Madras High Court
Rangasami vs Kasiappa Gounder, Kasiammal And ... on 1 August, 2003
Equivalent citations: (2003)3MLJ299
JUDGMENT M. Thanikachalam, J.
1. The plaintiff succeeded before the trial Court in a suit for partition and other related reliefs; but failed to sustain the same, when the same was questioned by the defendants before the first appellate Court and the result is this appeal.
2. The plaintiff is the son of the first defendant, by name Kasiappa Gounder, through his second wife, Valliammal. The second defendant/respondent is the wife of Kasiappa Gounder, the first defendant and their daughter is the third defendant. The suit properties belonged to the first defendant as his joint family properties.
3. The plaintiff/appellant contending that he is the son of the first defendant, claimed 1/2 share in the suit properties, alleging that the suit properties belonged to the plaintiff and the first defendant as joint family properties and therefore, by virtue of birth, probably as coparcener, he would be entitled to 1/2 share.
4. The defendants opposed the claim, urging that the plaintiff is not the son of the first defendant and if at all, he is the illegitimate son of the first defendant through his second wife, Valliammal and the position being so, he is not entitled to 1/2 share in the suit properties, while the first defendant is alive, the fact being he could not acquire any right in the joint family properties, by birth and if at all, he could claim share in the properties of the first defendant, that too, after his demise.
5. The trial Court proceeded with the trial of the case, examined three witnesses on the side of the plaintiff and the first defendant as D.W. 1., in addition, exhibiting 14 documents on the side of the plaintiff, marking nil document on behalf of the defendants.
6. The evaluation and application of law as then stood, brought to surface in the assessment of the Principal District Munsif, Gobichettipalayam that though the plaintiff is the son of the first defendant through his second wife, he should be construed as the legitimate son, for all the purposes, and the legitimate son, being the member of a joint family is entitled to share in the joint family properties. In this view, the trial court has granted a preliminary decree as prayed for in O.S. No. 812/82 as per the judgment dated 19.11.86.
7. The defendants impugning the said decree and judgment in O.S. No. 812/82 preferred an appeal before the Sub Court, Gobichettipalayam in A.S. No. 85/86. The learned Subordinate Judge elaborately considering the status of the plaintiff, and his mother as well as applying the provisions of law, came to the conclusion that the District Munsif has erred in granting the decree and in this view, he upset the trial Court's finding ordering the dismissal of the suit.
8. The plaintiff as aforementioned has questioned the decision of the first appellate Court in this appeal on the substantial question of law viz., Whether the judgment of the lower appellate Court is vitiated in that it has failed to see that the plaintiff is entitled to partition in the suit properties as per Section 16 of the Amended Act?
9. Heard the learned counsel for the appellant Mr. K. Kuppusamy and the learned counsel appearing for the respondent, Mr. P.V. Ramachandran, who have taken me through the pleadings and in aid the evidence, explaining the legal position also, elaborately for their claim and counter claim.
10. The learned counsel for the appellant would contend, that as per the established fact, the plaintiff/appellant is the son of the first defendant and his legitimacy should be from the date of birth and this being the position, denying the right to claim partition in the joint family properties, would not be proper. It is the further case of the appellant, that as per Section 16 of the amended Hindu Marriage Act, the position of the plaintiff is as that of legitimate son and the right accrued to the legitimate son, under the Hindu Succession Act, could not be deprived of by any other provisions. In this view of the matter, he would urge, that the plaintiff is entitled to a share, as granted by the trial Court and the upset by the first appellate Court, deserves to be reversed.
11. The learned counsel appearing for the respondent would contend, that at present, as ruled by the Apex Court of this land, the legal position is well settled that the illegitimate son, though for certain limited purpose, was given the right of a legitimate son, he could not claim share in the properties of the family, especially in the joint family properties, and if at all his right to claim share would be made available in the properties of the father and that succession also would open only after the death of the father. He further contends that the father of the plaintiff is well alive and in fact the suit is aimed against the father and as such, the plaintiff is not entitled to claim any share, in the suit property and in this view, the decision rendered by the first appellate Court deserves, approval by this Court. In this context, we have to see the status of the plaintiff.
12. The plaint is elegantly silent regarding the status of the plaintiff, except saying that the plaintiff and the first defendant are the son and father, giving the name of the plaintiff's mother as Valliammal, who died on 8.3.1964. After the objections taken by the first defendant, the father of the plaintiff, his first wife, viz., the second defendant was impleaded. It is the specific case of the defendants, that the plaintiff is not a joint family member and he is not the legitimate son born out of a lawful wedlock. Before the filing of the suit, there were criminal proceedings between the parties. In a proceedings under Section 100 Cr.P.C., the first defendant has admitted, as seen from Ex.A1, that he had married Valliammal, through whom he gave birth to a male child viz., the plaintiff. Further, as seen from the statement given by the first defendant, it is admitted by the first defendant, that Rangasamy is his son. Because of the admitted marriage and because of the admitted paternity, there was an agreement between the parties, to provide maintenance as seen from Ex.A.14. Therefore, there is no difficulty, at present, to conclude that the plaintiff is the son of the first defendant. The first defendant married the mother of the plaintiff, while his first wife viz., Kasiammal, the second defendant herein is alive. This fact is not seriously challenged either before the trial Court or before me. Therefore, one thing is certain that the first defendant, contracted the second marriage with Valliammal, while his first wife was alive and the relationship between him and the first wife was in subsistence, thereby making the second marriage as null and void. As far as this position is concerned, there is no dispute also.
13. Section 16 of the Hindu Marriage Act, 1955 legitimise the illegitimate children of void and voidable marriages. As per Sub section (1) & (2) of Section 16 of the Act, the children born out of the marriage, which is null and void, in view of the provisions, shall be deemed to be the legitimate child of the parents, notwithstanding the decree of nullity or its legal sanctity. The legislators, though have given the status of legitimacy to the illegitimate children, but curtailed their right of inheritance, in the joint family properties, but at the same time, giving right in the properties of the parents. Sub Section 3 makes it clear reading:-
"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."
14. A plain reading of the above provision would make it abundantly clear, that the right conferred upon the illegitimate children is, only as regards the property left by their parents and nothing more. In this view, as rightly contended by the learned counsel for the respondent and as rightly held by the first appellate Court, the plaintiff being the son of the first defendant, through the second wife, whose marriage is null and void, could not claim any inheritance in the joint family property, that too while the father is alive.
15. The trial Court relying upon a decision in Margabandu v. Kothandarama Mandhiri (1996 LW 448) has come to the conclusion, that the children born of a marriage, which is null and void also could get a share as if they are legitimate children. This decision was reviewed, on 8.8.1986 thereby reversing the above said decision. Therefore, the dictum originally laid in Margabandhu's case is not applicable, that too, in view of the decision of the division bench of this Court, that the illegitimate children will be entitled to a share in the father's share of the property and that the share of illegitimate children in the properties are confined only in the interest of their parents, as held in Margabandhu v. Kothandarama Mandhiri (1998 (1) L.W. 103).
16. In Sivagnanavadivu Nachiar & Others v. Krishnakanthan & others (1989 LW 706), a Division Bench of this Court has held -
"But having made it clear that the children born of such marriage would be regarded as legitimate children, notwithstanding the decree for nullity, which would otherwise have the effect, because of the relation back principle, of enabling such children to line up along with the other legitimate children for purposes of succession, the right of such children to inherit should be limited and confined to the interests of their parents. The effect of the proviso is to so limit the logical result of legitimization with relation back to the date of birth. The proviso forbids conferment of any right on the legtimatized child in the property of any person other than the parents, where, but for the passing of the 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. In other words, if S. 16 were not there, the result of declaring the marriage as nullity would be to regard the children born of such marriage as illegitimate in which case, they would not be entitled to any share at all in the property of the father, or to inherit any other property. But because of the legitimization; they should be regarded as legitimate sons born of the marriage declared void."
17. Following the division bench, which was not brought to notice at the first instance in Margabandhu's case, this Court has held in Perumal Gounder v. Pachayappan that "..the first respondent, though he should be considered to be the legitimate son of the first appellant, cannot seek the relief of partition as such, but at best may be entitled to rights in the properties of the first appellant, after his death."
thereby making it crystal clear, that a son like the plaintiff, could not claim share in the joint family properties and at the best, he may be entitled to claim the share in the properties of the father, that too after his death, if he dies intestate. This position is further cleared and confirmed by the Apex Court also.
18. In Jinia Keotin Kumar v. Sitaram Manjihi (2003(1) CTC 250), the Apex Court has observed while interpreting Section 16 of the Hindu Marriages Act, which reads :
"So far as Section 16 of the Act is concerned, though it was enacted to legitimate children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, 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 acquring any such rights by reason of his not being the legitimate child of his parents." In the light 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 but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself."
19. In view of the above said position of law, the plaintiff, who is the son of the first defendant, through his second wife, whose marriage is not valid, whereas it should be held as null and void, the plaintiff could not claim a share, in the joint family properties. This legal position was not properly considered by the trial Court and the same was well considered by the first appellate Court and thereby, it has rendered a correct and unerring judgment, while judging the right of the plaintiff, which could not be assailed on any grounds.
20. Though the learned counsel for the appellant had urged that the plaintiff is entitled to a share, in view of the settled legal position as pointed out by the learned counsel for the respondent, he has no answer for this legal position and no contra views are also possible and in fact, I should say, the learned counsel for the appellant fairly conceded the legal position. In this view, the plaintiff is not entitled to any share in the suit properties, because of the fact, his father, the first defendant is alive. Since the first appellate Court has properly appreciated Section 16 of the Act, on the basis of the above rulings, the judgment could not be termed, as vitiated or illegal or erroneous, as the case may be. Hence this point is answered accordingly.
In the result, the appeal fails and the same is dismissed, but under the facts and circumstances of the case, ordering the parties to bear their respective costs through out.