{"id":115226,"date":"2011-03-31T00:00:00","date_gmt":"2011-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/revanasiddappa-anr-vs-mallikarjun-ors-on-31-march-2011"},"modified":"2015-06-15T18:51:22","modified_gmt":"2015-06-15T13:21:22","slug":"revanasiddappa-anr-vs-mallikarjun-ors-on-31-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/revanasiddappa-anr-vs-mallikarjun-ors-on-31-march-2011","title":{"rendered":"Revanasiddappa & Anr vs Mallikarjun & Ors on 31 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Revanasiddappa & Anr vs Mallikarjun & Ors on 31 March, 2011<\/div>\n
Author: Ganguly<\/div>\n
Bench: G.S. Singhvi, Asok Kumar Ganguly<\/div>\n
                                                             REPORTABLE\n\n\n\n             IN THE SUPREME COURT OF INDIA\n\n               CIVIL APPELLATE JURISDICTION\n\n\n\n\n\n           CIVIL APPEAL NO.           OF 2011\n\n(Arising out of Special Leave Petition (C) No.12639\/09)\n\n\n\n\n\nRevanasiddappa & another                    ...Appellant(s)\n\n\n\n\n\n                          - Versus -\n\n\n\n\n\nMallikarjun & others                       ...Respondent(s)\n\n\n\n\n\n                        J U D G M E N T\n<\/pre>\n
GANGULY, J.\n<\/p>\n
1.    Leave granted.\n<\/p>\n
2.    The   first   defendant   had   two   wives-   the   third <\/p>\n
plaintiff (the first wife) and the fourth defendant <\/p>\n
(the   second   wife).   The   first   defendant   had   two <\/p>\n
children   from   the   first   wife,   the   third   plaintiff, <\/p>\n
namely,   the   first   and   second   plaintiffs;   and <\/p>\n
                               1<\/span><\/p>\n
another   two   children   from   his   second   wife,   the <\/p>\n
fourth   defendant   namely,   the   second   and   third <\/p>\n
defendant.\n<\/p>\n
3.    The   plaintiffs   (first   wife   and   her   two <\/p>\n
children)   had   filed   a   suit   for   partition   and <\/p>\n
separate   possession   against   the   defendants   for <\/p>\n
their   1\/4th  share   each   with   respect   to   ancestral <\/p>\n
property   which   had   been   given   to   the   first <\/p>\n
defendant by way of grant. The plaintiffs contended <\/p>\n
that   the   first   defendant   had   married   the   fourth <\/p>\n
defendant   while   his   first   marriage   was   subsisting <\/p>\n
and,   therefore,   the   children   born   in   the   said <\/p>\n
second   marriage   would   not   be   entitled   to   any   share <\/p>\n
in the ancestral property of the first defendant as <\/p>\n
they were not coparceners.\n<\/p>\n
4.    However,   the   defendants   contended   that   the <\/p>\n
properties were not ancestral properties at all but <\/p>\n
were   self-acquired   properties,   except   for   one <\/p>\n
property   which   was   ancestral.   Further,   the   first <\/p>\n
                               2<\/span><\/p>\n
defendant   also   contended   that   it   was   the   fourth <\/p>\n
defendant   who   was   his   legally   wedded   wife,   and   not <\/p>\n
the   third   plaintiff   and   that   the   plaintiffs   had   no <\/p>\n
right   to   claim   partition.   Further,   the   first <\/p>\n
defendant   also   alleged   that   an   oral   partition   had <\/p>\n
already taken place earlier.\n<\/p>\n
5.    The   Trial   Court,   by   its   judgment   and   order <\/p>\n
dated   28.7.2005,   held   that   the   first   defendant   had <\/p>\n
not   been   able   to   prove   oral   partition   nor   that   he <\/p>\n
had   divorced   the   third   plaintiff.   The   second <\/p>\n
marriage   of   the   first   defendant   with   the   fourth <\/p>\n
defendant   was   found   to   be   void,   as   it   had   been <\/p>\n
conducted   while   his   first   marriage   was   still <\/p>\n
legally subsisting. Thus, the Trial Court held that <\/p>\n
the   third   plaintiff   was   the   legally   wedded   wife   of <\/p>\n
the   first   defendant   and   thus   was   entitled   to   claim <\/p>\n
partition.   Further,   the   properties   were   not   self-\n<\/p>\n
acquired   but   ancestral   properties   and,   therefore, <\/p>\n
the   plaintiffs   were   entitled   to   claim   partition   of <\/p>\n
the   suit   properties.   The   plaintiffs   and   the   first <\/p>\n
                                3<\/span><\/p>\n
defendant   were   held   entitled   to   1\/4th  share   each   in <\/p>\n
all the suit properties.\n<\/p>\n
6.    Aggrieved,   the   defendants   filed   an   appeal <\/p>\n
against   the   judgment   of   the   Trial   Court.   The   First <\/p>\n
Appellate   Court,   vide   order   dated   23.11.2005,   re-\n<\/p>\n
appreciated   the   entire   evidence   on   record   and <\/p>\n
affirmed   the   findings   of   the   Trial   Court   that   the <\/p>\n
suit   properties   were   ancestral   properties   and   that <\/p>\n
the   third   plaintiff   was   the   legally   wedded   wife   of <\/p>\n
the first defendant, whose marriage with the fourth <\/p>\n
defendant   was   void   and   thus   children   from   such <\/p>\n
marriage   were   illegitimate.   However,   the   Appellate <\/p>\n
Court reversed the findings of the Trial Court that <\/p>\n
illegitimate   children   had   no   right   to   a   share   in <\/p>\n
the   coparcenary   property   by   relying   on   a   judgment <\/p>\n
of   the   Division   Bench   of   the   Karnataka   High   Court <\/p>\n
in  Smt.   Sarojamma   &   Ors.  v.  Smt.   Neelamma   &   Ors., <\/p>\n
[ILR 2005 Kar 3293].\n<\/p>\n
                               4<\/span><\/p>\n
7.    The   Appellate   Court   held   that   children   born <\/p>\n
from a void marriage were to be treated at par with <\/p>\n
coparceners and they were also entitled to the joint <\/p>\n
family         properties                   of         the         first         defendant.\n<\/p>\n
Accordingly,   the   Appellate   Court   held   that   the <\/p>\n
plaintiffs,   along   with   the   first,   second   and   third <\/p>\n
defendants   were   entitled   to   equal   share   of   1\/6th <\/p>\n
each in the ancestral properties.\n<\/p>\n
8.    The   plaintiffs,   being   aggrieved   by   the   said <\/p>\n
judgment of the Appellate Court, preferred a second <\/p>\n
appeal   before   the   High   Court   of   Karnataka.   The <\/p>\n
substantial   questions   of   law   before   the   High   Court <\/p>\n
were:\n<\/p>\n
      “a)  Whether   the   illegitimate   children   born   out <\/p>\n
               of         void         marriage               are         regarded         as <\/p>\n
               coparceners   by   virtue   of   the   amendment   to <\/p>\n
               the Hindu Marriage Act, 1956?<\/p>\n
                                                  5<\/span><\/p>\n<\/blockquote>\n
       b)    At   a   partition   between   the   coparceners <\/p>\n
             whether they are entitled to a share in the <\/p>\n
             said properties?”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
9.    The   High   Court   stated   that   the   said   questions <\/p>\n
were no more  res integra  and had been considered in <\/p>\n
the   judgment   of  Sri   Kenchegowda  v.  K.B.   Krishnappa  <\/p>\n
&   Ors.,   [ILR   2008   Kar   3453].   It   observed   that   both <\/p>\n
the   lower   courts   had   concurrently   concluded   that <\/p>\n
the   fourth   defendant   was   the   second   wife   of   the <\/p>\n
first   defendant.   Therefore,   the   second   and   third <\/p>\n
defendants   were   illegitimate   children   from   a   void <\/p>\n
marriage.   Section   16(3)   of   the   Hindu   Marriage   Act <\/p>\n
makes   it   clear   that   illegitimate   children   only   had <\/p>\n
the   right   to   the   property   of   their   parents   and   no <\/p>\n
one   else.   As   the   first   and   second   plaintiffs   were <\/p>\n
the legitimate children of the first defendant they <\/p>\n
constituted   a   coparcenary   and   were   entitled   to   the <\/p>\n
suit  properties,  which  were  coparcenary  properties.\n<\/p>\n
They   also   had   a   right   to   claim   partition   against <\/p>\n
the other     coparcener and thus     their     suit for <\/p>\n
                                6<\/span><\/p>\n
partition          against         the         first         defendant             was <\/p>\n
maintainable.            However,         the         second      and         third <\/p>\n
defendants   were   not   entitled   to   a   share   of   the <\/p>\n
coparcenary   property   by   birth   but   were   only <\/p>\n
entitled   to   the   separate   property   of   their   father, <\/p>\n
the   first   defendant.   The   High   Court   observed   that <\/p>\n
upon   partition,   when   the   first   defendant   got   his <\/p>\n
share   on   partition,   then   the   second   and   third <\/p>\n
defendants   would   be   entitled   to   such   share   on   his <\/p>\n
dying intestate, but during his lifetime they would <\/p>\n
have no right to the said property. Hence, the High <\/p>\n
Court   allowed   the   appeal   and   held   that   the   first <\/p>\n
plaintiff, second plaintiff and the first defendant <\/p>\n
would   be   entitled   to   1\/3rd  share   each   in   the   suit <\/p>\n
properties.   The   claim   of   the   third   plaintiff   and <\/p>\n
the second, third and fourth defendants in the suit <\/p>\n
property was rejected.\n<\/p>\n
10.    As   a   result,   the   second   and   third   defendants <\/p>\n
(present appellants) filed the present appeal.\n<\/p>\n
                                     7<\/span><\/p>\n
11.    The   question   which   crops   up   in   the   facts   of <\/p>\n
this   case   is   whether   illegitimate   children   are <\/p>\n
entitled   to   a   share   in   the   coparcenary   property   or <\/p>\n
whether   their   share   is   limited   only   to   the   self-\n<\/p>\n
acquired   property   of   their   parents   under   Section <\/p>\n
16(3) of the Hindu Marriage Act?\n<\/p>\n
12.    Section   16(3)   of   the   Hindu   Marriage   Act,   1955 <\/p>\n
reads as follows:\n<\/p>\n
       “16.   Legitimacy   of   children   of   void   and <\/p>\n
       voidable marriages-\n<\/p><\/blockquote>\n
       (1)    xxx\n\n       (2)    xxx\n\n<\/pre>\n
       (3)   Nothing   contained   in   sub-section   (1) <\/p>\n
       or   sub-section   (2)   shall   be   construed   as <\/p>\n
       conferring   upon   any   child   of   a   marriage <\/p>\n
       which   is   null   and   void   or   which   is <\/p>\n
       annulled   by   a   decree   of   nullity   under <\/p>\n
       section   12,   any   rights   in   or   to   the <\/p>\n
       property   of   any   person,   other   than   the <\/p>\n
       parents,   in   any   case   where,   but   for   the <\/p>\n
       passing of this Act, such child would have <\/p>\n
       been   incapable   of   possessing   or   acquiring <\/p>\n
       any such rights by reason of his not being <\/p>\n
       the legitimate child of his parents.<\/p>\n<\/blockquote>\n
13.    Thus,   the   abovementioned   section   makes   it   very <\/p>\n
clear   that   a   child   of   a   void   or   voidable   marriage <\/p>\n
                                8<\/span><\/p>\n
can   only   claim   rights   to   the   property   of   his <\/p>\n
parents,   and   no   one   else.   However,   we   find   it <\/p>\n
interesting   to   note   that   the   legislature   has <\/p>\n
advisedly   used   the   word   “property”   and   has   not <\/p>\n
qualified   it   with   either   self-acquired   property   or <\/p>\n
ancestral   property.     It   has   been   kept   broad   and <\/p>\n
general.\n<\/p>\n
14.    Prior to enactment of Section 16(3) of the Act, <\/p>\n
the   question   whether   child   of   a   void   or   voidable <\/p>\n
marriage   is   entitled   to   self-acquired   property   or <\/p>\n
ancestral   property   of   his   parents   was   discussed   in <\/p>\n
a   catena   of   cases.   The   property   rights   of <\/p>\n
illegitimate   children   to   their   father’s   property <\/p>\n
were   recognized   in   the   cases   of   Sudras   to   some <\/p>\n
extent.\n<\/p>\n
15.    In  Kamulammal (deceased) represented by Kattari  <\/p>\n
Nagaya   Kamarajendra   Ramasami   Pandiya   Naicker         v.\n<\/p>\n
T.B.K.   Visvanathaswami   Naicker   (deceased)   &   Ors., <\/p>\n
[AIR 1923 PC 8], the Privy Council held when a Sudra <\/p>\n
                              9<\/span><\/p>\n
had   died   leaving   behind   an   illegitimate   son,   a <\/p>\n
daughter,   his   wife   and   certain   collateral   agnates, <\/p>\n
both   the   illegitimate   son   and   his   wife   would   be <\/p>\n
entitled   to   an   equal   share   in   his   property.     The <\/p>\n
illegitimate   son   would   be   entitled   to   one-half   of <\/p>\n
what   he   would   be   entitled   had   he   been   a   legitimate <\/p>\n
issue. An illegitimate child of a Sudra born from a <\/p>\n
slave or a permanently kept concubine is entitled to <\/p>\n
share   in   his   father’s   property,   along   with   the <\/p>\n
legitimate children.\n<\/p>\n
16.    In     P.M.A.M.   Vellaiyappa   Chetty   &   Ors.         v.\n<\/p>\n
Natarajan   &   Anr.,   [AIR   1931   PC   294],   it   was   held <\/p>\n
that   the   illegitimate   son   of   a   Sudra   from   a <\/p>\n
permanent   concubine   has   the   status   of   a   son   and   a <\/p>\n
member of the family and share of inheritance given <\/p>\n
to him is not merely in lieu of maintenance, but as <\/p>\n
a   recognition   of   his   status   as   a   son;   that   where <\/p>\n
the   father   had   left   no   separate   property   and   no <\/p>\n
legitimate son, but was joint with his collaterals, <\/p>\n
the   illegitimate   son   was   not   entitled   to   demand   a <\/p>\n
                                10<\/span><\/p>\n
partition   of   the   joint   family   property,   but   was <\/p>\n
entitled   to   maintenance   out   of   that   property.   Sir <\/p>\n
Dinshaw   Mulla,   speaking   for   the   Bench,   observed <\/p>\n
that   though   such   illegitimate   son   was   a   member   of <\/p>\n
the family, yet he had limited rights compared to a <\/p>\n
son   born   in   a   wedlock,   and   he   had   no   right   by <\/p>\n
birth.   During   the   lifetime   of   the   father,   he   could <\/p>\n
take   only   such   share   as   his   father   may   give   him, <\/p>\n
but   after   his   death   he   could   claim   his   father’s <\/p>\n
self-acquired   property   along   with   the   legitimate <\/p>\n
sons.\n<\/p>\n
17.    In     Raja         Jogendra          Bhupati         Hurri         Chundun  <\/p>\n
Mahapatra  v.  Nityanund   Mansingh   &   Anr.,  [1889-90 <\/p>\n
Indian   Appeals   128],   the   facts   were   that   the   Raja <\/p>\n
was   a   Sudra   and   died   leaving   behind   a   legitimate <\/p>\n
son,   an   illegitimate   son   and   a   legitimate   daughter <\/p>\n
and   three   widows.   The   legitimate   son   had   died   and <\/p>\n
the   issue   was   whether   the   illegitimate   son   could <\/p>\n
succeed   to   the   property   of   the   Raja.   The   Privy <\/p>\n
                                       11<\/span><\/p>\n
Council held that the illegitimate son was entitled <\/p>\n
to succeed to the Raja by virtue of survivorship.\n<\/p>\n
18.    In  Gur   Narain   Das   &   Anr.  v.  Gur   Tahal   Das   &  <\/p>\n
Ors.,<\/a>  [AIR 1952 SC 225], a Bench comprising Justice <\/p>\n
Fazl Ali and Justice Bose agreed with the principle <\/p>\n
laid down in the case of Vellaiyappa Chetty (supra) <\/p>\n
and   supplemented   the   same   by   stating   certain   well-\n<\/p>\n
settled   principles   to   the   effect   that   “firstly, <\/p>\n
that the illegitimate son does not acquire by birth <\/p>\n
any   interest   in   his   father’s   estate   and   he   cannot <\/p>\n
therefore   demand   partition   against   his   father <\/p>\n
during   the   latter’s   lifetime.     But   on   his   father’s <\/p>\n
death,         the     illegitimate         son         succeeds         as         a <\/p>\n
coparcener   to   the   separate   estate   of   the   father <\/p>\n
along   with   the   legitimate   son(s)   with   a   right   of <\/p>\n
survivorship   and   is   entitled   to   enforce   partition <\/p>\n
against   the   legitimate   son(s)   and   that   on   a <\/p>\n
partition   between   a   legitimate   and   an   illegitimate <\/p>\n
son,   the   illegitimate   son   takes   only   one-half   of <\/p>\n
what   he   would   have   taken   if   he   was   a   legitimate <\/p>\n
                                 12<\/span><\/p>\n
son.”   However,   the   Bench   was   referring   to   those <\/p>\n
cases   where   the   illegitimate   son   was   of   a   Sudra <\/p>\n
from a continuous concubine.\n<\/p>\n
19.    In   the   case   of  Singhai   Ajit   Kumar   &   Anr.  v.\n<\/p>\n
Ujayar   Singh   &   Ors.,  [AIR   1961   SC   1334],  the   main <\/p>\n
question was whether an illegitimate son of a Sudra <\/p>\n
vis-`-vis   his   self-acquired   property,   after   having <\/p>\n
succeeded   to   half-share   of   his   putative   father’s <\/p>\n
estate,   would   be   entitled   to   succeed   to   the   other <\/p>\n
half   share   got   by   the   widow.   The   Bench   referred   to <\/p>\n
Chapter   1,   Section   12   of   the   Yajnavalkya   and   the <\/p>\n
cases   of      Raja   Jogendra   Bhupati          (supra)   and <\/p>\n
Vellaiyappa Chetty  (supra) and concluded that “once <\/p>\n
it   is   established   that   for   the   purpose   of <\/p>\n
succession   an   illegitimate   son   of   a   Sudra   has   the <\/p>\n
status  of a  son and  that he  is entitled  to succeed <\/p>\n
to   his   putative   father’s   entire   self-acquired <\/p>\n
property   in   the   absence   of   a   son,   widow,   daughter <\/p>\n
or   daughter’s   son   and   to   share   along   with   them,   we <\/p>\n
cannot   see   any   escape   from   the   consequential   and <\/p>\n
                                13<\/span><\/p>\n
logical   position   that   he   shall   be   entitled   to <\/p>\n
succeed   to   the   other   half   share   when   succession <\/p>\n
opens after the widow’s death.”\n<\/p>\n
20.    The amendment to Section 16 has been introduced <\/p>\n
and   was   brought   about   with   the   obvious   purpose   of <\/p>\n
removing the stigma of illegitimacy on children born <\/p>\n
in   void   or   voidable   marriage   (hereinafter,   “such <\/p>\n
children”).\n<\/p>\n
21.    However,   the   issues   relating   to   the   extent   of <\/p>\n
property   rights   conferred   on   such   children   under <\/p>\n
Section   16(3)   of   the   amended   Act   were   discussed   in <\/p>\n
detail   in  the   case  of  Jinia  Keotin   &  Ors.  v.  Kumar  <\/p>\n
Sitaram   Manjhi   &   Ors.<\/a>  [(2003)   1   SCC   730].  It   was <\/p>\n
contended   that   by   virtue   of   Section   16(3)   of   the <\/p>\n
Act,   which   entitled   such   children’s   rights   to   the <\/p>\n
property   of   their   parents,   such   property   rights <\/p>\n
included   right   to   both   self-acquired   as   well   as <\/p>\n
ancestral   property   of   the   parent.   This   Court, <\/p>\n
repelling   such   contentions   held   that   “in   the   light <\/p>\n
                                14<\/span><\/p>\n
of   such   an   express   mandate   of   the   legislature <\/p>\n
itself,   there   is   no   room   for   according   upon   such <\/p>\n
children   who   but   for   Section   16   would   have   been <\/p>\n
branded   as   illegitimate   any   further   rights   than <\/p>\n
envisaged therein by resorting to any presumptive or <\/p>\n
inferential process of reasoning, having recourse to <\/p>\n
the mere object or purpose of enacting Section 16 of <\/p>\n
the Act. Any attempt to do so would amount to doing <\/p>\n
not   only   violence   to   the   provision   specifically <\/p>\n
engrafted   in   sub-section   (3)   of   Section   16   of   the <\/p>\n
Act but also would attempt to court relegislating on <\/p>\n
the   subject   under   the   guise   of   interpretation, <\/p>\n
against   even   the   will   expressed   in   the   enactment <\/p>\n
itself.”   Thus,   the   submissions   of   the   appellants <\/p>\n
were rejected.\n<\/p>\n
22.    In   our   humble   opinion   this   Court   in          Jinia  <\/p>\n
Keotin  (supra)   took   a   narrow   view   of   Section   16(3) <\/p>\n
of   the   Act.     The   same   issue   was   again   raised   in <\/p>\n
Neelamma   &   Ors.  v.  Sarojamma
\n                                        &   Ors.\n<\/p>\n
                                                      [(2006)   9   SCC <\/p>\n
612], wherein the court referred to the decision in <\/p>\n
                                15<\/span><\/p>\n
Jinia   Keotin  (supra)   and   held   that   illegitimate <\/p>\n
children   would   only   be   entitled   to   a   share   of   the <\/p>\n
self-acquired property of the parents and not to the <\/p>\n
joint Hindu family property.\n<\/p>\n
23.    Same   position   was   again   reiterated   in   a   recent <\/p>\n
decision   of   this   court   in  Bharatha   Matha   &   Anr.  v.\n<\/p>\n
R.   Vijaya   Renganathan   &   Ors.  [AIR   2010   SC   2685], <\/p>\n
wherein this Court held that a child born in a void <\/p>\n
or   voidable   marriage   was   not   entitled   to   claim <\/p>\n
inheritance   in   ancestral   coparcenary   property   but <\/p>\n
was   entitled   to   claim   only   share   in   self-acquired <\/p>\n
properties.\n<\/p>\n
24.    We   cannot   accept   the   aforesaid   interpretation <\/p>\n
of   Section   16(3)   given   in  Jinia   Keotin  (supra), <\/p>\n
Neelamma  (supra) and  Bharatha Matha  (supra) for the <\/p>\n
reasons discussed hereunder:\n<\/p>\n
25.    The legislature has used the word “property” in <\/p>\n
Section 16(3) and is silent on whether such property <\/p>\n
                                 16<\/span><\/p>\n
is   meant   to   be   ancestral   or   self-acquired.   Section <\/p>\n
16   contains   an   express   mandate   that   such   children <\/p>\n
are only entitled to the property of their parents, <\/p>\n
and not of any other relation.\n<\/p>\n
26.    On   a   careful   reading   of   Section   16   (3)   of   the <\/p>\n
Act   we   are   of   the   view   that   the   amended   Section <\/p>\n
postulates that such children would not be entitled <\/p>\n
to   any   rights   in   the   property   of   any   person   who   is <\/p>\n
not   his   parent   if   he   was   not   entitled   to   them,   by <\/p>\n
virtue   of   his   illegitimacy,   before   the   passing   of <\/p>\n
the   amendment.   However,   the   said   prohibition   does <\/p>\n
not   apply   to   the   property   of   his   parents.   Clauses <\/p>\n
(1)   and   (2)   of   Section   16   expressly   declare   that <\/p>\n
such children shall be legitimate. If they have been <\/p>\n
declared          legitimate,              then         they             cannot         be <\/p>\n
discriminated   against   and   they   will   be   at   par   with <\/p>\n
other   legitimate   children,   and   be   entitled   to   all <\/p>\n
the   rights   in   the   property   of   their   parents,   both <\/p>\n
self-acquired            and         ancestral.              The         prohibition <\/p>\n
contained   in   Section   16(3)   will   apply   to   such <\/p>\n
                                           17<\/span><\/p>\n
children   with   respect   to   property   of  any   person  <\/p>\n
other than their parents.\n<\/p>\n
27.    With   changing   social   norms   of   legitimacy   in <\/p>\n
every society, including ours, what was illegitimate <\/p>\n
in the past may be legitimate today. The concept of <\/p>\n
legitimacy   stems   from   social   consensus,   in   the <\/p>\n
shaping of which various social groups play a vital <\/p>\n
role. Very often a dominant group loses its primacy <\/p>\n
over   other   groups   in   view   of   ever   changing   socio-\n<\/p>\n
economic scenario and the consequential vicissitudes <\/p>\n
in   human   relationship.   Law   takes   its   own   time   to <\/p>\n
articulate such social changes through a process of <\/p>\n
amendment.   That   is   why   in   a   changing   society   law <\/p>\n
cannot afford to remain static. If one looks at the <\/p>\n
history of development of Hindu Law it will be clear <\/p>\n
that   it   was   never   static   and   has   changed   from   time <\/p>\n
to   time   to   meet   the   challenges   of   the   changing <\/p>\n
social pattern in different time.\n<\/p>\n
                                18<\/span><\/p>\n
28.    The   amendment   to   Section   16   of   the   Hindu <\/p>\n
Marriage   Act   was   introduced   by   Act   60   of   76.   This <\/p>\n
amendment     virtually     substituted     the     previous <\/p>\n
Section   16   of   the   Act   with   the   present   Section.\n<\/p>\n
From   the   relevant   notes   appended   in   the   clause <\/p>\n
relating to this amendment, it appears that the same <\/p>\n
was         done         to         remove            difficulties              in         the <\/p>\n
interpretation of Section 16.\n<\/p>\n
29.    The constitutional validity of Section 16(3) of <\/p>\n
Hindu Marriage Act was challenged before this Court <\/p>\n
and         upholding               the         law,          this         Court           in <\/p>\n
Parayankandiyal   Eravath   Kanapravan   Kalliani   Amma <\/p>\n
(Smt.)   &   Ors.  v.  K.   Devi   and   Ors.,<\/a>   [(1996)   4   SCC <\/p>\n
76],   held   that   Hindu   Marriage   Act,   a   beneficial <\/p>\n
legislation, has to be interpreted in a manner which <\/p>\n
advances   the   object   of   the   legislation.   This   Court <\/p>\n
also   recognized   that   the   said   Act   intends   to   bring <\/p>\n
about   social   reforms   and   further   held   that <\/p>\n
conferment   of   social   status   of   legitimacy   on <\/p>\n
                                                19<\/span><\/p>\n
innocent children is the obvious purpose of Section <\/p>\n
16 (See para 68).\n<\/p>\n
30.    In   paragraph   75,   page   101   of   the   report,   the <\/p>\n
learned   judges   held   that   Section   16   was   previously <\/p>\n
linked   with   Sections   11   and   12   in   view   of   the <\/p>\n
unamended   language   of   Section   16.   But   after <\/p>\n
amendment,   Section   16(1)   stands   de-linked   from <\/p>\n
Section   11   and   Section   16(1)   which   confers <\/p>\n
legitimacy   on   children   born   from   void   marriages <\/p>\n
operates with full vigour even though provisions of <\/p>\n
Section 11 nullify those marriages. Such legitimacy <\/p>\n
has   been   conferred   on   the   children   whether   they <\/p>\n
were\/are born in void or voidable marriage before or <\/p>\n
after the date of amendment.\n<\/p>\n
31.    In   paragraph   82   at   page   103   of   the   report,   the <\/p>\n
learned Judges made the following observations:\n<\/p>\n
       “In view of the legal fiction contained in <\/p>\n
       Section  16,  the  illegitimate children,  for <\/p>\n
       all         practical         purposes,         including <\/p>\n
       succession   to   the   properties   of   their <\/p>\n
       parents, have to be treated as legitimate. <\/p>\n
       They   cannot,   however,   succeed   to   the <\/p>\n
                                     20<\/span><\/p>\n
       properties   of   any   other   relation   on   the <\/p>\n
       basis         of         this         rule,         which         in         its <\/p>\n
       operation, is limited to the  properties of <\/p>\n
       the parents.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
32.    It   has   been   held   in  Parayankandiyal  (supra) <\/p>\n
that Hindu Marriage Act is a beneficent legislation <\/p>\n
and   intends   to   bring   about   social   reforms.\n<\/p>\n
Therefore,   the   interpretation   given   to   Section <\/p>\n
16(3)   by   this   Court   in                       Jinia   Keotin                 (supra), <\/p>\n
Neelamma  (supra)   and  Bharatha   Matha  (supra)   needs <\/p>\n
to be reconsidered.\n<\/p>\n
33.    With the amendment of Section 16(3), the common <\/p>\n
law   view   that   the   offsprings   of   marriage   which   is <\/p>\n
void   and   voidable   are   illegitimate  `ipso-jure’  has <\/p>\n
to   change   completely.   We   must   recognize   the   status <\/p>\n
of   such   children   which   has   been   legislatively <\/p>\n
declared             legitimate               and          simultaneously                   law <\/p>\n
recognises   the   rights   of   such   children   in   the <\/p>\n
property   of   their   parents.     This   is   a   law   to <\/p>\n
advance the socially beneficial purpose of removing <\/p>\n
                                              21<\/span><\/p>\n
the stigma of illegitimacy on such children who are <\/p>\n
as innocent as any other children.\n<\/p>\n
34.    However,   one   thing   must   be   made   clear   that <\/p>\n
benefit   given   under   the   amended   Section   16   is <\/p>\n
available   only   in   cases   where   there   is   a   marriage <\/p>\n
but   such   marriage   is   void   or   voidable   in   view   of <\/p>\n
the provisions of the Act.\n<\/p>\n
35.    In   our   view,   in   the   case   of   joint   family <\/p>\n
property   such   children   will   be   entitled   only   to   a <\/p>\n
share   in   their   parents’   property   but   they   cannot <\/p>\n
claim   it   on   their   own   right.   Logically,   on   the <\/p>\n
partition   of   an   ancestral   property,   the   property <\/p>\n
falling   in   the   share   of   the   parents   of   such <\/p>\n
children   is   regarded   as   their   self   acquired   and <\/p>\n
absolute property. In view of the amendment, we see <\/p>\n
no   reason   why   such   children   will   have   no   share   in <\/p>\n
such property since such children are equated under <\/p>\n
the   amended   law   with   legitimate   offspring   of   valid <\/p>\n
marriage.   The   only   limitation   even   after   the <\/p>\n
                                22<\/span><\/p>\n
amendment   seems   to   be   that   during   the   life   time   of <\/p>\n
their   parents   such   children   cannot   ask   for <\/p>\n
partition   but   they   can   exercise   this   right   only <\/p>\n
after the death of their parents.\n<\/p>\n
36.    We         are         constrained                to      differ         from      the <\/p>\n
interpretation   of   Section   16(3)   rendered   by   this <\/p>\n
Court   in  Jinia   Keotin  (supra)   and,   thereafter,   in <\/p>\n
Neelamma  (supra) and  Bharatha Matha  (supra) in view <\/p>\n
of   the   constitutional   values   enshrined   in   the <\/p>\n
preamble   of   our   Constitution   which   focuses   on   the <\/p>\n
concept   of   equality   of   status   and   opportunity   and <\/p>\n
also   on   individual   dignity.   The   Court   has   to <\/p>\n
remember   that   relationship   between   the   parents   may <\/p>\n
not   be   sanctioned   by   law   but   the   birth   of   a   child <\/p>\n
in such relationship has to be viewed independently <\/p>\n
of the relationship of the parents. A child born in <\/p>\n
such   relationship   is   innocent   and   is   entitled   to <\/p>\n
all   the   rights   which   are   given   to   other   children <\/p>\n
born   in   valid   marriage.   This   is   the   crux   of   the <\/p>\n
amendment               in         Section          16(3).             However,         some <\/p>\n
                                              23<\/span><\/p>\n
limitation   on   the   property   rights   of   such   children <\/p>\n
is still there in the sense their right is confined <\/p>\n
to   the   property   of   their   parents.   Such   rights <\/p>\n
cannot   be   further   restricted   in   view   of   the   pe-\n<\/p>\n
existing common law view discussed above.\n<\/p>\n
It is well known that this Court cannot interpret a <\/p>\n
socially   beneficial   legislation   on   the   basis   as   if <\/p>\n
the   words   therein   are   cast   in   stone.                            Such <\/p>\n
legislation          must         be          given         a          purposive <\/p>\n
interpretation   to   further   and   not   to   frustrate   the <\/p>\n
eminently   desirable   social   purpose   of   removing   the <\/p>\n
stigma   on   such   children.   In   doing   so,   the   Court <\/p>\n
must   have   regard   to   the   equity   of   the   Statute   and <\/p>\n
the   principles   voiced   under   Part   IV   of   the <\/p>\n
Constitution,   namely,   the   Directive   Principles   of <\/p>\n
State   Policy.     In   our   view   this   flows   from   the <\/p>\n
mandate of Article 37 which provides that it is the <\/p>\n
duty of the State to apply the principles enshrined <\/p>\n
in Chapter IV in making laws.     It is no longer in <\/p>\n
dispute     that     today     State   would   include   the <\/p>\n
higher   judiciary   in   this   country.                          Considering <\/p>\n
                                        24<\/span><\/p>\n
Article 37 in the context of the duty of judiciary, <\/p>\n
Justice              Mathew         in           Kesavananda         Bharati <\/p>\n
Sripadagalvaru           v.     State   of   Kerala   and<\/a>   another <\/p>\n
[(1973) 4 SCC 225] held:\n<\/p>\n
       “……I   can   see   no   incongruity   in   holding, <\/p>\n
       when   Article   37   says   in   its   latter   part <\/p>\n
       “it   shall   be   the   duty   of   the   State   to <\/p>\n
       apply   these   principles   in   making   laws”, <\/p>\n
       that   judicial   process   is   `State   action’ <\/p>\n
       and that the judiciary is bound to apply <\/p>\n
       the   Directive   Principles   in   making   its <\/p>\n
       judgment.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
38.    Going   by   this   principle,   we   are   of   the   opinion <\/p>\n
that   Article   39   (f)   must   be   kept   in   mind   by   the <\/p>\n
Court   while   interpreting   the   provision   of   Section <\/p>\n
16(3)   of   Hindu   Marriage   Act.     Article   39(f)   of   the <\/p>\n
Constitution runs as follows:\n<\/p>\n
       “39. Certain   principles   of   policy   to   be <\/p>\n
       followed by the State: The State shall, in <\/p>\n
       particular,   direct   its   policy   towards <\/p>\n
       securing-\n<\/p><\/blockquote>\n
       (a)    xxx\n\n       (b)    xxx\n\n       (c)    xxx\n\n       (d)    xxx\n\n       (e)    xxx\n\n       (f)    that   children   are   given   opportunities \n\n<\/pre>\n
              and facilities to develop in a healthy <\/p>\n
                                          25<\/span><\/p>\n
            manner   and   in   conditions   of   freedom <\/p>\n
            and   dignity   and         that   childhood   and <\/p>\n
            youth         are          protected         against <\/p>\n
            exploitation   and   against   moral   and <\/p>\n
            material abandonment.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
39.    Apart   from   Article   39(f),   Article   300A   also <\/p>\n
comes   into   play   while   interpreting   the   concept   of <\/p>\n
property rights. Article 300A is as follows:\n<\/p>\n
            “300A.  Persons   not   to   be   deprived   of <\/p>\n
            property   save   by   authority   of   law:  No <\/p>\n
            person   shall   be   deprived   of   his <\/p>\n
            property   save   by   authority   of   law.”<\/p>\n<\/blockquote>\n
40.    Right   to   property   is   no   longer   fundamental   but <\/p>\n
it   is   a   Constitutional   right   and   Article   300A <\/p>\n
contains a guarantee against deprivation of property <\/p>\n
right save by authority of law.\n<\/p>\n
41.    In   the   instant   case,   Section   16(3)   as   amended, <\/p>\n
does   not   impose   any   restriction   on   the   property <\/p>\n
right   of   such   children   except   limiting   it   to   the <\/p>\n
property of their parents. Therefore, such children <\/p>\n
                                      26<\/span><\/p>\n
will   have   a   right   to   whatever   becomes   the   property <\/p>\n
of their parents whether self acquired or ancestral.\n<\/p>\n
42.    For   the   reasons   discussed   above,   we   are <\/p>\n
constrained   to   take   a   view   different   from   the   one <\/p>\n
taken   by   this   Court   in         Jinia   Keotin     (supra), <\/p>\n
Neelamma     (supra)   and     Bharatha   Matha      (supra)   on <\/p>\n
Section 16(3) of the Act.\n<\/p>\n
43.    We   are,   therefore,   of   the   opinion   that   the <\/p>\n
matter should be reconsidered by a larger Bench and <\/p>\n
for   that   purpose   the   records   of   the   case   be   placed <\/p>\n
before   the   Hon’ble   the   Chief   Justice   of   India   for <\/p>\n
constitution of a larger Bench.\n<\/p>\n
                                 …………………..J.\n<\/p>\n
                                 (G.S. SINGHVI)<\/p>\n
                                 …………………..J.\n<\/p>\n
New Delhi                        (ASOK KUMAR GANGULY)\n\nMarch 31, 2011\n\n\n\n\n                                27<\/span>\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Revanasiddappa & Anr vs Mallikarjun & Ors on 31 March, 2011 Author: Ganguly Bench: G.S. Singhvi, Asok Kumar Ganguly REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2011 (Arising out of Special Leave Petition (C) No.12639\/09) Revanasiddappa & another …Appellant(s) – Versus – Mallikarjun & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-115226","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRevanasiddappa & Anr vs Mallikarjun & Ors on 31 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/revanasiddappa-anr-vs-mallikarjun-ors-on-31-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Revanasiddappa & Anr vs Mallikarjun & Ors on 31 March, 2011 - 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