N. Kumar, J.
1. This is the plaintiffs second appeal against the judgment and decree of the lower appellate Court which has dismissed the suit for partition after setting aside the judgment and decree of the trial Court which had decreed the suit.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiff is the son of the first defendant Boregowda through his fourth wife Chikkathayama. Second defendant Krishnappa is the son of Boregowda through his second wife Smt. Jayamma. Basamma, Sakkamma and Boramma, defendants 3 to 5 are the daughters of Boregowda through his third wife Devamma.
4. The case of the plaintiff is he and defendants constitute a Hindu Undivided Family. All the suit schedule properties are joint family properties. First defendant is the Kartha of the joint family. Plaintiff is in joint possession of the suit schedule properties as Co-larcener along with the defendants. As it is not possible for him to continue any longer in the joint family he sought for his share in the suit schedule properties.
5. The first defendant filed the written statement. He contended that the plaintiff is not his son and, therefore, he is neither a Co-larcener nor a member of the family of the defendant. He is not in possession of the suit schedule properties as Co-larcener. Therefore, he sought for dismissal of the suit.
6. No other defendants filed any written statement.
7. On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether plaintiff proves that he is the son of the first defendant born through Smt. Chikkathayamma?
2. Whether plaintiff proves that himself and the defendants constitute members of an undivided Hindu family possessing suit schedule property as joint family properties?
3. Whether plaintiff is in joint possession of the suit schedule properties as coparceners?
4. Whether plaintiff is entitled to 1/4th share in the suit schedule properties?
5. What order or decree?
8. The plaintiff in support of his case examined himself as P.W-1. He examined 5 witnesses as P.Ws-2 to 6 and produced 19 documents which are marked as Ex.P-1 to P-19. No evidence was adduced on behalf of defendants. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the oral evidence on record coupled with the documentary evidence by way of Ex.P-3 the registered sale deed in favour of plaintiff's mother and Ex.P-1 the Transfer Certificate, Ex.P-2 the wedding card of the plaintiff and the Voters list, clearly prove that the plaintiff is the son of the first defendant born through Chikkathayamma. As admittedly, there was no partition in the family, the trial Court proceeded to pass decree for partition granting 1/4th share to the plaintiff.
9. Aggrieved by the said judgment and decree, second defendant and one Padmamma who was not party to the suit, who is the sister of Krishnappa, filed R.A. No. 71/04 challenging the judgment and decree of the trial Court. The lower appellate Court on re-appreciation of the entire evidence on record formulated the following points for consideration.
1. Whether there is a need to remit the matter to the trial court?
2. Whether the respondent No. 1 (Plaintiff) is the son of deceased first defendant?
3. Whether the marriage of the mother of the respondent No. 1 and deceased defendant No. 1 took place prior to coming into force of the Hindu Marriage Act or subsequent to it?
4. Whether respondent No. 1 is entitled to a share in the suit schedule properties?
5. Whether the judgment and decree under appeal call for interference?
10. Thereafter, it affirmed the findings of the trial Court that the plaintiff is the son of first defendant. It further held that the marriage of the plaintiffs mother with the first defendant took place subsequent to coming into force of the Hindu Marriage Act, 1955 for short hereinafter referred to as 'the Act'. Therefore, it held that the plaintiff has no right to seek partition in a joint family property or co-parcenary property. Therefore, it dismissed the suit of the plaintiff and allowed the appeal.
11. Aggrieved by this judgment and decree, the plaintiff is in second appeal.
12. In this appeal, the following substantial question of law do arise for consideration:
1. Whether, a son born out of void or voidable marriage (illegitimate son) has a right to maintain a suit for partition in respect of coparcenary or joint family property?
2. Whether a son born out of void or voidable marriage (illegitimate) can maintain a suit in respect of the property of his father, against his father?
13. Sri. B.T. Parthasarathy, learned Senior Counsel appearing for the appellant contended that after introduction of Section 16 in the Hindu Marriage Act, 1955 by Act 68 of 1976, the social status of legitimacy has been conferred on group of innocent children who are otherwise treated as bastards. Thus, by a legal fiction, the illegitimate children are admitted as legitimate for all practical purpose including succession to properties of their parents. Therefore, after the enactment of Section 16, no distinction is to be made between legitimate son and an illegitimate son in so far as their right to property is concerned. They have equal right not only in the property of their parents, they have a right even in respect of ancestral property or joint family property. Therefore, the lower appellate Court committed serious error in reversing the well considered Judgment of the trial Court which had decreed the suit of the plaintiff. He further contended that there is no bar in any law for a son to file a suit against his father during his lifetime in order to protect his interest in the property. Therefore, the suit filed by the plaintiff against his father even in respect of the property of the father, is maintainable and is entitled to a decree for partition.
14. Per contra, the learned Counsel appearing for the defendant-respondents Sri. Y.K. Narayana Sharma, submitted that effect of introduction of Section 16 in Act, 1955 is only to confer the status of legitimacy to an illegitimate child. Section 16(1) and (2) gives the status of a legitimate child to an illegitimate child born of such void and voidable marriages in contravention of Section 5 and 8 of Act. Sub-section (3) of Section 16 imposes limitation in so far as the right of such children in the matter of enforcing their right to the property of their father. By virtue of Section 16, both the legitimate and illegitimate children are entitled to equal share only in the properties of their parents. An illegitimate son is not equated to the status of a coparcener and therefore, the illegitimate son has no right in the joint family property or in the co-parcenary property. May be, he has a right in the share of his father in the joint family property. Beyond that an illegitimate child cannot be equated to a legitimate child who is a Co-larcener. Further he submitted that no son has a right to maintain a suit against his father during his life time. The right of a father in a property devolves on his son only after his death in accordance with the provision of Hindu Succession Act, 1956. The said Act provides for inte state succession and the right to the property arises on the father dying inte state. Therefore, the right which the legitimate son do not possess, the illegitimate son cannot claim. Even if it is to be held that an illegitimate son has a right in the share of the ancestral property of the father, the said suit is to be filed only after his death and not against his father. In that view of the matter, the judgment and decree of the lower appellate Court is legal and valid and do not call for interference.
15. Before I advert to the legal position, it is necessary to have the undisputed facts emerging from the record, so that it is on the basis of the factual foundation, the proper law can be made applicable.
16. The material on record shows that Boregowda had four wives. The first wife is Thimmamma, second wife is Jayamma, third wife is Devamma and 4th wife is Chikkathayamma. Admittedly, Thimmamma had no issues. Thimmamma in the year 1984 filed a petition under Section 125 of the Criminal Procedure Code, 1973 claiming maintenance from Boregowda. In the said petition which is marked in this case as Ex.P-7, she has averred that her marriage with Boregowda took place about 34 years back. She also averred that she and Boregowda lived happily as husband and wife all these years. She did not conceive. After some years, Boregowda took second wife even though she was living with Boregowda. In the said petition there is no reference to 3rd and 4th wife. If her marriage is 34 years prior to the date of the said petition, her marriage took place around 1950, about 5 years prior to the date of coming into force of Hindu Marriage Act. Second wife Jayamma had two daughters Padmamma and Puttamma and a son Krishnappa the second defendant in this case. The third wife Devamma had a son by name Basavaraja, the third defendant and four daughters by name Yashoda, Shivamma, Sakamma and Boramma. Sakamma and Boramma are defendants-4 and 5. It is thereafter, he married Chikkathayamma. The plaintiff in his evidence with reference to the documents has given a graphic description of these marriages. It is his case that Thimmamma was the first wife, Jayamma was the second wife, Devamma was the third wife and his mother Chikkathayamma was the fourth wife. To substantiate these relationships he has produced voters list which are marked in the case. He has also produced Ex.P-1 the Transfer Certificate which shows the date of birth of the plaintiff as 01.02.1962. He also has produced Ex.P-5 the Voters list which shows his age as 27 years in the year 1988 and his mother's age is shown as 45 years. His mother who had been examined as P.W-4 in this case in 1994, she has given her age as 40 on the date of her evidence. If her age is to be taken as given by her on the date of deposition, she was born in 1952. If her age in the voters list is taken, she would have been 18 years old on the date when the plaintiff was born, i.e., in 1962. If it is to be held that marriage was prior to the coming into force of the Act, 1955, she ought to have been married at the age of 11 or 12 which is highly improbable. There is yet another Exhibit which is relevant, i.e., Ex.P-3 the sale deed under which Boregowda purchased one item of agricultural land in favour of plaintiff s mother on 18.12.1972, where Chikkathayamma has been described as wife of Boregowda. It is on appreciating this evidence, the trial Court and the appellate Court has rightly held that the plaintiff is the son of first defendant through Chikkathayamma. The lower appellate Court was justified in holding that the marriage between Chikkathayamma and Boregowda is subsequent to 1956 and therefore it is void. It is true that neither the plaintiff nor his mother P.W-4 who were examined in the case have given their date of birth. In the absence of any material being placed on record, the Courts have to consider and record a finding from what ever material which is available on record. The lower appellate Court even in the absence of any assistance from the parties has carefully screened the material on record and has held that when plaintiff was born in 1962, it is probable that the marriage has taken place two or three years prior to that date. The said finding cannot be said to be perverse or not justified. Therefore, the material on record establishes that the 4th marriage of Bore Gowda is subsequent to 1955, after coming into force of the Hindu Marriage Act, 1955 and therefore the marriage is void, and the plaintiff was born in 1962 through the said void marriage.
17. Prior to the Act, 1955 there was no prohibition for a Hindu to have more than one wife. Therefore, all the children born to the said wife were treated as legitimate children, and members of joint family or Co-larcenery. It is only a child born to concubine was treated as illegitimate child. Each one of these legitimate children had a right to maintain a suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenary property. After the passing of the Act, 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over-riding effect and the Personal Law of Hindus in so far as the marriages are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as 'Succession Act', because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for the folly of its parents thought of introducing Section 16 to the Act. It 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 mortgage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(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) of 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.
By Section 16, what the Parliament intended to do was to remove the stigma of dastardliness attached to a child born of such void marriage and the child has been relegated the status of a legitimate child. Therefore, after the amendment Act, 1976 which introduced Section 16 into the Act, the illegitimate son has been given equal status as that of a legitimate son. That is precisely what is sought to be done under Section 16(1) and (2) of the Act. However, the parliament was conscious of the consequences of such status being given to an illegitimate child as it would affect other persons who are in no way responsible for the birth of an illegitimate child. Therefore, they made it clear by introducing Section 16(3) to the effect that such an illegitimate son who is admitted to be a legitimate son by virtue of Section 16 (1) and (2), will have a right only in the properties of the parents and none else. Thus, the conferring of the status did not affect the rights of the persons other than the parents in the property.
18. The vires of the said provision was challenged before the Supreme Court in the case of Parayankandiyal Eravath Kanapravan Lallianiamma and Ors. v. K. Devi and Ors. : AIR1996SC1963 reported in. After referring to the old text of Hindu Law which pointed out that marriage according to Hindu Law is holy union, it is not a contract but a samskara or sacrament, though polygamy was not permitted, a second marriage was allowed in a restricted sense and that too under stringent circumstances. It also noticed that Monogamy was the rule and ethos of the Hindu society which derided a second marriage and rejected it altogether. The touch of religion in all marriages did not allow polygamy to become a part of Hindu culture. Therefore, noticing the various enactments which dealt with the marriage through out the length and breadth of this Country, it held that it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the said enactment was passed. After noticing the various provisions in the said enactment, they also noticed the background in which Section 16 was introduced. Thereafter dealing with the amendment, this is what the Supreme Court has held:
The Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16.
Section 16 was earlier linked with Sections 11 and 12. On account of the language employed in unamended Section 16 and its linkage with Sections 11 and 12, the provisions had the effect of dividing and classifying the illegitimate children into two groups without there being any nexus between the statutory provisions and the object sought to be achieved thereby. It is to be seen whether this mischief has been removed.
Section 16 contains a legal fiction. It is by a rule of fiction juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.
In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.
(underlining by me)
19. In fact, the Division Bench of this Court had a occasion to consider the scope of Section 16 in the case of Patel Chandrappa v. Hanumanthappa : ILR1989KAR2384 . This Court after reviewing the case law on the point held as under:
Thus as far a conferment of right upon a child born out of a marriage which is null and void or annulled by a decree of nullity in or to the property of this parents is concerned, there is no change made in the law by Act 68/1976. The same provision was contained in the old Section as contained in the present Section 16. The words any right in or to the property of any person other than the parents' occurring in Sub-section (3) of Section 16 of the Act are very material for our consideration. From the aforesaid words, it is clear that it is only in the property of the parents such children are given a right and not in any other property of any other person.
(underlining by me)
A coparcenary property cannot in law be construed to be the exclusive property of any of the coparceners. By Sub-section (3) of Section 16 of the Act, the Parliament has limited right of a child falling under Sub-sections (1) of (2) of Section 16 to claim properties. It has limited the right of such a child to the property of his/her parents. In the absence of Sub-section (3) and in view of conferment of legitimacy upon a child falling under Sub-section (1) or (2) of Section 16 of the Act, in the case of a male child, he would have been entitled to be treated in par with the other legitimate sons of his father as a coparcener of the joint family of which the father of such a child is a member. The parliament by a fiction of law having conferred legitimacy on a child covered by Sub-section (1) or (2) of Section 16 of the Act, keeping in view the concepts of Hindu Law, has restricted the operation of the fiction and has made sit operative to the extent of the property of the parents of such child by restricting the right of such child in or to the property of his/her parents. Therefore, the Court must endeavour to see that the legitimacy conferred upon a child born out of a void marriage does not exceed its limitation as laid down in Sub-section (3) of Section 16 of the Act. The reason for the parliament to restrict the right of a child born out of a void marriage covered by Sub-section (1) or (2) of Section 16 of the Act on whom the legitimacy is conferred, is not far to see. In this context it is necessary and relevant to remember that the concepts of 'joint family', 'coparcenary property' or 'joint family property' and the right of a coparcener to acquire by birth an interest in the joint family or coparcenary property, are well-known and the Parliament was well aware of these concepts and it did not want them to be affected. Therefore, keeping in view these concepts, the proviso to old Section 16 and Sub-section (3) of the present Section 16, limited the right of a child falling under Sub-section (1) or (2) of Section 16 of the Act to the property of his/her parents.
The devolution of coparcenary property is also kept in tact by the Hindu Succession Act, Section 6 of the Hindu Succession Act specifically provides for devolution of interest in a coparcenary property. Section 8 of the same Act specifically, provides the Rules of succession to the property of a male Hindu dying interstate. Coparcenary property devolves by survivorship whereas the property of a male Hindu devolves by succession. Sub-section (3) of Section 16 of the Act has to be understood, interpreted and applied in the background of the concepts of joint family coparcener, coparcenary property and Sections 6 and 8 of the Hindu Succession Act. The conferment of right upon a child born out of a void marriage in or to the property of the parents is not introduced for the first time by the Marriage Laws (Amendment) Act, 1976. It was there in the proviso to old Section 16 of the Act. Thus we are of the view that Sub-sections (1) to (3) of Section 16 of the Act read together, do not confer upon a child born out of a void marriage falling under Sub-sections (1) or (2) of Section 16 of the Act the status of a 'coparcener' and do not entitle him to claim a share in the joint family or coparcenary property.
20. Again yet another Division Bench of this Court in the case of Smt. Sarojamma and Ors. v. Smt. Neelamma and Ors. : ILR2005KAR3293 , interpreting Section 16 held as under:
Sub-section (1) of Section 16 of the Act provides that 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 child is born before or after the commencement of the Marriage Laws (Amendment) act, 1976 (Act 68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise than on a petition under the Act. Sub-section (2) further provides that where a decree of nullity is granted in respect of 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 is had been dissolved instead of being annulled, shall be deemed to be the legitimate notwithstanding the decree for nullity is made. Sub-section (3) of the said Section further provides that 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, but for the passing of the 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.
21. Similar is the view taken by the High Court of Bombay, Madras and Andhra Pradesh. In the aforesaid judgment of the Supreme Court in : AIR1996SC1963 , the question involved was, 'what is the status of a an illegitimate child after the introduction of Section 16?' The said judgment did not go into the question as to what are the properties in respect of which the said child can claim a share. That fell for consideration before the Supreme Court in the case of Jinia Keottn and Ors. v. Kumar Sitaram Manjh and Ors. : [2002]SUPP5SCR689 . The argument canvassed before the Supreme Court in the aforesaid case was that once the children born out of void and illegal marriage have been specifically safeguarded under Section 16, as amended by Central act 68 of 1976, there is no justification to deny them equal treatment on a par with the children born of the wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. When once Section 16 chose to legitimate the children born of such void marriages, the prohibition must be held to have been relaxed and the stigma wiped out so as to render the progency, legitimate for all purposes and therefore, the provisions of Section 16(3) of the Act also should be construed keeping in view the totality or circumstances and the object and purpose of the legislation in respect of the right to inherit property also like the children born out of lawful wedlock.
22. After considering the said argument, the Supreme Court held asunder:
We have carefully considered the submissions of the learned Counsel of either side. The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eye of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only.
So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that 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 '. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing' not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself.
(underlining by me)
23. Therefore, it follows that Section 16 of the Act contains a legal fiction. It is by a rule of 'fiction juris' that the legislature has provided that, children though illegitimate shall never the less, be treated as legitimate notwithstanding that the marriage was void or voidable. However, it is a legal fiction with limitation. The reason behind such limitation is that the Parliament had no intention of eclipsing die settled concepts of Hindu Law such as coparcenary, coparcener, coparcenary property, joint family and joint family property, right of coparcener to acquire by birth and interest in the coparcenary or joint family property, under Mitakshara Law. Therefore, the object sought to be achieved by this provision is two fold. Firstly the restoration of status. For the act of the parents over which the innocent child had no control, and for no fault of it, had to suffer a permanent set back in life and being called a bastard, an illegitimate child. This social evil was wiped out. For all practical purposes the child was treated as a legitimate child born out of a lawful wedlock. Secondly, the cause for such a status of affair was their parents. Therefore, in the properties of the parents equal rights are given to such children, as that of the children born of lawful wedlock. After achieving this twin object, the Parliament took care to see that conferment of status and right to property on the illegitimate child did not invade the rights of others, who are also innocent and who are in no way responsible for this sorry state of affairs. Thus, the illegitimate child covered by Section (1) or (2) of Section 16 of the Act, even on conferment of legitimacy, was not allowed by law to claim equal status under Hindu Law as that of a legitimate child. Though by the aforesaid provision the illegitimate child has been conferred the status of a legitimate child, it did not confer the status of a coparcener. Consequently, such a child did not acquire any right by birth in any property much less coparcenary or joint family property. In the light of the express words used in the provision which clearly sets out the legislative intent, in particular Sub-section (3) of Section 16, any attempt on the part of the Courts to expand the scope of the said provision, and confer rights on such child in coparcenary or joint family property amounts to relegislating on the subject, under the guise of interpretation, against the will of the Parliament clearly expressed in the enactment itself. It is impermissible.
24. Sri. B.T. Parthasarathy, learned Senior Counsel relying on Section 307 of Hindu Law by Mulla, contended that every adult Co-larcener is entitled to demand and sue for partition of the coparcenary property at any time. Therefore, he contends that in the absence of any prohibition in any law, a son can maintain a suit against his father for partition of his separate property also.
25. Under the Hindu law, a Hindu son in the area covered by Mitakshara law acquires right in the co-parcenary property by birth. Therefore, he can maintain a suit against his father in respect of his right which he acquires by birth. That is what is precisely stated in Section 307 referred to supra
307. Sons, grandsons and great-grandsons-Every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time.
26. The said right is confined to only co-parcenary property and joint family property. The said right is not extended even in Hindu law to the separate or self acquired property of the father. After the passing of the Succession Act, the rights of Hindus in respect of the property of the father is governed by the said enactment. The said enactment was passed to amend and codify the law relating, interstate succession among Hindus. The word 'interstate' has been defined under Section 3(g) meaning, a person is deemed to die inte state in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In other words, if a person has made a testamentary disposition of his property and if such testamentary disposition is up held, then his natural heirs have no right to succeed or to inherit the said property.
27. Section 6 of the Act deals with devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act. Therefore, it is clear that in respect of a co-parcenary property to which the Succession Act, 1956 is not applicable, such devolution of interest is governed by the Personal Law of Hindus. Coparcenary property devolves by survivorship and not by succession.
28. It is Section 8 which deals with the General Rules of succession in the case of males. It provides that property of a male Hindu dying inte state shall devolve according to the provisions of the Succession Act. Therefore, under the Succession Act, a legal heir of a person is entitled to property only on the death of the male dying interstate. In other words, he has no right to claim a share in the property during the lifetime of the male as defined in Section 8 of the Succession Act. Thus, the property of a Hindu dying interstate devolves by succession only.
29. If a legitimate son cannot file a suit claiming share in respect of his father's property, by virtue of Section 8 of the Succession Act, the illegitimate son who has now been conferred the status of a legitimate son also has no right to claim a share in the father's property by filing a suit. In other words, during the life time of a father, a son, legitimate or illegitimate has no right to seek a share in father's property. Their right arises only after such person dying interstate.
30. The principle underlying the concept is that the property to be divided is Ex. vi termini, the property which has been previously held as Joint Property in co-parcenary. The son's right at birth, under the Mitakshara, is so connected with the right to share in, and to obtain partition of, the estate, that it does not exist independently of the latter right. Thus under the Hindu law, the son acquires right to co-parcenary property by birth. In other words he acquires title to the co-parcenary property by birth. It is a vested right. It is that right in the property, i.e., the right to joint enjoyment of the property, which is transformed into an enjoyment in severally through the process of partition. It is that antecedent title which the members of a co-parcenary posses by birth jointly with other members of the co-parcenary which is specifically defined at the partition. Existence of an antecedent title is a prerequisite for enforcement of a right to partition. Separate or self acquired property of a member of the coparcenary or joint family cannot be the subject matter of partition amongst the member of a co-parcenary or Joint family. No child whether legitimate or illegitimate, acquires any right by birth in the separate property or the self acquired property of its parents. Thus they acquire no title to such property by birth. They do not possess any antecedent title to such property. The right to such property accrues to them only on their parents dying interstate. It is the death of the parents and not the birth of the child, which confers right on such property. In respect of such property, both legitimate and illegitimate child, succeed in accordance with the provisions of Section 8 and 15 of the Succession Act, if the parents die interstate. It is only after the event, i.e. death, the suit for partition could be filed. Therefore, it follows that no suit for partition could be filed against the parents during their life time, in respect of separate self acquired property of parents. The illegitimate son is not a Co-larcener. He has no right in co-parcenary property. However, he has a right in the share of the father in co-parcenary property. That right he can exercise only on his father dying interstate. He has no right by birth in the separate or self acquired property of his parents. His right accrues only after his parents die interstate. Therefore, a son born of void or voidable marriage (illegitimate son) can never maintain a suit in respect of the property of his parent, against his or her parent.
31. Therefore, in the instant case, the plaintiff who is illegitimate son has filed a suit for partition against his father the first defendant. Though he has a right in the share of his father in the co-parcenary or joint family property, to get the said right he has to wait for the death of his father. He cannot maintain a suit against his father claiming right in those properties.
32. Therefore, the lower appellate Court was justified in holding that the suit filed by plaintiff against his father is not maintainable and also the suit filed by the plaintiff seeking partition in respect of the co-parcenary property is also not maintainable.
33. During the pendency of the proceedings the father died and his right in respect of his property devolves on all his children including the plaintiff. In order to cut short the litigation and see whether a share can be given to the plaintiff, in these proceedings itself, an attempt was made, but, it was noticed that in the original suit the plaintiff had not impleaded all the legal heirs of his father. As he died after the decree and before the appeal, in the appeal, most of his children have been brought on record. But none the less they did not have the opportunity to contest the claim of the plaintiff. Now the judgment of the lower appellate Court is in their favour. In those circumstances, the Court has no option except to dismiss the appeal reserving liberty to the plaintiff to file a separate suit for partition claiming his share in the property of his father.
34. In that view of the matter, there is no merit in this appeal. Accordingly, the appeal is dismissed. Parties to bear their own costs. All the I.As are ordered to be filed.