For the reasons discussed above, we are
constrained to take a view different from the one
taken by this Court in Jinia Keotin (supra),
Neelamma (supra) and Bharatha Matha (supra) on
Section 16(3) of the Act.
43. We are, therefore, of the opinion that the
matter should be reconsidered by a larger Bench and
for that purpose the records of the case be placed
before the Hon'ble the Chief Justice of India for
constitution of a larger Bench.
.......................J.
(G.S. SINGHVI)
.......................J.
New Delhi (ASOK KUMAR GANGULY)
March 31, 2011
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