JUDGMENT
AR. Lakshmanan, J.
1. Defendants 1 and 4 are the appellants in this appeal. The 1st respondent is the plaintiff and respondents 2 to 4 are defendants 2, 3 and 5. Respondents 2 to 4 viz., defendants 2, 3 and 5 were given up since they remained exparte.
2. The 1st respondent/ plaintiff filed the suit for partition of the suit properties, which are admittedly joint family properties having been allotted to the share of his father (1st defendant) in a partition between him, his brother and their father. The plaintiff’s case is as follows: The plaintiff is the undivided son of the 1st defendant. His mother Rajammal/3rd defendant was married to the Ist defendant about 25 years prior to the suit according to the custom obtaining in the community to which they belong. Two sons were born to the 1st defendant through the 3rd defendant. The plaintiff is one of the sons. The other son, who was elder to the plaintiff, died a few months after his birth.
3. The 1st defendant married a second wife. The plaintiff’s mother 3rd defendant preferred a complaint against the 1st defendant under Section 494 of the Indian Penal Code in C.C. No. 34 of 1960 on the file of the Additional First Class Magistrate No. 2, Salem, and at the intervention of some mediators, the parties compounded the offence.
4. The 1st defendant obtained from the plaintiff’s maternal grand-father/2nd defendant, who purported to act as the guardian for the plaintiff; a document alleged to be a release deed releasing the share of the plaintiff in the joint family properties for a stated consideration of Rs. 2,500. The said document was executed on 31.7.1960 and marked as Ex.A-1. According to the plaintiff Ex.A-1 is void and inoperative in law. The 2nd defendant, grandfather of the plaintiff was neither a de facto nor dejure guardian of the plaintiff. The plaintiff was, at that time, under the care and protection of his mother, the 3rd defendant. In law, the father is the natural guardian and next to him, the mother is the natural guardian, and when both the father and the mother of the plaintiff are alive, the 2nd defendant, who is the maternal grandfather of the plaintiff had no right to act as the guardian on behalf of the plaintiff and execute any document on his behalf. Further there was absolutely no necessity to release the plaintiff’s share in the joint family properties much less for a grossly inadequate consideration of Rs. 2,500.
5. The plaintiff would submit that under the Hindu Minority and Guardianship Act, 1956 even the natural guardian cannot dispose of the minor’s property without the previous sanction of the court. Ex.A-1 executed by the 2nd defendant Subbaraya Gounder, maternal grand-father of the plaintiff, dealing with the plaintiff’s share in the joint family properties, is absolutely void under the provisions of the Hindu Minority and Guardianship Act. Ex.A-1 release deed is void in law and has no legal effect and is non-est. The plaintiff must, therefore, be deemed to be continuing to be a joint family member and must be deemed to be in joint constructive possession of the suit properties, which are joint family properties. In the absence of a release deed, the properties continued to be joint family properties of the plaintiff and the 1st defendant, and the plaintiff is, therefore, entitled to a half share in the properties.
6. The plaintiff issued a notice to the 1st defendant on 6.2.1975 demanding partition and separate possession of his half share in the suit properties. A reply dated 18.2.1975 was sent by the 1st defendant containing false and untenable allegations.
7. The sole defendant Athiappa Gounder filed a petition in I.A. No. 732 of 1979 to implead defendants 2 and 3 as parties to the suit and the said petition was allowed. Defendants 4 and 5, who are the sons of the 1st defendant through one Valliammal, were added as per orders in I.A. No. 105 of 1987 dated 11.3.1987. According to the plaintiff, defendants 2 to 5 are unnecessary parties and they have been added only at the instance of the 1st defendant.
8. The 1st defendant claims that he has married a second wife and through her he has two sons viz., defendants 4 and 5. The plaintiff’s mother/3rd defendant gave a complaint of bigamy against the 1st defendant before the Addl. First Class Magistrate No. 2, Salem, and in that case, the 1st defendant denied having contracted a second marriage. In these circumstances there could not have been any valid marriage between the 1st defendant and the mother of defendants 4 and 5 and so, defendants 4 and 5 cannot claim to be the legitimate children of the 1st defendant through any valid marriage. Therefore, they are not entitled to any share in the suit properties. Even if there was any marriage between the 1st defendant and the mother of defendants 4 and 5, it is not valid in law since the marriage between defendants 1 and 3 was subsisting. Even otherwise, defendants 4 and 5 cannot claim any share in the suit properties as per Section 16 of the Hindu Marriage Act. As per Section 16 of the Hindu Marriage Act, defendants 4 and 5 at best can claim a share in the separate properties of the 1st defendant and not in the joint family properties. So, in any view of the matter, defendants 4 and 5 cannot claim any right or share in the suit properties. Therefore, the plaintiff has filed the suit for division of the suit properties into two equal shares and for putting him in possession of the share so allotted to him and for other reliefs.
9. The 1st defendant, the father of the plaintiff, filed a written statement. The allegations which are necessary for the disposal of the present appeal alone are extracted here. It is true, that the plaintiffs mother the 3rd defendant was married to the 1st defendant about 25 years prior to the suit. But, the said marriage was dissolved in O.P. No. 47 of 1960 on the file of the subordinate. Judge, Salem. The plaintiff is the only son of the 1st defendant. The panchayat regarding C.C. No. 34 of 1960 on the file of the Additional First Class Magistrate No. 2, Salem, is true. The execution of the release deed on 31.7.1960 for Rs. 2,500 is true. The release deed is valid and binding on the plaintiff and the plaintiff cannot now attack the validity of the same after his completing the 25th year. It is only the plaintiff’s another who made her father the guardian for the plaintiff and executed the release deed. The plaintiff’s suit without a prayer to set aside the release deed is bad. The plaintiff cannot claim a share after 17 years. The 1st defendant’s possession of the suit properties all these years as his own openly and to the exclusion of others debars the plaintiff from claiming any share.
10. The 4th defendant filed a separate written statement contending that since the plaintiff has executed a release deed, he is not entitled to any share in the suit properties. The plaintiffs mother wanted her father to be the guardian for the plaintiff. So, the plaintiff’s maternal grand father Subbaraya Gounder, as guardian of the plaintiff, has executed the release deed after obtaining a sum of Rs. 2,500. The plaintiffs claim for a half share in the suit properties without seeking to set aside the release deed is null and void. Defendants 1,4 and 5 have been enjoying the suit properties and are in possession of the same openly all these years. Defendants 4 and 5 are the sons of the 1st defendant through his second wife. There was a valid marriage between the 1st defendant and the mother of defendants 4 and 5. Therefore, defendants 4 and 5 are entitled to l/3rd share each along with the 1st defendant. The suit is barred by limitation as the plaintiff has not moved the court to set aside the release deed within three years after attaining majority.
11. On the basis of the above pleadings, the trial court framed five, issues. The plaintiff has examined himself as P.W.1 and marked Exs. A-1 to A-3. On the side of the defendants, the 1st defendant examined himself as D.W.1 and two other witnesses were examined on their side besides marking Exs.B-1 to B-3. The learned Subordinate Judge, on a consideration of the entire evidence, has held that Ex.A-1 having been executed by the 2nd defendant, who was not the plaintiff’s de jure guardian, was void as per Section 11 of the Hindu Minority and Guardianship Act, that there was no need to have it set aside, that despite Ex.A-1, the plaintiff continued to be a member of the joint family and was entitled to a half share since it has not been established that the 1st defendant has married one Valliammal after his marriage with the 3rd defendant was dissolved by a decree of divorce, and that defendants 4 and 5 will not be entitled to any share in the suit property. Consequently, the trial court decreed the suit as prayed for against which the present appeal has been filed by defendants 1 and 4.
12. We have heard the elaborate arguments of Mr. S. Rajasekear for the appellants/ defendants 1 and 4 and Mr. S.P. Subramaniam for the 1st respondent/ plaintiff. Learned Counsel for the appellants reiterated the grounds raised in the memorandum of appeal. He invited our attention to the decisions reported in Kasthuri Lakshmibayamma v. Sabnivis Venkoba Rao , Shanti Parshad v. Kunj Lal A.I.R. 1953 Pepsu 151, Mayilswami Chettiar v. Kaliammal (1969)1 M.L.J. 177, Muppudathi Pillai v. Krishnaswami (1959)1 M.L.J. 225: A.I.R. 1960 Mad. 1 and V. Muthukumara Chetty v. Anthony A.I.R. 1915 Mad 296. Mr. S.P. Subramaniam, learned Counsel for the 1st respondent addressed arguments supporting the judgment of the court below.
13. We have already seen that the plaintiff’s claim is sought to be denied on the ground that he had executed the release deed Ex.A-1 dated 31.7.1960 giving up his share in the joint family properties for a consideration of Rs. 2,500. The plaintiffs case is, that the release deed Ex.A-1 is void ab initio. Ex. A-1 (at page 21 of the typed set) has been executed by the 2nd defendant, the maternal grandfather of the plaintiff, in favour of the 1st defendant’s father and elder brother. The 2nd defendant was neither de jure nor de facto guardian of the plaintiff at the relevant point of time.
14. Section 6 of the Hindu Minority and Guardianship Act provides that the father and after him the mother are the natural guardians. This section runs as follows:
6. Natural guardians of a Hindu minor: The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or unmarried girl – the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother,
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father,
(c) in the case of a married girl – the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section.
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanarprastha) or an ascetic (Yati or Sanyasi).
Explanation: In this section the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.
15. Section 8 of the Hindu Minority and Guardianship Act deals with the powers of the natural guardian. This section runs as follows:
8. Powers of natural guardian: (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation protection or benefit of the minor’s estate, but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of Sub-Section ( 1) or Sub-Section (2), is voidable at the instance of the minor or any person claiming under him.
(4) to (6) x x x x x.
16. Section 11 of the Hindu Minority and Guardianship Act reads as follows:
11. De facto guardian not to deal with minor’s property: After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
This section provides that after the commencement of the said Act, no person shall be entitled to dispose of or deal with the property of the Hindu minor merely on the ground of his or her being the de facto guardian of the minor. However, this section is silent as to whether the alienation by a de facto guardian after the commencement of the Act is void or voidable.
17. In the decision reported in Dhanasekaran v. Manoranjithammal (1992)2 M.L.J. 116. A Division Bench of this Court consisting of K. Venkataswami, J. (as he then was) and Abdul Hadi, J., has held that such alienation by a de facto guardian, under certain circumstances referred to therein, cannot be said to be void. In paragraph 50 of the said judgment, the Bench has held as follows:
But this view of ours by itself cannot settle the other question whether the sale by a de facto guardian of minor’s property in the joint family property is void ab initio or voidable. In this connection, we also find in unreported decision in Subbalakshmi v. Sengolatha Koundar and Ors. C.R.P. No. 831 of 1969 dated 13.2.1973 of the Division Bench of this Court, wherein we find the following observations:
Section 11 of the Hindu Minority and Guardianship Act is relied on for the petitioner to contend that a de facto guardian would not be entitled to dispose of or deal with the property of a Hindu minor. But that is not a complete statement of the law. That section itself proceeds to say that she is not so entitled merely on the ground of her being a de facto guardian of the minor. If the intention of the section is that in no case the transaction of a de facto guardian is to be valid, it could have easily said so. Having regard to the language employed in Section 11, we are of the view that the entitlement of the de facto guardian to deal with or dispose of a property of a Hindu minor will not spring merely from the fact of a person being a de facto guardian. That is to say, there may be circumstances as for instance, that there is no other person left alive to look after the minor, or the interest of the legal guardian is adverse to that of the minor. In such cases, the de facto guardian is not acting as such merely by reason of that fact, but due to the existence of other circumstances which make it necessary for her to set as a de facto guardian. We are of the view, therefore, that Section 11 does not render the sale void,
[underlining is ours]
We are in agreement with the view expressed by the abovesaid Division Bench. Therefore, we do not think that the abovesaid Section 111 does render the sale by a de facto guardian, of his minor’s interest in the joint family, void. But the said section renders the said sale voidable only. Therefore, we also observe with due respect, that the abovesaid decisions of Ratnam, J., in this regard, is not correct.
18. In the instant case, Ex.A-1 has been admittedly executed by the maternal grandfather of the plaintiff and not by the mother and has not been proved to the de facto guardian. Therefore, the above judgment of a Division Bench of this Court in Dhanasekaran v. Manoranjithammal (1992)2 M.L.J. 116, is distinguishable on facts.
19. Strong reliance was placed on the decision reported in Ponnammal v. Gomathi Animal A.I.R. 1936 Mad. 884, by Mr. S.P. Subramaniam, learned Counsel for the plaintiff. In that case, it has been held as follows:
An alienation of a minor’s property by a person who is neither de facto nor dejure guardian of the minor, is void and not voidable; and the minor on attaining majority can ignore such an alienation. It is not necessary for the minor to get the document set aside within three years of his attaining majority.
The principle laid down in Ponnammal v. Gomathi Animal A.I.R. 1936 Mad. 884, has been reiterated in Sri Aurobindo Society, Pondicherry v. Ramadoss Naidu . In that case, the mother had sold the property of the minor son though the father was a live. That was her first act. It was held that the said casual and solitary act by no means raises her to the status of a de facto guardian, properly so called and that the sale was ab initio void. Paragraph 11 of the said judgment can be usefully referred to in this connection. It reads as follows:
I am satisfied that Lakshmi Ammal merely took it into her head to execute the sale as a guardian just this once. This casual and solitary act by no means raises her to the status of a de facto guardian, properly so called. It follows that her sale is ab initio void. Even on the footing that Lakshmi Ammal was acting as a regular de facto guardian during the minority of this son, not only in this transaction, but also in other transactions, for which, as I said, there is no evidence whatever in this case, still there is authority for the position that the alienation by her would be void and not merely voidable at the minor’s option. Vide the decision of Viswanatha Sastri J., in Palaniappa v. Nallappa .
A reference to the decision reported in Ponnammal v. Gomathi Ammal A.I.R. 1936 Mad. 884, has also been made in paragraph 17 of the above judgment. Thus, it is clear, that an alienation of a minor’s property by a person who is neither a de facto nor a dejure guardian of the minor, is void and not voidable and the minor on attaining majority can ignore such an alienation and there is no need for the minor to get it set aside within three years of his attaining majority. The argument of Mr. S.P. Subramaniam, that in view of the above decision. Ex.A-1 herein is void ab initio and such being the case, there is no need to have, it set aside within the prescribed period of limitation merits acceptance.
20. It was argued by Mr. S. Rajasekar, learned Counsel for the appellants, that the mother of the plaintiff had authorised her father to execute the release deed and therefore, Ex.A-1 must be deemed to have been executed by the plaintiff s mother. We have searched in vain whether any such plea of authorisation is found in the reply notice Ex.A-3. The plea there is, that the release deed was executed only on the advice of the plaintiff’s mother. It does not refer to any authorisation as alleged.
21. The plea in paragraph 6 of the written statement of the 1st defendant is, that the plaintiffs mother made her father the guardian for the plaintiff and executed the release deed. The plea in paragraph 5 of the written statement of the 4th defendant is, that the plaintiff’s mother wanted her father to be the guardian of the plaintiff and so the plaintiffs maternal grandfather executed the release deed. No suggestion was made to the plaintiff in cross-examination regarding the above plea. The evidence of D.W. 1 in Chief-examination (which is at page 9 of the typed set) is that the 3rd defendant caused Ex.A-1 to be executed making the 2nd defendant as guardian. D.W.2, the attestor of Ex. A-l, does not say anything regarding this matter. D.W.3 has stated in Chief-examination that the plaintiff’s mother requested her father to execute the release deed as guardian. It is urged by Mr. S.P. Subramaniam, learned Counsel for the plaintiff, that even assuming that the plaintiff smother had agreed to the execution of Ex.A-1, it does not follow that Ex. A-1 has been executed by the plaintiff’s mother. Therefore, it cannot be considered as having been executed by the de facto guardian. Even otherwise according to the principle laid down in Sri Aurobindo Society, Pondicherry v. Ramadoss Naidu . referred to supra, Ex.A-1, in our opinion, is ab initio void.
22. It was argued on behalf of the appellants that under Section 34 of the Specific Relief Act, even a void document has got to be set aside. This contention, in our opinion, is not correct. Section 34 of the Specific Relief Act refers to voidable transactions and valid transactions which become void on account of supervening circumstances. It has no application in respect of transactions which are void ab initio as in this case. A similar argument advanced before a Division Bench of this Court consisting of Sathiadev and Bellie, JJ. in Sakkarathayammal v. Shanmugavel Chettiar (1990)1 L.W. 475, was rejected. We may usefully refer to paragraph 22 of the said judgment, which runs as follows:
He would then rely upon Section 31 of Specific Relief Act and claim that, even in respect of a void transaction, it is obligatory on the part of the party, who wants to avoid the document, to institute proceedings. The section itself states that if anyone who is faced with a void or voidable instrument, apprehends that it may cause him serious injury, he may sue to have it adjudged as void or voidable. Article 91 of the Limitation Act of 1908, prescribed a period of three years for cancellation of a document which is voidable, and it did not apply where the document was ab initio void, because such documents do not require to be set aside in law. Article 59 of the Limitation Act, 1963, prescribes a period of three years from the time when the facts entitling the plaintiff to have the instrument cancelled first become known to him. Therefore, this section cannot be relied upon to claim that, unless a suit is filed to declare a document, as void, the executant cannot avoid it, when it is ab initio void as had happened to Ex.B-1.
23. It is next contended that if Ex.A-1 is void ab initio, the plaintiff continues to be the coparcener. Therefore, Mr. S.P. Subramaniam submitted that the plaintiff could institute a suit for partition at any time he likes. In the instant case, he has instituted the suit after issuing the notice Ex.A-2 dated 6.2.1975 through his counsel to his father, the 1st defendant. Since the suit has been instituted after notice, the suit, in our view, is not barred by limitation. Article 59 of the Limitation Act also does not apply as has been held in Sakkarathayammal v. Shanmugavel Chettiar (1990)1 L.W. 475, referred to supra.
24. Let us now consider whether the plaintiff is entitled to half share as claimed in the plaint. It has been alleged in paragraph 8-B of the plaint that defendants 4 and 5 are not legitimate children and hence are not entitled to any share. It is further alleged that defendants 4 and 5 can claim a share only in the separate properties of their father the 1st defendant and not in the family properties as provided under Section 16(3) of the Hindu Marriage Act. Section 16 of the Hindu Marriage Act reads as under:
16. Legitimacy of children of void and voidable marriages: (1) Notwithstanding that a 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 a 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.
(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.
25. The plaintiffs case is, that the 1st defendant had married one Valliammal mother of defendants 4 and 5, even during the subsistence of his marriage with the plaintiff’s mother. The plaintiff’s mother had instituted CC. No. 34 of 1960 on the file of the Additional First Class Magistrate No. 2, Salem, under Section 494 of the Indian Penal Code for bigamy. In the said proceedings, the 1st defendant denied having married Valliammal. The above allegation has been made in paragraph 2 of the notice Ex.A-2. That has not been denied in the reply notice Ex.A-3. There is also no plea there that the 1st defendant married Valliammal one and a half years after the dissolution of his marriage with the plaintiff’s mother. There is no such plea in his written statement either.
26. In paragraph 9 of the written statement of defendants 4 and 5, it is vaguely alleged that there was a valid marriage between the 1st defendant and their mother. No details are given as to when and where and in which year the alleged marriage took place. There is no plea that the alleged marriage took place one and a half years after the dissolution of the first marriage. No witness was examined as to the alleged marriage excepting the interested testimony of the 1st defendant. Hence, the plea that the second marriage was one and a half years after the dissolution of the first marriage and therefore valid, cannot be accepted.
27. Section 5(i) of the Hindu Marriage Act is to the effect that a marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of the marriage. This section can be usefully referred to. It reads as follows:
5. Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely-
(i) neither party has a spouse living at the time of the marriage:
(ii) at the time of the marriage neither party-
(a) is incapable of giving a valid consent, to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children: or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage:
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two:
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:
28. Section 11 of the Hindu Marriage Act reads as follows:
11. Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes anyone of the conditions specified in Clauses (i), (iv) and (v) of Section 5.
Therefore, we are forced to render a finding that the marriage of the 1st defendant with Valliammal was a void marriage. In our view, no other conclusion is possible on the evidence discussed above.
29. The question arises is, as to what is its effect on the children born viz., defendants 4 and 5. Section 16(1) of the Hindu Marriage Act confers legitimacy on children born of such marriage which is void under Section 11 of that Act. But, Sub-Section (3) of Section 16 of that Act restricts the right of such legitimate children to succeed to the properties of the parents only. They, therefore, cannot claim any share in any other property. It, therefore, follows that defendants 4 and 5 are not entitled to any share in the suit properties.
30. The principle laid down in the decision reported in Sivagnanavadivu Nachiar v. Krishnakanthan, 89 L. W. 706, can be beneficially applied to the case on hand. In that case, a Division Bench of this Court consisting of K. Veerasami Chief Justice and S. Natrajan, J. (as he then was) held that under Section 16. of the Hindu Marriage Act, right is available only in respect of separate properties of the parents. To the same effect is the decision of the Bombay High Court reported in Hanmanta Laxman Thorat v. Dhondavvabai Hanmanta Thorat , wherein a learned single Judge of the Bombay High Court held that the child of a void marriage is not entitled to a share in the property of which the father is a co-parcener.
31. The decision reported in Shantaram Tukaram Patil v. Dagubai Tukaram Patil , is a judgment rendered by a Division Bench of the said High Court, wherein it has been observed as follows:
Under Section 16(1), Hindu Marriage Act, as substituted by Act 68 of 1976 a child of a marriage which is void under the provisions of Hindu Marriage Act, whether a decree of nullity is passed or not, is a legitimate child. Such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him right to property of his parents under Section 16(3), Hindu Marriage Act.
The property to which such a child can lay claim must be the separate property of the parents and not the co-parcenary property in which the parents have a share.
Since no child, whether legitimate or otherwise, acquires right by birth in the separate property of its parents, a child of a void marriage can only succeed to the property of its parent in accordance with the provisions of Section 8 or Section 15 of the Hindu Succession Act. A child of a void marriage is related to its parent within the meaning of Section 3(1)(j), Hindu Succession Act, because of the provisions of Section i 6. Hindu Marriage Act; proviso to Section 3(1)(j) must be confined to those children who are not clothed with legitimacy under Section 16, Hindu Marriage Act.
32. We may also refer to the contrary view taken by a learned single Judge of our High Court (T.N. Singaravelu, J) in the decision reported in Margabandhu v. Kothandarama Mandhiri (1983) 2 M.L.J. 445, wherein the learned Judge has observed that since the properties in that case were ancestral, the father and the four sons take equal shares by virtue of the amendment and that there is no warrant for the argument on the side of the appellants therein that the illegitimate children will be entitled only to a share in the self-acquired properties of the father. With respect, we are unable to share the view of the learned single Judge since it is opposed to the Division Bench judgment of this Court in Sivagnanavadivu Nachiar v. Krishnakanthan, 89 L. W. 706, referred to supra. Moreover, the learned Judge in that case has overlooked Section 16(3) of the Hindu Marriage Act, which .was proviso to Section 16 before the amendment effected in 1976.
33. Since the judgments cited by the learned Counsel for the appellants are not directly on the point in issue, we do not feel it necessary to refer to those decisions.
34. On a careful consideration of the entire materials placed before us, both oral and documentary and of the persuasive arguments of Mr. S.P. Subramaniam, and following the principles laid down in the judgments cited supra, we are of the view that the plaintiff/1st respondent is entitled to a half share in the suit properties and that defendants 4 and 5 are not entitled to any share since the suit properties are joint family properties. The appeal, therefore, fails and is dismissed. However, there will be no order as to costs.