Judgment:
S. Siri Jagan, J.
1. The facts of this case once again proves that time is a great leveller. A member of the erstwhile Cochin Royal Family, the head of which, the Maharaja of Cochin, once ruled part of the present Kerala State, has come down to the earth and is fighting for rights in family property just like lesser mortals. Stage by stage, the members of the royal family lost their pre-eminent position in the society and have now become very ordinary citizens, which is exemplified by this case.
2. With the advent of democracy, the Monarch lost his Kingdom and throne. Still, the family was not subject to all the personal laws of the land. By virtue of Sub-section (iii) of Section 5 of the Hindu Succession Act, which applied to all the other Hindus in the country, properties of the Cochin Royal Family, which is known as Valiamma Thampuran Kovilagam Estate and the Palace Fund were exempted from the purview of the said Act, although the members of the family were Hindus. By virtue of Proclamation IX of 1124 dated 29th June, 1949, the Valiamma Thampuran Kovilagam Estate and the Palace Fund which were the Joint Hindu Family properties of the Cochin Royal Family were impartiable and were administered by the Palace Administration Board created by the said proclamation promulgated by the Maharaja of Cochin. Later on, by the Valiamma Thampuran Kovilagam Estate and Palace Fund (Partition) Act, 1961, (for short 'the Partition Act') Clause (iii) of Section 5 of the Hindu Succession Act, 1956 which exempted the said estate and palace fund from the purview of the Hindu Succession Act, was omitted with effect from the date of execution of the partition deed in respect of the family properties under Section 6 of the above said Partition Act. Later on, after the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the Partition Act was again amended amending certain provisions of the Act so as to make it in consonance with the change of law on account of the enactment of Kerala Joint Hindu Family System (Abolition) Act, 1976. However, the members of the Royal Family did not have the right available to ordinary citizens in so far as by virtue of Section 7 of the Partition Act, they had no right to institute a suit for partition of the estate and the palace fund. It is in view of the embargo contained in that section, this Original Petition has come up before this Court, which essentially is in the nature of a suit for partition.
3. The facts of this case makes interesting reading. The 1st petitioner in this Original Petition, namely, Smt. Krishnakumari Thampuran is a member of the Cochin Royal Family. She originally married a Namboodiri and begot a male child in that wedlock. Later on, while the said husband was still alive, without obtaining divorce, the 1st petitioner married a Muslim and begot two children in that marriage, who are petitioners 2 and 3 in this Original Petition. Essentially, this Original Petition relates to the claim of petitioners 2 and 3, the children of the 1st petitioner, in her illegitimate marriage, for share in the family properties, namely, the Valiamma Thampuran Kovilagam Estate and the Palace Fund in accordance with the Partition Act. While the Palace Administration Board denies the right of petitioners 2 and 3 as members of the Cochin Royal Family, the petitioners claim that they are members of the Thavazhi of their mother and as such are entitled to equal shares in the family properties just like any other member of the family.
4. Before going into the legal issues raised, let us recapitulate the provisions of law applicable on the subject. By virtue of the proclamation of the Maharaja of Cochin promulgated on 29th June, 1949, the administration of the estate and the palace fund treated as per the proclamation vested with the Palace Administration Board the 1st respondent herein. As I have already mentioned earlier, originally, by virtue of Section 5(iii) of the Hindu Succession Act, the provisions of the said Act were not applicable to the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board and the family properties were not partible also. In 1961, the Kerala Legislature enacted the Valiamma Thampuran Kovilagam Estate and Palace Fund (Partition) Act, 1961, to make provision for the partition of the Valiamma Thampuran Kovilagam Estate and Palace Fund belonging to the family of the Maharaja of Cochin. The provisions relating to such partition in the said Act, relevant for our purpose were originally contained in Sections 3 to 7 of the said Act which read as follows:
3. Maharaja of Cochin to order partition:-Notwithstanding anything contained in Section 22 of the Proclamation, if arequest in writing is made by the majority of the major members and the Maharaja of Cochin is satisfied that in the interests of the family it would be desirable to partition the Estate and the Palace Fund, among all the members, he may declare his decision to effect a partition under his supervision and control, and direct the Board to proceed with the partition.
(2) The decision of the Maharaja of Cochin under Sub-section (1) shall be published by the Board in the Gazette in English and Malayalam. and a copy of the notification shall be affixed in a conspicuous place at the office of the Board.
4. Share of members:
(1) Each member shall be entitled to an equal share of the Estate and the Palace Fund.
(2) The share obtained by a member on partition shall be the separate property of the member.
(3) A child who is in the womb on the date of the publication of the decision under Section 3 and who is subsequently born alive shall have the same right for a share in the Estate and the Palace Fund as any other member as if he or she had been born on or before the date of such publication.
5. Power to exclude properties from partition:
(1) Notwithstanding anything contained in Section 3, the Maharaja of Cochin may, if he is satisfied that any specified property or properties of the Estate and the Palace Fund shall not be partitioned, but shall remain as common property for the benefit of the family, exclude such property or properties from being partitioned.
(2) Any property excluded under Sub-section (1) shall be subject to the management of the Board and the provisions of the Proclamation shall apply to such property.
6. Execution and registration of partition deed: The deed of partition shall be executed on behalf of all the members by the Maharaja of Cochin and the members of the Board and shall be binding on all the members of the family and shall be registered under the provisions of the Indian Registration Act, 1908 (Central Act 16 of 1908).
7. Suit for partition barred: Nothing in this Act shall be deemed to confer on any member the right to institute a suit for partition of the Estate and the Palace fund.
5. Later on, by Amendment Act 15 of 1978, the said Act was amended. Sections 4 and 5 were deleted and Section 3 was amended as follows:
3. Partition of the Estate and the Palace Fund:
(1) The seniormost male member of the family shall, within sixty days from the date of commencement of the Valiamma Thampuram Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Ordinance, 1978, direct the Board to effect partition of the Estate and the Palace Fund among all the members entitled to a share of the Estate and the Palace Fund under Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (30 of 1976), and such a direction shall be published by the Board in the Gazette:
(2) If the seniormost male member fails to direct the Board as required by Sub-section (1) the Board shall, on the expiry of the period specified in that sub-section proceed to effect the partition of the Estate and the Palace Fund among the members referred to in Sub-section (1), and the partition so effected shall be valid notwithstanding anything contained in Section 4 of the Proclamation.
The other provisions essentially remain the same. Apparently, this amendment was necessitated because of the enactment of Sections 3 and 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975, which read as follows:
3. Birth in family not to give rise to rights in property:- On and afterthe commencement of this Act, no right to claim any interest in any property of an ancestor during his or her lifetime which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognised in any court,
4. Joint tenancy to be replaced by tenancy in common: (1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall, with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:
Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, i f any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed.
(2) All members of a joint Hindu family, other than an undivided Hindu family referred to in Sub-section ( 1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof.
The provision of law on the basis of which the petitioners lay their claim in this Original Petition is Section 16 of the Hindu Marriage Act, 1955 as amended by Act 68 of 1976, which reads thus:
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 child is born before or after the commencement of the Marriage Laws (Amendment) Act, 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.
6. The petitioners, relying on Section 16, claim that by virtue of that section, even if illegitimate, petitioners 2 and 3 have to be regarded as legitimate and therefore they should be treated on par with other coparceners of the Cochin Royal Family, thus becoming entitled to equal share in the property, they having been born in 1969 and 1970, much before the Kerala Hindu Joint Family System (Abolition) Act and the Amendment Act 15 of 1978 of the Partition Act. The petitioners would submit that by virtue of the decision of Smt. Paravankandiyal Eravath Kanapravan Kalliani Amma and Ors. v. K. Devi and Ors. reported in : AIR1996SC1963 , the illegitimate children of a Hindu woman have to be treated as legitimate for all practical purposes including succession to the properties of their parents. According to counsel for the petitioners, if the petitioners are entitled to succeed to the properties of their parents, then they would be more so entitled to shares in the family properties where they can claim equal rights in the family properties by their own right along with the legitimate children of the family. In support of this contention, counsel for the petitioners further relies on the decisions of Kavalappara Kottarathil Kochunni @ Moopil Nayar v. State of Madras and Ors. reported in : [1960]3SCR887 , Gopalan Nambiar v. Kunhi Amma reported in 1971 KLT 921, Rasala Surya Prakasarao and Ors. v. Rasala Venkateswararao and Ors. reported in : AIR1992AP234 as also the decision of Narayani v. Aravindakshan, reported in : AIR2006Ker26 . These decisions, except the Andhra Pradesh decision, do not directly deal with the right of illegitimate children to succeed to coparcenery property. However, heavily relying on the Andhra Pradesh decision, which does relate to succession of illegitimate children to the coparcenery property, counsel for the petitioners would submit that the proposition that illegitimate children are, by their own right, entitled to claim shares in the coparcenery property along with legitimate children is a logical extension to the principle laid down in P.E.K. Kalliani Amma's case (supra). He would also point out that the Supreme Court has categorically held the amendment to Section 16 of the Hindu Marriage Act which came into force in 1976, giving rights to illegitimate children along with legitimate children as retrospective and therefore the principle laid down therein would apply to the petitioners, although they were born in 1969 and 1970.
7. On the other hand, relying on paragraph 79 of the very same decision, viz. P.E.K. Kalliani Amma's case (supra), counsel for the Palace Administration Board would contend that although illegitimate children do have proprietary rights for succession, the same is confined to right in properties of their parents and not to any other properties. He would, by referring to the decision of the Bombay High Court in Shantaram Tukaram Patil and Anr. v. Smt. Dagubai Tukkaram Patil and Ors., re-ported in : AIR1987Bom182 and the decision of the Supreme Court in Jinia Keotin v. Kumar Sitaram, reported in 2003(1) KLT 348, submit that such rights of the illegitimate children for succession to property cannot be extended to coparcenery properties.
8. Before going into the question posed before me, I may also refer to some more facts of the case relevant for the purpose. Petitioners 2 and 3 were born on 6-3-1969 and 25-5-1970 respectively. In 1980, some of the properties of the Valiamma Thampuran Kovilagam Estate was partitioned and the 1st petitioner, as a member of the Cochin Royal Family, was allotted appropriate share thereon. The 1st petitioner filed O.P.No. 2305/1996 in which she disputed that she has been given her due as per her entitlement and sought rendition of accounts as also partition of the remaining properties. Petitioners 2 and 3 filed O.P.No. 4822/1996 claiming shares in the family properties as members of the joint family. Both the Original Petitions were dismissed by a learned Judge of this Court by Ext. P4 judgment dated 10-10-1996. The 1st petitioner filed W.A.No. 1987/1996 and petitioners 2 and 3 filed W.A.No. 12/1997 in which, by judgments dated 12-3-1997 produced as Exts. P5 and P5(a), this Court directed the Palace Administration Board to dispose of the representations filed by the petitioner uninfluenced by the findings recorded by the learned Judge in Ext. P4 judgment. Thereafter, the Palace Administration Board considered the representations of the petitioners, which are Exts. P6 and P6(a) and passed Ext. P7 order dated 24-4-1997, by which the claims of both the 1st petitioner as also petitioners 2 and 3 were rejected. Ext.P7 order is under challenge in this Original Petition.
9. Although Ext. P7 contains the decision in respect of the claims of the 1st petitioner also now, before me, the petitioners confine their claim to that of petitioners 2 and 3, which has been considered by the Palace Administration Board as point No. 2 which has been stated thus:
Whether Sabu and Sali, the children of Smt. Krishnakumari Thampuran, are members of Cochin Royal Family entitled to equal share in the properties of Cochin Royal Family.
The Palace Administration Board considered and decided that point as follows:
Point No. 2. From Exhibit P-2 filed along with O.P.No.4822/96, the arguments submitted at the time of hearing and the argument notes submitted on 12/4/1997, the point that emerges is whether Sabu and Sali the children of Smt. Krishnakumari Thampuran are entitled to share of the Cochin Royal Family. They have claimed share on the basis that they are children born to a female member of Cochin Royal Family. It is an admitted case that Krishnakumari Thampuran had married one Vasudevan Namboodiri. Her husband Namboodiri is still alive. The marriage is subsisting. It has not been dissolved. While the husband is alive she claims to have married a Muslim and Sabu and Sali are children born to her in the Muslim husband. Therefore Sabu and Sali are to be treated only as illegitimate children of Krishnakumari Thampuran. The marumakkathayam law has not recognised the illegitimate children as members of marumakkathayam family. The decision in AIR 1960 SC1080 relied on by the Counsel has only stated that in a marumakkathayam tarawad, for the purpose of the inheritance, descent is traced through the female line. The decision of Hon'ble Supreme Court does not support the claim of Sabu and Sali. The claims of Sabu and Sali that they are not illegitimate children of Smt. Krishnakumari Thampuran also cannot be supported. Admittedly there is no divorce between Krishnakumari Thampuran and her husband Vasudevan Namboodiri. Therefore even if there is a marriage between Krishnakumari Thampuran and the Muslim father of Sabu and Sali the marriage is void and illegal. The children born to them are therefore illegitimate.
A concept of marumakkathayam family is that it is a group of persons forming a joint family with community of property governed by the marumakkathayam law of inheritance. A Thavazhi is joint in estate, food and worship as in the case of a joint Hindu family. Every member is therefore entitled to worship jointly. It is not possible for a Muslim to have joint worship with a marumakkathayam family. They cannot be treated as members of Cochin Royal Family who are Hindu marumakkathayees. A junior member of Thavazhi or tharawad has a right to residence in the tharawad house and when he becomes the senior most member of thavazhi, the right to become Karanavan. If this test is applied, Sabu and Sali cannot be treated as junior members of a Cochin Royal Family.
The Hon'ble Supreme Court has, in a decision reported in AIR 1996 SC 1964, held that the illegitimate chi ldren by virtue of Section 16 of the Hindu Marriage Act have to be treated as legitimate for the purpose of succession to the properties of their parents. The Hon'ble Supreme Court said that the legitimacy is conferred only for the limited purpose of succession to the properties of parents and not for any other purpose. This decision was rendered in a case governed by marumakkathayam law in Kerala. In the above circumstances, the Palace Administration Board regrets its inability to concede the demand made in Exhibit P-2 petition in O.P.No. 4822/96. Sabu and Sali are not members of Cochin Royal Family and they are not entitled to any share of the properties.
The Palace administration Board is therefore of the view that the claim put forward by Sabu and Sali, children of Smt. Krishnakumari Thampuran, that they may be allotted shares in the properties and Palace Fund by partitioning the properties metes and bounds is not available to be entertained, for the reasons set out above they are illegitimate children and that cuts at the rootoftheirclaim.
The petitioners' contentions, as noted above, are against these findings of the Palace Administration Board. Now, I shall consider the rival contentions of the parties.
10. The claim of the petitioners is based on Section 16 of the Hindu Marriage Act, 1955, which confers certain rights on illegitimate children also in respect of succession to properties. It cannot be disputed now, in view of the several decisions of this Court and the Supreme Court, that the amendment to Section 16 of the Hindu Marriage Act is retrospective in nature and to that extent, petitioners 2 and 3 can rely on the said Section, if the same is applicable to the properties in question. But, the question is whether the rights conferred by Section 16 extend to right as heirs in coparcenery property. In this connection, the said Sub-section 3 of Section 16 is very relevant. I shall once again extract Sub-section 3 of Section 16 for convenience:
(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.
Going by that, the rights of the illegitimate children do not extend to property of any person other than the parents. Petitioners' contention is that they are not claiming rights over either properties of their parents or over that of any other person. According to them, they are claiming properties of their own as coparceners in a joint Hindu family wherein by birth alone, a coparcener gets right in the joint family property. In P.E.K. Kalliani Amma's case (supra), the Supreme Court interpreted Section 16 in paragraphs 76 to 80 as follows:
76. The words 'notwithstanding that a marriage is null and void under Section 11' employed in Section 16(1) indicate undoubtedly the following:
(a) Section 16(1)stands delinked from Section 11.
(b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.
(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16( 1) was amended.
(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.
(e) Section 16(1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy.
Section 16, in its present form, is, therefore, not ultra vires the Constitution.
77. Section 16 contains a legal fiction. It is by a rule of fictio juris that the Legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.
78. When an Act of Parliament or a State Legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the Court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the Legislature and the purpose may be carried to its logical conclusion. (See: J.K. Kottan Spg. and Wvg. Mills Ltd. v. Union of India AIR 1988 SC19, American Home Products Corporation v. Mac Laboratories : AIR1986SC137
Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952) AC 109 B : (1951) 2 All ER 587 observed that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so also imagine as real the consequences and incidents which inevitably have flowed from it - one must not permit his 'imagination to boggle' when it comes to the inevitable corollaries of that state of affairs (See also: M. Venugopal v. Divisional Manager, LIC : (1994)ILLJ597SC .
79. 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.
80. Obviously, appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father. Raman Nair, under Section 16(3) of the Act.
But, that does not specifically throw any light regarding the problem facing us in this case in so far as the Supreme Court had no occasion to consider the question as to whether such illegitimate children would become entitled to succeed to the coparcenery property on their own right. Of course, in Gopalan Nambiar 's case (supra), a learned Judge of this Court had held that children born to a woman by more than one husband would constitute one Tavazhi. But, there, the question of illegitimacy did not come into play at all. As such, that decision also is of no help to us to solve the problem facing us in this case.
11. In Narayani 's decision (supra) although the rights in the properties of illegitimate children were directly in question, there also what was decided was that the children conceived out of the void and voidable wedlock is entitled to get share in the properties of their parents. But, the Andhra Pradesh decision in Rasala Surya Prakasarao's case (supra) does lay down a principle which at first blush may seem in favour of the petitioners in this case. Paragraphs 31 to 33 lay down the principle enunciated by the Court, which read as follows:
31. The Division Bench simply considered the scope of unamended Section 16 of the Hindu Marriage Act, but did not refer to this decisions of Guru Narain v. Guru Tahal Das : [1952]1SCR869 (supra), Raju v. Aranagiri AIR 1933 Madras 397 (supra) and Ajit Kumar v. Ujayar Singh : [1962]1SCR347 (supra). While the Supreme Court and the Privy Council indicated that the illegitimate son of a Sudra, after the father's death, is entitled to partition and is also entitled to rights of survivorship and that they become coparceners with the legitimate sons, the Division Bench gave its decision without considering the earlier case law. Assuming for a moment the decision of the Division Bench is acorrect interpretation of Section 16 prior to its amendment, the same cannot hold the field after Section 16 of the Hindu Marriage Act has been amended in 1976. Reading the principle laid down by theMadras High Court in this decision in comparison to the law laid down by the Shantaram v. Dagubai : AIR1987Bom182 (supra), we prefer to follow the Bombay High Court's view which gives a more liberal interpretation and takes into consideration the object of Section 16 and its amendment. We do not wish to follow the restrictive interpretation given by the Madras High Court.
32. Mr. S.C. Rangappa contended that Section 16 as amended cannot have the effect of diminishing the shares of legitimate sons in the joint family property of their father and under Section 16(3), the rights of succession of legitimatized sons are confined only to the separate property of their parents. This argument is neither correct nor acceptable. As pointed out supra, even prior to the advent of Section 16 of the Hindu Marriage Act, the illegitimate sons had the right to demand partition of the father's estate after the death of the father. He gets rights as member of the family and as a coparcener. He also gets rights of survivorship. Once father is divided from the joint family, whether his estate con sists of ancestral property or separate property or partly ancestral or partly separate property, the legitimatized son is entitled to equal share along with the natural son. In the present case, we are dealing with a father who is divided from his brothers and we are dealing with the property of a deceased father. In our view, the restriction regarding not affecting the rights of shares of others is confined to the shares of the undivided brothers of the father. It does not apply to the rights of shares of the natural sons. Now under the amended law, the legitimatized son has to be equated with the natural son.
33. From the principles enunciated in the various decisions discussed above, it is quite clear that even prior to the advent of Section 16 of the Hindu Marriage Act, both as per the Shastraic and textual law as well as the decisions of the highest courts, the illegitimate son of a Sudra is entitled to enforce a partition after the father's death. He is entitled to the rights of survivorship as he becomes a coparcener with the legitimate son. The decisions have held that he is a member of the family and that he has status as a son and by virtue of that he is entitled to the right of survivorship. Section 16 of the Hindu Marriage Act has conferred on him the status of a legitimate son and his otherpre-existing rights are, in no way, curtailed. After the 1976 amendment of Section 16, the benefits of Section 16 are enlarged and such benefits are also conferred on a son of a marriage which is void under the provisions of the Hindu Marriage Act, whether a decree of nullity is passed or not, such a son becomes a legitimate son. Such a child is also entitled to rights of succession under the Hindu Succession Act. A child of void marriage is related to its parents within the meaning of Section 3(1)(j)ofthe Hindu Succession Act by virtue of Section 16 of the Hindu Marriage Act. Proviso to Section 3( 1 )(j) must be confined to those children who are not clothed with legitimacy under Section 16 of the Hindu Marriage Act. In conclusion, we hold that by virtue of Section 16( 1) of the Hindu Marriage Act, as amended in 1976, the illegitimate son can be equated with his natural sons and treated as coparceners for the properties held by the father whether the property be originally joint family property or not. The only limitation is that during the lifetime of the father the illegitimate son of a void marriage is not entitled to see a partition. He can seek a partition only after the death of the father.
A cursory reading of the same would show that the Andhra Pradesh High Court had categorically laid down that illegitimate son can be equated with his natural sons and treated as coparceners for the properties held by the father, whether the property be originally joint family property or not with a limitation that the illegitimate son of a void marriage is not entitled to seek partition during the life time of the father. But, on examining in depth, I must note that although the decision speaks about coparcenery property, the right of shares claimed in that case is in respect of the properties of the father by illegitimate children as coparceners of the family along with other children of the father itself. Therefore, this also may not be a decision directly in favour of the proposition that an illegitimate child can claim coparcenery rights in respect of family properties, which do not belong to its father.
12. Although, in paragraph 79 of P.E.K. Kalliani Amma's case, (supra), it has been held that illegitimate children cannot succeed to the properties of any other relation and is limited to the properties of the parents, the same cannot ipso facto be applied to the problem at hand since the same does not categorically relate to coparcenery property, as I have observed earlier.
13. But, the view of the Bombay High Court is directly dealing with an identical question as in this case, as found in the decision of Shantaram Tukaram Patil's case (supra). Paragraph 27 of the decision summarises the propositions of law laid down by the Court, which may be extracted below:
27. We now summarise the propositions of law emerging from the discussion made above:
1. In regard to a child of a void marriage:
(1) 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 (Section 16( 1), Hindu Marriage Act);
(2) 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. (Section 16(3), Hindu Marriage Act);
(3) The property to which such a child can lay claim must be the separate property of the parents and not the coparcenary property in which the parent has a share Contrary view in Rughunath v. Nana (1985) 87 Bom. LJ 488 is not the correct law.
(4) Since no child, whether legitimate or otherwise, acquires right by birth in the separate property of its parent, a child of a void marriage can only succeed to the property of its parent in accordance wit the provisions of Section 6 or Section 15, Hindu Succession Act;
(5) 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 16, 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.
II. In regard to a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act:
(1) Section 25, Hindu Marriage Act, confers upon a woman, whose marriage is void or is declared to be void, a right of maintenance against her husband;
(2) This right of maintenance can be enforced by her not only in proceedings under Section 25, Hindu Marriage Act, but also in any other proceedings where the validity of her marriage is determined;
(3) This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death;
(4) Of course, this right of maintenance is available only during her Me time and ceases if she remarries.
In this decision, in unmistakable terms, the Bombay High Court held that the property to which an illegitimate child can lay claim must be separate property of the parents and not the coparcenery property in which parerjt has a share.
14. Now, I shall come to the decision of the Supreme Court in Jinia Keotin's case (supra), wherein the Supreme Court did specifically consider the question as to whether an illegitimate child is entitled to share in coparcenery property. In paragraph 5 of the said judgment, the Supreme Court held as follows:
5. So far as Section 16 of the Act is concerned, though it enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide 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 23, 'any right 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. Consequently, we are unable to countenance the submission on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference in this appeal.
I note that while holding so, though not clear from the above paragraph, the Supreme Court was in fact considering the question as to whether the illegitimate children of a Hindu were entitled to a share in the coparcenery property in terms of Section 16(3) of the Hindu Marriage Act, 1955. though they can claim to be entitled to their due share in the property of their parents, as is evident from paragraphs 1 and 2 of the judgment which narrate the facts of the case. The following sentence in paragraph 2 would make it abundantly clear:
2. In the light of the above, the plaintiff was held entitled to 1/9th share in the suit A to D schedules properties and the children of Sahadeo through Smt. Jinia Keotin were held not entitled to any share in the coparcenery property in terms of Section 16(3) of the Hindu Marriage Act. 1955. though they may claim to be entitled to their due share in the property of their parents.
(emphasis supplied)
15. In paragraph 3 of the judgment, the Supreme Court noted the contention of counsel as follows:
Shri. Lakshmi Raman Singh, the learned Counsel for the appellants, while reiterating the stand taken before the courts below, vehemently contended 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 nojustification to deny them equal treatment on par with the children born of lawful wedlock by countenancing claiming for inheritance even in the ancestral coparcenery property.
It is while dealing with the above contention that the Supreme Court had entered the finding as extracted above.
16. The reason for arriving at this conclusion has been stated by the Supreme Court in paragraph 4 of the judgment which reads thus:
4. We have carefully considered the submissions of the learned Counsel on 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 of 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 the 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 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 set back in life and in the eyes 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 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 are concerned to the properties of the parents only.
17. Apparently, the Supreme Court interpreted the intention of the legislature in enacting amendment to Section 16(1) thus, so as to avoid bastardizing of children born out of a void marriage or an annulled marriage. In other words, for the indiscretion of the parents, the poor innocent children should not be made to suffer. But, at the same time, by that legal fiction, the rights of others shall not be affected and therefore confined the rights of such children to the properties of the parents who alone are responsible for the difficult position the children were put into. Therefore, the Supreme Court gave a very strict interpretation to Section 16(3) and confined the operation of Section 16(3) to the separate properties of the parents alone, excluding all other property including coparcenery property, thereby holding that the said illegitimate children cannot have rights as coparceners of the joint family. Hence, it can be safely presumed that the decision of the Andhra Pradesh High Court in Rayala Surya Prakasarao's case, even if the same is taken as a decision in respect of coparcenery property, stands impliedly overruled by the Supreme Court by this decision. In view of the said decision of the Supreme Court, which is binding on me, there cannot be two answers to the question posed before me and it can only be decided in one way, that is against the petitioners.
18. I am of opinion that the petitioners should be non-suited on another ground also. The petitioners 2 and 3 were born in 1969 and 1970. They became major in 1987 and 1988. They approached this Court first for the present relief only in 1996. Certain properties of the joint family were partitioned as early as in 1980 in which partition the 1st petitioner was also allotted share. The 1st petitioner did not find it necessary to challenge the said partition within a reasonable time claiming shares for her children also. Petitioners 2 and 3 also did not think it fit to approach this Court within a reasonable time, after they became majors. They waited for 7 and 8 years respectively. By virtue of the partition in 1980, the members of the family, who were entitled to shares in joint family property, whose number comes to 719 and already got their shares may have disposed of their shares. It would be practically next to impossible to get back those properties so as to again partition the properties to allot shares to petitioners 2 and 3 also at this distance of time. Therefore, there has been laches on the part of the petitioners in approaching this Court, which delay has not even been attempted to be explained. The delay has in fact caused very serious prejudice to the 718 other members of the joint family and, as such, I am of opinion that the original petition should fail on the ground of delay and laches also.
Accordingly, I find no merit in the Original Petition and the same is hereby dismissed, but without any order as to costs.