Andhra HC (Pre-Telangana)
Goureshetty Srinivas vs Gouresheety Ramalingam And Ors. on 28 June, 2002
Equivalent citations: 2002(6)ALD618
JUDGMENT C.Y. Somayajulu, J.
1. 2nd plaintiff in OS No. 40 of 1982 on the file of the Court of the Subordinate Judge, Nizamabad who was brought on record as the sole legal representative of the deceased minor plaintiff is the appellant.
2. The appellant, on behalf of her minor son, filed the suit seeking partition of the half share of her minor son, the plaintiff, in the properties specified in the schedules appended to the plaint, inter-alia alleging that the 1st respondent, her husband, having neglected her and her minor son, (the plaintiff), had brought and kept the 3rd respondent as his permanent concubine and begot the 2nd respondent through her. After the death of her minor son during the pendency of the suit in the trial Court, appellant brought herself on record as 2nd plaintiff in her capacity as his legal representative. The case of the 1st respondent is that all the properties shown in the plaint schedules are not the joint family properties and that some of them are his self-acquired properties. The case of Respondents 2 and 3 is that 1st respondent married 3rd respondent with the consent of the appellant and since all the properties are self-acquired properties of 1st respondent, deceased minor plaintiff has no share therein. On the basis of the evidence adduced by the parties the trial Court held that the lorry shown in the plaint B schedule, and the land in Sy.No. 326 and part of Sy.Nos. 1296 and 1336, shown in plaint A Schedule are the self acquired properties of the 1st respondent, and that 1.34 guntas in Sy.No. 1336 and 0.4 guntas in Sy. No. 1296 of the plaint A schedule and house bearing No. 6.30, i.e., item No. 2 of plaint 'B' schedule only are the joint family properties and passed a preliminary decree for partition of only to 1/3rd share in the properties which are held to be joint family properties, on the basis that 2nd respondent as son of respondents I and 3 is also entitled to 1/3rd share in the joint family properties.
3. This appeal is filed questioning the finding of the trial Court that appellant is entitled only to 1/3rd share in the joint family properties, but not on other findings. So, the only point for consideration is the appeal is to what share is the appellant entitled to in the joint family properties.
4. The learned Counsel for the appellant, placing strong reliance on Shantaram v. Dagubai, , Perumal Gowdar v. Panchayappan, , Jagarlamudi Sujata v. Jagarlamudi Jagadish Krishna Prasad, , and P.E.K. Kalliani Amma v. K. Devi, , contended that since the marriage that allegedly took place between respondents 1 and 3 during the subsistence of the marriage between the appellant and 1st respondent is void, 2nd respondent, who is the son of respondents 1 and 3, will not be entitled to any share in the joint family properties and so the minor plaintiff, and consequently the appellant, has half share in the joint family properties. The contention of the learned Counsel for the respondents is that though the marriage between respondents 1 and 3 is void, in view of Section 16 of the Hindu Marriage Act, 1955 (for short the Act) their son 2nd respondent has the status of a legitimate son and so he also is entitled to a share in the joint family properties.
5. The marriage between the appellant and the 1st respondent admittedly took place long prior to 3rd respondent entering into the life of 1st respondent. So, even assuming that 3rd respondent was married to the 1st respondent and is not his concubine, since the marriage between respondents 1 and 3 was during the subsistence of the marriage between appellant and 1st respondent, the same would be a void marriage in view of Section 11 read with Section 5(i) of the Act. So, the status of 2nd respondent is governed by Section 16 of the Act.
Prior to 1976 Amendment to the Act, Section 16 read :
16. "Where a decree no nullity is granted in respect of any marriage under Section 11 or 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 it had been dissolved in stead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity;
Provided that nothing contained in this section shall be construed as conferring upon any child to a marriage, which is declared null and void or annulled by a decree of nullity 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 of acquiring any such rights by reason of his not being the legitimate child of his parents."
Since some High Courts took the view that unless a decree of nullity is obtained, children born out of void or voidable marriages cannot take advantage of Section 16 of the Act, Section 16 of the Act was amended in 1976.
After 1976 amendment, Section 16 of the Act reads:
"16. Legitimacy of children of void and voidable marriages :--(1) Notwithstanding that a marriage is null and void under Section 11, and 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 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.
(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 marriage which is null and void or which is annulled by a decree of nullity under Section 12, and 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."
In view of the language employed in Sub-section (1) of Section 16 of the Act children born prior to 1976 amendment also would be governed by that section. Therefore, the date of birth of the 2nd respondent is not of much relevance and consequently the fact that the age of 2nd respondent is shown as 5 years in the plaint filed in 1982 is of no consequence. But virtue of Section 11 of the Act that the marriage between respondents 1 and 3 is void, and so, but for Section 16 2nd respondent would have been their as illegitimate son.
6. The Supreme Court in Singari Ajit Kumar v. Vujayan Singh, , while considering the position and rights of an illegitimate son held as follows:
"(a) He has a status of a son under the Hindu Law and he is a member of the father's family;
(b) Compared to the rights of a son born in lawful wedlock, his rights are limited in that he has no right by birth and cannot demand partition during the father's lifetime;
(c) During the father's life-time, he can take only such share as father may give him.
(d) On his father's death, he takes his father's self-acquired property along with the legitimate son and in case the legitimate son dies he take the entire property by survivorship;
(e) Even if there is no legitimate son, he is entitled only to a moiety of the father's estate when there is widow or daughter or daughter's son of the last male, but in the absence of any these he is entitled to entire estate of the father.
(f) Even an illegitimate son succeeds to the half estate along with the widow of the father, who takes the other half, he is entitled to succeed to the other half also when the widow dies subsequent without leaving a daughter or daughter's son.
(g) An illegitimate son or daughter are entitled to maintenance by their putative father during the minority or illegitimate daughter is entitled to maintenance till she marries. The said rights are recognised as legal and enforceable rights."
In Shantaram's case (supra) it is held that in view of the wording of Section 16(3) of the Act, the property to which the child could lay a claim would be the separate property of the father and not the coparcenary property in which the father has a share. The same is the view taken by the Madras High Court in Perumal Gouder's case (supra) and our High Court in Jagarlamudi Sujatha's case (supra). In P.E.K. Kalliani Amma 's case (supra), it is held that in view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, have all the rights of legitimate children including succession to the properties of their parents but they cannot, however, succeed to the properties of any other relation on the basis of this rule as its operation is limited to the properties of the parents only.
7. In view of the above legal position it is clear that what is conferred by Section 16 of the Act on a child born out of a void or voidable marriage, is the status of a legitimate son, for a limited purpose only and such status would entitle him or her to succeed to the estates of his parents only, but not the properties of the other relatives of the family and thus statutorily recognised the principles laid down by the Supreme Court in Singari Ajit Kumar (supra), with regard to the status of an illegitimate child and so, 2nd respondent, though has the status of a legitimate son, in view of the legal fiction created by Section 16 of the Act, cannot attain the status of a coparcener of the 1st respondent, and so he would not get a right by birth in the joint family properties of the 1st respondent and the minor plaintiff. He would only be entitled to a share in his father's, i.e., 1st respondent's share in the joint family property and the separate properties of 1st respondent.
8. Since the deceased minor-plaintiff and 1st respondent alone were the coparceners of the joint family by the date of filing of the suit, they had half share in the co-parcenary properties, but not 1 3rd as held by the trial Court. So, I hold that the appellant has half share in the joint family properties. The point is answered accordingly.
9. In the result, the appeal is allowed and the decree of the trial Court is modified. A preliminary decree is passed for partition of Ac.1.34 guntas in Survey No. 1336, Ac.0.4 guntas in Sy.No. 1296, i.e., items 2 and 3 of plaint A schedule and house bearing No. 6-30 i.e., item No. 2 of plaint B schedule into two equal shares and for allotment of one such share to appellant. Parties are directed to bear their own costs in the appeal.