Kerala High Court
Divyalakshmi vs Bindu on 6 August, 2025
1
R.S.A. No. 1263 of 2014
2025:KER:60283
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RSA NO. 1263 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 01.04.2014 IN AS
NO.113 OF 2011 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
ARISING OUT OF THE JUDGMENT DATED 22.03.2011 IN OS NO.21 OF 2009
OF MUNSIFF COURT, HARIPAD.
APPELLANT(S)/APPELLANTS/DEFENDANTS:
1 DIVYALAKSHMI
AGED 27 YEARS, D/O. DAKSHAYANI,
LAKSHMI NIVAS, KARAKKADU P.O., CHENGANNUR.
2 DAKSHAYANI
AGED 71 YEARS, W/O. SADASIVAN,
LAKSHMI NIVAS, KARAKKADU P.O., CHENGANNUR.
BY ADVS.
SRI. T. SETHUMADHAVAN (SR.)
SRI. M. R. ARUNKUMAR
SRI. P. SHAMMI NAVAS
SMT. DEEPA NARAYANAN
SRI. K. SUJAI SATHIAN
SMT. PREETHI P. V.
SMT. MARY LIYA SABU
SMT. AISWARYA S. ASHOKAN
SRI. NEERAJ KRISHNA KUMAR
SMT. AYISHA BASILA ASHARAF
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:
1 BINDU
AGED 43 YEARS, D/O. KAMALAKSHMI,
MULAMOOTTIL VEEDU, CHINNAKKADA P.O., KOLLAM.
2
R.S.A. No. 1263 of 2014
2025:KER:60283
2 SUBIN (MINOR)
AGED 13 YEARS, MULAMOOTTIL VEEDU,
CHINNAKKADA P.O., KOLLAM - REPRESENTED BY HER
GUARDIAN BINDU, 1ST RESPONDENT.
3 SACHIN (MINOR)
AGED 11 YEARS, MULAMOOTTIL VEEDU,
CHINNAKKADA P.O., KOLLAM - REPRESENTED BY HER
GUARDIAN BINDU, 1ST RESPONDENT.
BY ADV.
SRI. AJAYA KUMAR G - R1 TO R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
06.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
R.S.A. No. 1263 of 2014
2025:KER:60283
EASWARAN S., J.
--------------------------
R.S.A. No. 1263 of 2014
-------------------------
Dated this the 06th day of August, 2025
JUDGMENT
The defendants in a suit for partition have come up in the present appeal aggrieved by the concurrent findings against them in O.S. No. 21 of 2009 of the Munsiff Court, Haripad and in A.S. No. 113 of 2011 of the Additional District Court - I, Mavelikkara.
2. The brief facts necessary for the disposal of the appeal are as follows:
One Sadasivan, in his first marriage with Dakshayani had one daughter named Divyalekshmi, the 1st defendant. Later, during the subsistence of the first marriage, it appears that, Sadasivan had married the 1st plaintiff, Bindu and their marriage is solemnized on 07.02.1999 as per the Hindu rituals and ceremonies. In the second wedlock between Sadasivan and the 1st plaintiff, Bindu, two children were born; plaintiffs 2 and 3. On 12.09.2002, Sadasivan died. Sadasivan had left behind 1 acre 12 cents of land in Karthikappally Village and that the properties were in joint possession of the 1st plaintiff and the 4 R.S.A. No. 1263 of 2014 2025:KER:60283 defendants. Since the death of Sadasivan, though the plaintiffs demanded partition, the same was refused and hence the suit. Initially, only the 1st defendant was impleaded in the suit. The 1st defendant contended that since Dakshayani, the first wife of Sadasivan is also a necessary party, the plaintiffs impleaded Dakshayani as the 2 nd defendant. The defendants resisted the suit by contending that the 1 st plaintiff is not the legally wedded wife of late Sadasivan and that plaintiffs 2 and 3 are not the children of late Sadasivan born in the alleged wedlock with the 1st plaintiff. O.S. Nos. 320 and 392 of 2002 were two suits instituted by the creditors of late Sadasivan and that the defendants alone discharged the liability. The suit having been filed after 7 years of death of Sadasivan was clearly at the instigation of the brother of Sadasivan. It is further contended that the 1st plaintiff was a house maid in the house of the brother of late Sadasivan and hence the suit is of a collusive nature. On behalf of the plaintiffs Exts. A1 and A2 documents were produced and PW1 to PW3 were examined and on behalf of the defendants Exts. B1 to B3 documents were produced and DW1 was examined. The Trial Court, on appreciation of the oral and documentary evidence, came to the conclusion that the marriage 5 R.S.A. No. 1263 of 2014 2025:KER:60283 between the 1st plaintiff and late Sadasivan was solemnized during the subsistence of a valid marriage with the 2nd defendant and, therefore, the marriage cannot be said to be a valid one. However, as regards the entitlement of the plaintiffs 2 and 3 to claim share over the deceased Sadasivan's property, the Trial Court held that they are entitled for share along with the defendants 1 and 2 and accordingly, the Trial Court decreed the suit by passing a preliminary decree and declared that the plaintiffs 2 and 3 were entitled to get 1/4th share and defendants 1 and 2 are entitled to get 1/4th share.
Aggrieved by the judgment and decree, the defendants preferred A.S. No. 113 of 2011 before the Additional District Court - I, Mavelikara. The First Appellate Court, on reappreciation of the evidence confirmed the findings of the Trial Court and dismissed the appeal and, hence, the present second appeal.
3. When the appeal was admitted to file, by order dated 29.01.2016, this Court framed the substantial questions of law as framed in the appeal, which reads as follows:
i. Were the Courts below right in holding that plaintiff No. 2 and 3 are entitled to get 1/4th share each and defendant No. 1 and 2 are entitled to get 1/4th share each without a prayer in the plaint that the declaration of paternity with respect to the plaintiff No. 2 and 3 was 6 R.S.A. No. 1263 of 2014 2025:KER:60283 born out from the deceased P.K. Sadasivan is the father and Plaintiff No. 1 is the mother?
ii. Were the Courts below right in holding that plaintiffs No. 2 and 3 is entitle to get the right of inheritance in the property owned and possessed by the appellants without seeking a declaratory relief of paternity and non production of higher degrees of proof of paternity? iii. Were the Courts below right in holding that the plaintiff No. 2 and 3 is the children of deceased P.K. Sadasivan only on the basis of oral and documentary evidence of PWs 1 to 3 and Exhibit A1 and A2 documents without resorting to the conduct of scientific test such as DNA Test to find out the question that whether P.K. Sadasivan is the biological father of Plaintiffs No. 2 and 3?
iv. Whether the Courts below right in holding that Plaintiffs Nos. 2 and 3 is the children of the deceased, P.K. Sadasivan without the production of evidence under Section 45 and 46 of the Indian Evidence Act ?
v. Whether the Courts below right in holding that the paternity of the illegitimate children can be proved under Section 112 of Indian Evidence Act without go into the evidence under Section 45 and 46 of Indian Evidence Act?
vi. Were the Courts below right in holding that the marriage between the 1st plaintiff and deceased P.K. Sadasivan was solemnized on 7.2.1999 at Kottayamkunnil Subramanya Swami Temple, Nedumkolan, Kollam as per the rituals and ceremonies without sufficient proof of marriage?
vii. Whether the Courts below right in holding that right of inheritance on the immovable property of a male dying intestate under Section 8 of Hindu Succession Act 1956 available to the illegitimate children of the deceased P.K. Sadasivan overlooking the law laid down by this Honourable Court in Shyamalavally Amma Vs. Kavalan Jisha reported in 2007 (3) KLT-270.
7R.S.A. No. 1263 of 2014
2025:KER:60283
4. Heard Sri. T. Sethumadhavan, the learned Senior Counsel appearing for the appellants assisted by Sri. M. R. Arunkumar and Sri. G. Ajayakumar appearing for the 1st respondent.
5. Sri. T. Sethumadhavan, the learned Senior Counsel appearing for the appellants raised the following submissions:
(a) The marriage of the 1st plaintiff with deceased Sadasivan was solemnized on 07.02.1999 and admittedly, at that time the first marriage was subsisting, and it was not dissolved.
(b) The plaintiff 2 and 3 were born respectively on 02.06.2000 and 01.10.2001 within a span of one year and 4 months and the short gap between their date of birth probabilizes the defence of the appellants that the plaintiffs 2 and 3 are not the children born out of the wedlock between late Sadasivan and the 1st plaintiff.
(c) Except from Exts. A1 and A2 birth certificates, no other evidence has been adduced by the plaintiffs to substantiate their claim that plaintiffs 2 and 3 are born in the wedlock of late Sadasivan and the 2nd plaintiff.
(d) The fact that the liabilities of late Sadasivan was discharged by the defendants and the suit having filed 7 years after the death of 8 R.S.A. No. 1263 of 2014 2025:KER:60283 Sadasivan would clearly indicate that the suit is set up by none other than the brother of deceased Sadasivan.
(e) The specific case set out by the defendants is that the 1 st plaintiff was working as a house maid in the house of PW3 who is the brother of the deceased Sadasivan and the entire suit is instigated at his instance.
(f) It is further pointed out that, when the status of plaintiffs 2 and 3 were denied by the defendants, the Court below ought to have ordered the plaintiffs 2 and 3 to undergo the paternity test in order to establish, beyond doubt, that they are the children of late Sadasivan.
In support of his contention, he has relied on the decision of the Single Bench of this Court in Sathyaraj v. Jayaprakash [2008 (3) KHC 171].
(g) Lastly, it is contended that even if it is assumed for a moment that plaintiffs 2 and 3 are the legitimate children of late Sadasivan, unless and until the condition prescribed under Section 3(1)(j) of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for short) is satisfied, they will not get any right to claim property of late Sadasivan by inheritance. In support of his contention, he has relied on the decision of the learned Single Bench of this Court in Chodon 9 R.S.A. No. 1263 of 2014 2025:KER:60283 Puthiyoth Shyamalavalli Amma and Others v. Kavalam Jisha and Another [ 2007(2) KHC 976]. It is further contended that the Trial Court as well as the First Appellate Court were engrossed in not directing the plaintiffs 2 and 3 to appear for the paternity test. The power of the Court to direct the parties to undergo a paternity test cannot be considered as a violation of the right to personal liberty under Article 21 of the Constitution of India. In support of his contention, he has relied on the decision of the Supreme Court in Sharda v. Dharmpal [2003 (4) SCC 493].
6. Per contra, Sri. G. Ajayakumar, the learned Counsel appearing for the 1st respondent contended that apart from an oral assertion before this Court that the plaintiffs 2 and 3 ought to undergo the paternity test, no specific request was made before the Trial Court as well as the First Appellate Court by the defendants. The solemnization of the marriage between the 1st plaintiff and the late Sadasivan was successfully established by oral testimony of PW2 and PW3. The mere discrimens in Exts. A1 and A2 birth certificates are not conclusive enough to prove that, the plaintiffs 2 and 3 are not the children of late Sadasivan. The learned Counsel further submitted that 10 R.S.A. No. 1263 of 2014 2025:KER:60283 the marriage between the 2nd defendant and late Sadasivan subsisted only for 9 years which is evident from the oral testimony of PW1. It is because of the 2nd defendant neglecting to take care of late Sadasivan, that late Sadasivan married the 1st plaintiff on 07.02.1999. It is further contended that the argument of the learned Senior Counsel for the appellants that in order to claim right by inheritance for the illegitimate child, lineal descendant should be traced through the mother in terms of the conditions prescribed under Section 3(1)(j) of the Act is untenable in light of the decision of the Supreme Court in Revanasiddappa v. Mallikarjun [2023 (5) KHC 486]. As regards the plea that the plaintiffs 2 and 3 did not subject themselves to the paternity test, Sri. Ajayakumar, the learned Counsel for the 1st respondent would submit that in the light of the decisions of this Court in Pathukala Sakkariya v. Salman Faris [2012 KHC 2965] and the decision of the Supreme Court in Ivan Rathinam v. Milan Joseph [2025 KHC 6076], it is up to the Courts to take a call on the question as to whether the party should be subjected to paternity test. Inasmuch as, both the Trial Court as well as the First Appellate Court did not find it expedient to order the plaintiffs 2 and 3 to appear for the paternity test, the appellants 11 R.S.A. No. 1263 of 2014 2025:KER:60283 cannot successfully maintain the said contention before this Court. Since both the Courts have concurrently found against the defendants, the present appeal is only liable to be dismissed.
7. I have considered the rival submissions raised across the Bar and I have perused the judgments rendered by the Courts below and also the records of the present case.
8. To answer the questions of law framed in the memorandum of appeal, this Court needs to consider the question as to whether the plaintiffs were successful in proving the solemnization of the marriage between the 1st plaintiff and late Sadasivan. In this context, this Court should first notice that oral evidence of PW2 and PW3 is available. PW2 is the uncle of the 1st plaintiff and PW3 is the brother of late Sadasivan. Even if the oral testimony PW2 is excluded, being the uncle of the 1 st plaintiff, the evidence of PW3 cannot be brushed aside lightly as contended by the learned Counsel for the respondents. Though extensively cross-examined PW3, defendants could not elicit any contradictory statements in his oral testimony. As regards the contention that, the 1st plaintiff was a house maid in the residence of PW3, except for a vague assertion in the written statement, nothing has 12 R.S.A. No. 1263 of 2014 2025:KER:60283 been brought out by cross examining PW3 to support the statement. It is also not clear that PW3 had any animosity with late Sadasivan in order to support the plaintiffs to deny the rightful claim of the defendants over the plaint schedule property.
9. Coming to the discrepancy pointed out through Exts. A1 and A2 birth certificates, on a perusal of Exts. A1 and A2, it is evident that in Ext. A1 the initial of late Sadasivan is mentioned as 'G' whereas in Ext. A2, the initial is not stated. The discrepancy as noticed above is not enough to disprove the claim of plaintiffs which is otherwise supported by the evidence of PW3. Both the Courts below have concurrently found in favour of the plaintiffs based on the sole testimony of PW3. Therefore, the entire consideration of this appeal hinges upon 'how this Court views the oral testimony of PW3 and that whether there is any perverse appreciation of evidence by the Courts below as regards the oral testimony of PW3?'. Read as may, this Court is not persuaded to hold that the appreciation of evidence of PW3 by the Courts below are perverse warranting interference under 100 of the Code of Civil Procedure. As regards, the claim of the appellants that the Courts below ought to have ordered paternity test of the 13 R.S.A. No. 1263 of 2014 2025:KER:60283 plaintiffs 2 and 3 in order to establish that they are legal children of Sadasivan, this Court finds that, it is not an invariable rule that as soon as the paternity of a person is denied, the Courts should always order the opposite party to undergo the paternity test. Compelling circumstances should exist before the Court to order the paternity test in order to resolve the dispute. If otherwise, the Courts can resolve the dispute with the attendant evidence, it is not necessary that the persons should always be subjected to undergo the paternity test. In this context, this Court takes note of the judgment of the Supreme Court in Ivan Rathinam (supra) wherein the Supreme Court had held that the Courts are bound to protect the parties' right to privacy and dignity and also by evaluating the social stigma from one of them being declared illegitimate to cause disproportionate harm. Paragraph 36 of the judgment reads as under;
"36. On one hand, courts must protect the parties' rights to privacy and dignity by evaluating whether the social stigma from one of them being declared 'illegitimate' would cause them disproportionate harm. On the other hand, courts must assess the child's legitimate interest in knowing his biological father and whether there is an eminent need for a DNA test."14
R.S.A. No. 1263 of 2014
2025:KER:60283
10. In Pathukala Sakkariya v. Salman Faris [2012 KHC 2965], Single Bench of this Court held that only in exceptional and deserving cases where such a test becomes indispensable to resolve the controversy, the Court can direct such test. Paragraph 6 of the judgment reads as follows:
6. Though referring to S. 112 of the Evidence Act (for short, "the Act") it was held In Goutam Kundu v. State of West Bengal (AIR 1993 SC 2295) that courts in India cannot order blood test as a matter of course, whatever applications are made for such prayer in order to have a roving inquiry, the prayer for blood test cannot be entertained and that there must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under S.112 of the Act. Further guidelines issued by the Supreme Court are that court may carefully examine as to what would be the consequence of ordering the blood test: whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman and further that no one can be compelled to give sample of blood for analysis. In Sunil v. Leelavati (supra) again referring to S.112 of the Act the Bombay High Court held that merely because either of the parties have disputed the factum of paternity does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an Inference or adverse inference on the basis of such evidence or the controversy in issue cannot be resolved without a DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases where such a test becomes 15 R.S.A. No. 1263 of 2014 2025:KER:60283 indispensable to resolve the controversy the Court can direct such test. In any case it cannot be ordered as a matter of routine. Court should record reasons as to how and why such test in the case is necessary to resolve the controversy and is indispensable. Later decision of this Court is Ramakrishnan v. Ramdas (supra) where it is held that the Civil Court has implicit power to direct the parties to undergo DNA test if it finds that will lead to the truth of the matter to be unraveled in the suit.
11. The crust of the contention of the appellants appears to be that the Courts below ought to have made the plaintiffs 2 and 3 to undergo the paternity test. From the evidence adduced by the plaintiff especially the evidence of PW3 and also coupled with the evidence of DW1 who is the 2nd wife of Sadasivan and who was extensively cross examined and who did not seriously challenge the paternity of the plaintiffs 2 and 3 while being cross examined would lead to an irresistible conclusion that the 2nd defendant was not serious as regards the acceptance of the paternity of plaintiffs 2 and 3. Furthermore, this Court cannot remain oblivious of the fact that the defendants never sought the plaintiffs 2 and 3 to undergo the paternity test through an appropriate application being filed before the Trial Court. Had such an application been filed and the plaintiffs 2 and 3 refused to be subjected to the paternity test, possibly, a different conclusion could have been 16 R.S.A. No. 1263 of 2014 2025:KER:60283 drawn in the present case. Having not done so, this Court is not persuaded to accept the argument of the learned Senior Counsel for the appellants.
12. Coming to the next contention regarding the applicability of Section 3(1)(j) of the Act, it is the specific case of the Sri. T. Sethumadhavan, the learned Senior Counsel that going by the decision of this Court in Chodon Puthiyoth Shyamalavalli Amma (supra) that an illegitimate child is entitled to inherit the estate of the father only if the marriage of the parent was solemnized and was null and void as provided under Section 11 of the Act and that such descendancy has to be traced through the female relative as provided under Section 3(1)(j) of the Act, this Court finds that the said proposition cannot be accepted for multiple reasons. As regards the contention that the marriage between the 1st plaintiff and late Sadasivan was never solemnized, this Court has already found that the appreciation of the evidence of PW3 by the Courts below are not perverse warranting interference by this Court under Section 100 of Code of Civil Procedure. If that be, what remains is to consider the impact of Section 3(1)(j) of the Act. It is in this context, this Court must 17 R.S.A. No. 1263 of 2014 2025:KER:60283 consider the decision of the Supreme Court in Revanasiddappa (supra). Paragraph 52 of the judgment is extracted as under:
52. J. The referring judgment revisited The two Judge Bench of this Court in its referring judgment has observed that:
(i) The decision in Jinia Keotin (which has been followed in Neelamma) and later in Bharatha Matha has taken a narrow view of S.16(3) of the HMA 1955;
(ii) The legislature has used the expression 'property' in S.16(3) but is silent on whether such property is meant to be ancestral or self -
acquired:
(iii) S.16 contains an express mandate that such children are only entitled to the property of their parents and not of any other relation;
(iv) Children who are declared to be legitimate under sub-section (1) or sub-section (2) of S. 16 'cannot be discriminated against and they will be on a par with other legitimate children' and are entitled to all the rights in the property of their parents both self-acquired and ancestral:
(v) The prohibition in S.16(3) will apply to such children with respect to property of any person other than the parents,
(vi) With changing social norms what was illegitimate in the past may be legitimate today and Hindu law itself has not remained static with changes in society:
(vii) The HMA 1955 is a beneficent legislation intended to bring about social reforms and hence the interpretation of S. 16(3) needs to be reconsidered;
(viii) Amended S.16 alters the common law position that a child of a marriage which is void or voidable is illegitimate ipso jure but that 18 R.S.A. No. 1263 of 2014 2025:KER:60283 benefit is available only when there is a marriage and the marriage is void or voidable in view of the HMA 1955;
(ix) In the case of joint family property such children would be entitled to a share only in the property of their parents but cannot claim it in their own right. On the partition of ancestral property, the property falling to the share of the parents of such children is regarded as their self acquired and absolute property, and there is 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 a valid marriage. However, the only limitation is that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of the parent;
(x) The interpretation of the Court must be guided by the constitutional principle of individual dignity. Hence, though, the relationship between the parents may not be sanctioned by law but the birth of a child in such a relationship must be viewed independently. However, there still exists some limitation of the property rights of the children in that their right is confined to the property of their parents; and
(xi) S. 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 and hence such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral.
12.1. In the above said decision, the Supreme Court was called upon to interpret Section16 of the Hindu Marriage Act and also the provisions the Hindu Succession Act. While concluding, in paragraph 54, it was held as follows:
"54. K. Conclusion We now formulate our conclusions in the following terms: 19 R.S.A. No. 1263 of 2014
2025:KER:60283 (1) In terms of sub-section (1) of S.16, a child of a marriage which is null and void under S. 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;
(ii) In terms of sub-section (2) of S. 16 where a voidable marriage has been annulled by a decree of nullity under S.12, a child begotten or conceived before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;
(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub-section (3) of S. 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;
(iv) While construing the provisions of S.3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by S. 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of S. 16 of the HMA would, for the purposes of S.3(1)(j) of the HSA 1956, fall within the ambit of the explanation 'related by legitimate kinship' and cannot be regarded as an 'illegitimate child' for the purposes of the proviso;
(v) S.6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of S.6, equal rights have been granted to daughters, in 20 R.S.A. No. 1263 of 2014 2025:KER:60283 the same manner as sons as indicated by sub-section (1) of S.6;
(vi) S.6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of S.6 with effect from 9 September 2005 by the Amending Act of 2005, S.6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-
section (3) of S.6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of S.6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm;
(vii) S.8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. S.10 provides for the distribution of the property among heirs of Class I of the Schedule. S.15 stipulates the general rules of succession in the case of female Hindus dying intestate. S. 16 provides for the order of succession and the distribution among heirs of a female Hindu;
(viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, S.6(3) lays down a legal fiction namely that the coparcenary property shall be deemed to have been divided as if a partition had taken place. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been 21 R.S.A. No. 1263 of 2014 2025:KER:60283 allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition;
(ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under S. 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and
(x) The provisions of the HSA 1956 have to be harmonized with the mandate in S.16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above. The Supreme Court held that while construing provisions under Section 3(1)(j) of the Act including the proviso, the legitimacy which is conferred under Section 16 of the Hindu Marriage Act, 1955 on a child born from a void or a voidable marriage has to be read into the provisions of the Act. Therefore, applying the principles laid down by the Supreme Court in the present case, it is inevitable for this Court to conclude that even if the marriage between the 1st plaintiff and late 22 R.S.A. No. 1263 of 2014 2025:KER:60283 Sadasivan was solemnized during the subsistence of the 1st marriage with the 2nd defendant, plaintiffs 2 and 3 cannot be denied their rightful share to inherit out of the properties left behind by late Sadasivan. Therefore, viewed in the above perspective, this Court does not find any illegality or infirmity in the view taken by the Courts below warranting interference in the present second appeal.
Resultantly, answering the substantial questions of law raised in the memorandum of appeal against the appellants, this Court finds that the appeal lacks merits and is liable to be dismissed. Hence, the present appeal is dismissed. Parties are directed to suffer respective costs.
Sd/-
EASWARAN S. JUDGE Svn