Madras High Court
Gowramma vs C.P.Munikrishtappa on 11 July, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.920 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.07.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No.920 of 2009
and
M.P.No. 1 of 2009
1. Gowramma
2. Subramani
3. Gangadharan
4. Muninagama
5. Anitha .. Appellants
Versus
1. C.P.Munikrishtappa
2. C.P.Ramakrishnappa .. Respondents
Second Appeal filed under Section 100 of C.P.C against the judgment
and decree of the learned Sub Judge, Hosur in A.S.No.10 of 2008 dated
18.04.2009 confirming the judgment and decree of the learned District Munsif,
Hosur in O.S.No.387 of 2004, dated 05.12.2007.
For Appellants : Mr.K.Chandrasekaran
For Respondents : M/s.V.Srimathi
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JUD GMENT
This Second Appeal had been filed against the judgment and decree
dated 18.04.2009 passed in A.S.No.10 of 2008 by the learned Sub Judge,
Hosur confirming the judgment and decree dated 05.12.2007 passed in
O.S.No.387 of 2004 by the learned District Munsif, Hosur.
2. The learned Counsel for the Appellant submitted his arguments.
As per his submissions, the Plaintiffs 2 to 5 and the Defendants in O.S.No.387
of 2004 on the file of the learned District Munsif, Hosur, are the legal heirs of
Chinna Pillapa. Chinna Pillappa died intestate on 27.01.1990. It is an admitted
fact that there was a family partition between four sons of Chinna Muniyappa
and the suit properties were allotted to the Chinna Pillapa, the father of the
Plaintiffs 2 to 5 and the Defendants 1 and 2. The mother of the Defendants 1
and 2, Pathiamma, was the first wife of Chinna Pillappa. She begot the
Defendants and they are the legitimate sons.
3. Chinna Pillappa contracted the second marriage with Gowramma,
the first Plaintiff in O.S.No.387 of 2007. The said Chinna Pillappa through his
second wife Gowramma had four children/Plaintiffs 2 and 3 are sons through
Gowramma. The Plaintiffs 4 and 5 are the daughters of Chinna Pillappa.
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4. The Defendants are the sons of Chinna Pillapa through the first
wife. The Plaintiffs in O.S.No.387 of 2004 are the second wife and children,
filed a suit for partition of the properties left intestate by Chinna Pillappa. The
Defendants resisted the suit on the ground that the Plaintiffs are not entitled to
the ancestral properties of the male heirs. Therefore, the suit for partition by
the Plaintiffs is not maintainable. Issues were framed. During trial, the second
Plaintiff Subramani had examined himself as P.W-1 and marked documents
under Ex.A-1 to Ex.A-3. The first Defendant examined himself as D.W-1 and
no documents were marked on the side of the Defendants. After full trial, the
learned District Munsif, Hosur, decreed the suit stating that the Chinna Pillappa
and the Defendants 1 and 2 constituted a joint family and hence, wife is not
entitled to any share. The 1/3rd undivided share of Chinna Pillappa will
devolve on Plaintiffs 2 to 5 and the Defendants 1 and 2 i.e 1/3 rd undivided share
divided into 6 undivided share and each entitled to 1/18th share. Thus, it was
held by the learned District Munsif that the Defendants are entitled to 1/3 +
1/18 = 7/18 for two Defendants is 14/18 undivided shares and the Plaintiffs 2 to
5 are collectively entitled to 1/18th shares. Therefore, the Plaintiffs filed an
Appeal in A.S.No.10 of 2008 on the file of the learned Sub Judge, Hosur. The
learned Sub Judge, after hearing both the parties confirmed the judgment of the
learned District Munsif, Hosur and dismissed the Appeal. Hence, the Plaintiffs
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preferred this Second Appeal for which the substantial questions of law are
raised. There is no discrimination between the illegitimate children or the
legitimate sons and daughters to the properties of father.
5. As per the submissions of the learned Counsel for the Appellants,
the legal points involved in the case are as follows:
a) When the intestate namely the father herein leaves behind him
both male and female heirs, the property will devolve on them as if it is a self-
acquired property not on the basis that the properties are his joint family
properties along with the sons. In this case, admittedly, the father left behind
him four sons and two daughters. As per Section 16 of the Hindu Marriage
Act, 1955, the illegitimate children are entitled to the share of the property to
the father. Since the Plaintiffs 4 and 5 are daughters, the intervention of female
heirs would render the joint family property as his self-acquired property and
not as his joint family property as per the reported decision in (1987) 100
MAD LW 347 [Commissioner of Wealth Tax, Kanpur etc vs. Chander Sen]
wherein it is held as follows:
“Hindu Succession Act (30 of 1956), Section 8 and Wealth
Tax Act (27 of 1957), Section 3 – Moneys obtained by a Hindu in
a partition between him and his son in a joint family business and
credited in his account in a firm consisting of himself and his son
– Death of father -son succeeding to the said moneys as his only
heir, held need not include it in his Wealth Tax return filed for
joint family of himself and his sons – claim of the son that the said
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amount devolved on him in his individual capacity and was not
the property of his joint family, upheld.
Income or asset which a son inherits from his father when
separated by partition, whether could be assessed as income of
HUF of the son or whether it would be his individual income –
Effect of Section 8, as to whether the son would inherit as the
Karta of his own family.
Also relied on the case of Yudhister vs. Ashok Kumar reported in (1987)
1 SCC 204 wherein Section 8 of the Hindu Succession Act, 1956 - the suit
property bona fide requirement by landlord. The alteration of old Hindu Law
as to the right of birth of a son with regard to the joint family property held by
the father, son does not take it but takes it as his individual capacity. Hence, in
this case, since there are female heirs, the property left by the father, got by
him under partition is his self acquired property. Hence, both the Courts have
erred in granting only 1/3 to Plaintiffs 2 to 5 and 2/3rd to the Defendants. It
ought to have been 4/6 undivided shares collectively and 2/6 undivided shares
for Defendants i.e., 2/3rd to the Plaintiffs collectively and 1/3rd to the
Defendants collectively.
b) In view of the reported decision in the case of Revanasiddappa and
another vs. Mallikarjun and others reported in (2023) 10 SCC 1, the view of
both the Courts below that the father constituted a joint family with his two
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legitimate sons namely the Defendants is wrong. In the above case, the
Hon'ble Supreme Court has categorically held that the illegitimate children
should be treated as legitimate children as per Section 16 of the Hindu
Marriage Act as legitimate children both in regard to the self-acquired and
ancestral properties left by the father who died intestate. So, Plaintiffs 2 to 5
and Defendants 1 and 2 will have equal undivided shares in the properties left
by the father. If it is so, the Plaintiffs 2 to 5 collectively are entitled to
undivided 2/3rd share and the Defendants collectively are entitled to undivided
1/3rd share. Therefore, on these two legal points the Second Appeal should be
allowed. The judgment and decree of the Courts below are to be modified to
the effect that Plaintiffs 2 to 5 are entitled to a preliminary decree for undivided
2/3rd share in the suit properties while the Defendants are entitled to 1/3rd
undivided shares in the suit properties.
6. The learned Counsel for the Respondents Mrs.V.Srimathi
submitted her oral arguments. It is the submission of the learned Counsel for
the Respondents that Chinna Pillapa father of the Plaintiffs 2 to 4 and the
husband of the first Plaintiff married the first Plaintiffs as his 2nd wife during
subsistence of marriage when the wife was alive. Therefore, the claim that the
first Plaintiff as his 2nd wife not at all has legal status. She does not have the
status of the wife as per Hindu Marriage Act. On the death of the Chinna
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Pillapa, the Plaintiffs had filed the suit for partition against the Defendants 1
and 2. The Defendants 1 and 2 are the sons born in the wedlock between
Pathiamma and Chinna Pillapa whereas the Children born to the first wife and
Chinna Pillapa does not have the same status. Even if the Hindu Succession
Act is applied as it stood prior to Hindu Succession Act, the Plaintiffs are
entitled. (as claimed in the written statements). Therefore, the Plaintiffs cannot
seek equal share as that of the Defendants. What had been arrived by the
learned Trial Judge is found proper.
7. The learned Counsel for the Respondents invited the attention of
this Court to the contention of the Plaintiffs in the plaint. Also he invited the
attention of this Court to the contents of the written statements wherein it is
specifically stated that the Plaintiffs cannot seek partition of the suit properties
as they are joint family properties. Only they are entitled to share allotted to
the father of the Plaintiffs and Defendants. If the suit properties are partitioned
between Plaintiffs and Defendants' father and the Defendants, the father of the
Plaintiffs and Defendants will get 1/3rd share of the property, out of 1/3rd share,
it is to be partitioned between Plaintiffs and Defendants as 1/18 share. The
Plaintiffs claims that the properties are to be divided into 49 equal shares.
8. The learned Counsel for the Respondents invited the attention of
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this Court to Paragraphs 4, 10 and 11 of the written statement filed by the
Defendants which are extracted as under:
“4. It is true that the said Chinna Muniyappa had four sons.
The said chinna Muniyappa had a daughter by name Gullama,
who died about 20 years back, leaving behind two sons Nagappa
and Marisami. Gullamma's husband Ramegoudu died in the year
1995. The said Nagappa also died about 18 years back leaving
behind his wife Nagamma and daughter Pillakka. The said
Pillakka is given in marriage to the 2nd Defendant. The said
Pedda Pillappa who is the senior paternal uncle of these
defendants died issue less and his wife Sonnamma died in the year
1996. The said Chowdappa, Junior paternal uncle of the
defendant 1 and 2 died in the year 1987 leaving behind his wife
Muniamma. The said Muniyamma also died in the year 1996.
The other brother of Chinnapillappa by name Sonnappa has got
two sons by names Rajappa and Basappa and a daughter by name
Chowdama. The said Chowdamma is given in marriage to the
said Gullamma's son Marisami.
10. Hence the 1st Plaintiff is not at all entitled to any share.
The house in S.No.461 of Moranapalli village is not included in
the suit. These Defendants 1 and 2 are entitled to 14/18 share in
the house property and also well in the S.No.469.
11. The suit has not been valued properly and correctly for
the purpose of Court fees and jurisdiction. If the suit is properly
valued, this Hon'ble Court will not have pecuniary Jurisdiction to
entertain the above suit.”
9. After hearing both side arguments, the learned District Munsif,
Hosur had framed the following issues which is available at Page 19 of the
typed set and it is as follows:
“1) thjpfs; tHf;Fiuapy; nfhupa[s;sgo jhth
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brhj;Jf;fis 49 rk ghf';fshfg; gpupj;J mjpy; 33 ghfj;ij
ghfkhf mila mUfija[ilatu;fsh>
2) thjpfs; tHf;Fiuapy; nfhupa[s;sthW Kjy; epiyj;
jPu;g;ghizia mDrupj;J ,Wjpepiyj; jPu;g;ghizg; bgwj;
jFjpahdtuh>
3) thjpfSf;F fpl;Lk; ,ju gupfhu';fs; vd;d>
4) thjpfs; jug;gpy; ,uz;lhk; thjpahd Rg;ukzp th/rh/1
Mf tprhupf;fg;gl;lhu;/ thjp jug;gpy; th/rh/M/1 Kjy; th/rh/M/3
tiuapyhd Mtz';fs; Fwpaplg;gl;lJ/ gpujpthjpfs; jug;gpy;
Kjy; gpujpthjp gp/rh/1 Mf tprhupf;fg;gl;lhu;/ gpujpthjpfs;
jug;gpy; Mtz';fs; Fwpaplg;gltpy;iy/”
10. The learned District Munsif, Hosur, had in his discussion of
evidence, observed as follows:
“,e;j tHf;fpy; gpujpthjpfspd; jfg;gdhUk;. 2 Kjy; 5
thjpfspd; jfg;gdhUkhd rpd;dgps;sg;gh vd;gtu;
gpujpthjpfspd; jhahuhd ghj;jpak;kh vd;gtiu KjyhtJ
jpUkzk; bra;Jf;bfhz;lhu;/ Kjy; kidtp ghj;jpak;kh vd;gtu;
capUld; ,Uf;Fk;nghJ Kjy; thjpahd bfsuk;kh vd;gtiu
,uz;lhtjhf jpUkzk; bra;Jf;bfhz;L thH;e;J te;j tifapy;.
2 Kjy; 5 thjpfs; gpwe;jhu;fs; vd;gij thjpfs; jug;gpy;
xg;g[f;bfhs;sg;gl;Ls;sJ. Mifahy; gpujpthjpfspd; jfg;gdhuhd
rpd;dgps;sg;gh vd;gtu; mtUila Kjy; kidtp capUld;
,Uf;Fk;nghJ. Kjy; thjpahd bfsuk;khs; vd;gtiu
,uz;lhtJ kidtpahf jpUkzk; bra;J thH;e;Js;shu; vd;gJk;.
mt;thW thH;e;j re;ju;g;gj;jpy;. 2 Kjy; 5 thjpfs; mtu;fSf;F
kfd;fs; kw;Wk; kfs;fshfg; gpwe;Js;shu;fs; vd;gjhYk;. Kjy;
thjpf;Fk; rpd;dg;gps;sg;gh vd;gtUf;Fkpilna ele;j
jpUkzkhdJ bry;yh epiyaJ jpUkzk; (void marriage)
vd;gJ ed;F bjspthfpwJ/ Mifahy;. nkny brhd;d jPu;g;gpy;
fz;Ls;s rl;lf; fUj;Jf;fspd; guprPypf;fg;gLk; gl;rj;jpYk;
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rpd;dg;gps;sg;gh vd;gtUf;Fk; Kjy; thjpf;Fkpilna ele;j
jpUkzk; bry;yh jpUkzk; (void marriage) vd;gjhy; me;j
jpUkzj;jpd; K:yk; gpwe;j Fhe;ijfshd 2 Kjy; 5 thjpfs;
kPJ ,Ue;j te;j rl;l ,irtw;w FHe;ijfs; vd;w FiwghL
ePf;fut[ bra;agl;lhYk;. rpd;dg;gps;sg;gh vd;gtUf;F ghj;jpag;gl;l
brhj;jpy; kl;Lnk ghfk; bgw mUfija[ilath;fs; vd;W ed;F
bjspthfpwJ/ Mifahy; nkny brhd;d jPu;g;gpy; fz;Ls;s
rl;lf; fUj;Jf;fs; kw;Wk; ,e;J jpUkzr;rl;lk; gpupt[ 16(3) y;
fz;Ls;sgo 2 Kjy; 5 thjpfs; rpd;dgps;sg;g vd;gtUf;F
ghfkhf xJf;fg;gl;l brhj;jpy; kl;Lnk ghfk; nfhu rl;lj;jhy;
m';fPfupf;fgl;Ls;sJ vd;gJ ed;F bjspthfpwJ/ nkny brhd;d
gpuptpy; Kjy; thjpf;Fk; mtUila fztuhd rpd;d gps;sg;gh
vd;gtUf;Fk; eilbgw;w jpUkzk; bry;yh epiyaJ jpUkzk;
(void marriage) vd;gjhy;. Kjy; thjpahdtu; jhth brhj;ijg;
bghUj;J ghfk; bgw mUfijaw;wtu; vd;W jPu;khdpf;fg;gLfpwJ/
Mifahy; jhth brhj;jhdJ rpd;dg;gps;sg;gh vd;gtUf;F
guk;giuahf ghj;jpag;gl;l brhj;J vd;gjhy; jhth brhj;Jf;fspy;
rpd;dgps;sg;gh kw;Wk; mtUila Kjy; kidtpapd; K:yk; gpwe;j
KjyhtJ kw;Wk; ,uz;lhtJ gpujpthjpfSk; nrh;e;J rkkhf
gphpj;Jf;bfhs;s rl;lj;jhy; m';fPfhpf;fg;gl;LsJ vd;gjhy; jhth
brhj;Jf;fis K:d;W rkghf';fshfg; gphpj;J xU g';if
rpd;dg;gps;sg;ght[k;. gpujpthjpfs; jyh xU g';Fk; ghfkhf
mila mUfija[ilath;fs;/ nkny brhd;d ghf
tpfpjhr;rhuj;ijf; fzf;fpLk; gl;rj;jpy;. jhth brhj;jpy;
rpd;dg;gps;sg;gh vd;gtUf;F K:d;wpy; xU g';F ghfk; cs;sJ
vd;gJ ed;F bjspthfpwJ/”
11. The learned Sub Judge, Hosur, in his discussion, had observed as
follows:
“7/ /// 2003-3-L.W. 621 [Rangasami vs. Kasiappa Gounder and
another] vd;w tHf;fpy; gpwg;gpf;fg;gl;l Kd;jPh;g;g[iu
Rl;of;fhl;lg;gl;lJ/ mjpy;
“Hindu Marriage Act (1955) Section 16 – Right of Child born
through the second marriage which is null and void is not
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available in the joint family property, that too, when the father is
alive.”
vd;W jPh;t[ fhzg;gl;Ls;sJ/ nkw;fz;l Kd;jPh;g;gpid
ghprPypf;Fk; nghJ mit ,e;j tHf;fpy; bghUz;ikfSf;F
bghUe;Jtjhfnt mike;Js;sJ/ mjpy; kpfj; bjspthfnt
,e;J jpUkzr; rl;lk; gphpt[ 1d; go Kiw jtwp gpwe;j
FHe;ijfisg; bghWj;J K:jhijah; brhj;jpy; ghfk; nfhu chpik
,y;iy vd;W jPh;t[ fhzg;gl;Ls;sjhy;. nkw;go Kd;jPh;g;g[
,t;tHf;fpd; bghUz;ikfSf;F bghUe;Jtjhfnt mike;Js;sJ/
gpujpthjpfs; jug;gpy; gpujpthjpna gp/rh/1 Mf tprhhpf;fg;gl;ljpy;
mtuJ rhl;rpaj;jpYk; rpd;dg;gps;sg;ght[ila
rnfhjuh;fSf;fpilna ghfnkw;g;gl;Ls;sij xj;Jf;bfhz;Ls;shh;/
kw;Wk; ,we;Jnghd rpd;dg;gps;sg;ghtpd; Kjy; kidtp
ghj;jpak;khs; kfd;fs;jhd; gpujpthjpfs; vd;gJk;
xj;Jf;bfhs;sg;gl;Ls;sJ/ kpfj;bjspthf gp/rh/1d;
rhl;rpaj;jpypUe;J ghj;jpak;kh capUld; ,Uf;Fk; nghJjhd;
rpd;dgps;sg;gh 1k; thjp bfsuk;khit jpUkzk; bra;J
bfhz;lija[k; mtuJ rhl;rpaj;jpypUe;J mwpaKofpd;wJ/
vdnt 1k; thjpahd bfsuk;khtpw;Fk; ,we;j
rpd;dg;gps;sg;ghtpw;Fkpilna ele;j jpUkzkhdJ ,e;J
jpUkzr; rl;lg;go jil bra;ag;gl;Ls;sjhy; me;j jpUkzk;
bry;yhepiyaJ vd;W ,e;j ePjpkd;wk; jPh;khdpf;fpd;wJ/ vdnt
1k; thjpahd bfsuk;kh jhth brhj;ijg; bghWj;J ghfk; bgw
mUfijaw;wth; vd;w ,e;j ePjpkd;wk; jPh;khdpf;fpd;wJ/ ,e;J
jpUkzr; rl;lk; gphpt[ 16(3) y; fz;Ls;s r';fjpfspd;go Kiw
jtwp gpwe;j FHe;ijfSk; mtuJ bgw;nwhh;fsplkpUe;J ghfk;
nfhu chpika[s;sbjd;gjhy; 2 Kjy; 5 thjpfisg;bghWj;J
,we;j rpd;dg;gps;sg;ght[ila. mtUf;F ghfkhf xJf;fg;gl;l
brhj;jpy; kl;Lnk ghfk; nfhu chpika[s;sJ vd;W ,e;j
ePjpkd;wk; jPh;khdpf;fpwJ/
8/ thjpfshy; jhf;fy; bra;ag;gl;l gpuhjpy; 1 Kjy; 5
thjpfs; kw;Wk; gpujpthjpfs; Mfpnahh;fis xd;whf rkkhf
ghtpj;J jhth brhj;jpid 33-49 ghfkhf gphpj;J mjpy;
gpujpthjpfSf;F 16-49 ghfk; kl;Lk; fpilf;ff;ToaJ vd
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bjhptpj;jpUe;jnghjpYk;. mt;thW ghfk; nfhu thjpfSf;F
chpikapy;iy/ gpujpthjpfs; jhf;fy; bra;j vjph; tHf;Fiuapy;
Fwpg;gpl;Ls;sthW jhth brhj;jpy; ,we;j rpd;dg;gps;sg;ght[f;Fhpa
brhj;ij bghWj;J ,we;j rpd;dg;gps;g;ght[f;Fk;. 1. 2
gpujpthjpfSf;fpilna brhj;ijg;bghWj;J 1-3 ghfkhf
gpupf;fg;gLk; gl;rj;jpy;. 1-18 ghfkhf gphpf;fntz;Lbkd;Wjhd;
Fwpg;gplg;gl;Ls;sJ/ mt;thW 1-18 ghfkhf gphpf;fg;gl;l
ghfj;jpy; je;ijahh; rpd;dg;gps;sg;ght[f;F xJf;fg;gl;l 1-3
ghfj;jpy; 2 Kjy; 5 thjpfSk;. gpujpthjpfSk; g';F bgw
jFjpa[ilath;fs;/”
12. The learned Counsel for the Respondents invited the attention of
this Court to Section 16 of the Hindu Marriage Act and therefore, as per the
submission of the learned Counsel for the Respondents, there is no proper
reason warranting interference by this Court. The Substantial Questions of
Law raised by the Appellants cannot be treated as Substantial Questions of
Law. There is no Substantial Questions of Law in this Appeal. Therefore, the
Appeal lacks merit and is to be dismissed.
13. This Court on 28.03.2025 had framed the following Substantial
Questions of Law:-
(i) Whether the Courts below erred in not taking into
account that the properties got by Chinna Pillappa in
partition with his brothers and sister Gullamma was his self-
acquired property under Section 8 of the Hindu Succession
Act and not under Section 6 of the Act?
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(ii) Whether the Courts below are right in holding that
the properties got by Chinna Pillappa in partition with his
brothers would be joint family properties of Chinna Pillappa
along with sons namely the Respondents born out of his first
wife Pathiamma?
14. Heard the learned Counsel for the Appellants
Mr.K.Chandrasekaran and the learned Counsel for the Respondents
Mrs.V.Srimathi.
15. Perused the records and the judgment dated 05.12.2007 passed in
O.S.No. 387 of 2004 by the learned District Munsif, Hosur and the judgment
dated 18.04.2009 passed in A.S.No.10 of 2008 by the learned Sub Judge,
Hosur.
16. It is relevant to refer Section 16 of the Hindu Marriage Act, 1955,
which reads as under:
16. Legitimacy of children of void and voidable
marriages.--(1) Notwithstanding that a marriage marriage is
null and void under section 11, any child of such marriage who
would have been legitimate if the marriage had been valid,
shall be legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment) Act,
1976 (68 of 1976), and whether or not a decree of nullity is
granted in respect of that marriage under this Act and whether
or not the marriage is held to be void otherwise than on a
petition under this Act.
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(2) Where a decree of nullity is granted in respect of a
voidable marriage under section 12, any child begotten or
conceived before the decree is made, who would have been the
legitimate child of the parties to the marriage if at the date of
the decree it had been dissolved instead of being annulled,
shall be deemed to be their legitimate child notwithstanding
the decree of nullity.
(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.
17. Here, the property was allotted to Chinna Pillapa in the family
partition. Therefore, it is his separate property. There is evidence available
before the trial Court that the Chinna Pillapa died intestate. As on the date of
death, he is survived by the Plaintiffs and Defendants. The first Plaintiff being
his second wife, as per Section 16 of the Hindu Marriage Act, she is not
entitled to claim any share. The Plaintiffs 2 to 5 are entitled to claim share. As
per the intention of the social legislation, S.16 intends to bring social reforms;
conferment of social status of legitimacy on a group of innocent children,
otherwise treated as bastards, is its prime object: Parayan Kandiyal Eravath
Kanapravan Kalliani Amma v. K.Devi J.T. (1996) 4 SC 656.
18. For the mistake of Chinna Pillapa and first Plaintiff having entered
into matrimonial relationship even during the life time of first wife, mother of
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S.A.No.920 of 2009
the Defendants 1 and 2. The Plaintiffs 2 to 5 cannot be discriminated in the
wrong committed by the parents. Therefore, it is the duty of the Court
exercising discretion under the principles of fairness, equity and good
conscience which governs a Civil Court in granting relief. The children of
Chinna Pillapa are to be treated as equals. Further, as per Section 6 of Hindu
Succession Act, the Suit was instituted in the year 2004. During the pendency
of the Suit, Section 6 of the Hindu Succession Act was amended in the year
2005 (39/2005). Therefore, coparcener by birth become a coparcener in her
right in the same manner as the son. Here, the father/Chinna Pillapa died
intestate. Therefore, the daughters are also entitled to equal share. The
arguments of the learned Counsel for the Appellant/Plaintiff is accepted in the
light of progressive legislation to Hindu Succession Act (Amendment) Act,
2005 (39/2005) and Section 6 of Hindu Marriage Act (68/1976) regarding
legitimacy of children in void and voidable marriage. A combined reading of
both Hindu Succession Act (Amendment) Act, 2005 (39/2005) and Section 6 of
Hindu Marriage Act (68/1976), the Judgment of the learned District Munsif,
Hosur, in O.S.No.387 of 2004 and the learned Sub Judge, Hosur, in A.S.No.10
of 2008 are found not in consonance with that of the progressive legislation
and the Judgment of the Hon'ble Supreme Court regarding removal of
discrimination between children born to void, voidable marriage and children
born as legitimate born in wedlock as per Hindu Marriage Act, 1955.
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S.A.No.920 of 2009
Therefore, the argument put forth by the learned Counsel for the Respondents
is rejected in the light of the amendment to Hindu Marriage Act, 2005
Amendment Act and the ruling of the Hon'ble Supreme Court in the case of
Vineetha Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1.
19. In the light of the above discussion, the Plaintiffs 2 to 5 and the
Defendants 1 and 2 are entitled to equal share in the estate left behind by
Chinna Pillapa. The Substantial Questions of Law are answered in favour of
the Appellants.
20. The Courts below had erred in arriving at a conclusion that the
property devolved on Chinna Pillapa was not his separate property. Both the
Courts below erred that the properties acquired by Chinna Pillapa was not his
self-acquired property under Section 8 of Hindu Succession Act and not under
Section 6 of Hindu Succession Act. It is to be treated as separate property of
Chinnapillappa. Both the Courts erred in holding that the properties got
Chinnapillappa were that the brothers would be joint family property along
with the Defendants (sons of Chinnapillappa) through his first
wife/Pathiamma. The property devolved on the Chinnapillappa is to be treated
as separate property and Chinnapillappa died intestate. Therefore, as per the
provisions of Section 16 of Hindu Marriage Act, the Plaintiffs 2 to 5 cannot be
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S.A.No.920 of 2009
discriminated based on the birth based on the status of the first Plaintiff as
second wife. Based on the ruling cited by the learned Counsel for the
Appellants in (1987) 100 MAD LW 347 [Commissioner of Wealth Tax,
Kanpur etc vs. Chander Sen], it is a separate property of Chinna Pillappa.
Also as per the ruling in the case of Yudishtar, it ought to have been 4/6 for the
Plaintiffs and 2/6 shares entitled to the Defendants. The shares are allotted by
the learned District Munsif, Hosur and as confirmed by the learned Sessions
Judge is found erroneous.
In the result, this Second Appeal is allowed. The Judgment dated
05.12.2007 in O.S.No.387 of 2004 passed by the learned District Munsif,
Hosur, is modified by granting shares equal to the Plaintiffs as that of the
Defendants. The Plaintiffs 2 to 5 and the Defendants 1 and 2 together will each
get 1/6 shares as per Section 6 of Hindu Succession Act and not as per Section
8 of Hindu Succession Act. The preliminary decree is granted in favour of the
Plaintiffs by granting 4/6 shares to the Plaintiffs. The Plaintiffs are directed to
proceed further with the final decree applications. No costs. Consequently,
connected miscellaneous petition is closed.
11.07.2025
Shl/dh
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S.A.No.920 of 2009
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The District Munsif,
Hosur.
2. The Sub Judge,
Hosur.
3. The Section Officer,
V.R.Section,
High Court, Madras.
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S.A.No.920 of 2009
SATHI KUMAR SUKUMARA KURUP, J.
shl/dh Pre-Delivery Judgment made in S.A.No.920 of 2009 11.07.2025 19/19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 23/10/2025 01:24:39 pm )