Patel Chandrappa Vs. Hanumanthappa - Court Judgment

SooperKanoon Citationsooperkanoon.com/379472
SubjectFamily
CourtKarnataka High Court
Decided OnJan-13-1988
Case NumberR.F.A. No. 812 of 1987
JudgeK.A. Swami and D.R. Vithal Rao, JJ.
Reported inILR1989KAR2384
ActsHindu Marriage Act, 1955 - Sections 16, 16(1), 16(2) and 16(3); Hindu Marriage (Amendment) Act, 1976; Hindu Law; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 33; Mysore Hindu Law Women's Rights Act, 1933 - Sections 8(1) and 8(2)
AppellantPatel Chandrappa
RespondentHanumanthappa
Appellant AdvocateB.M. Krishna Bhat, Adv.
Respondent AdvocateT.S. Ramachandra and ;R. Gopal, Advs., for R-1 to 4 and 6
DispositionAppeal dismissed
Excerpt:
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(a) hindu marriage act, 1955 (central act no. 25 of 1955) as amended by act no. 68 of 1976 - section 16 - scope & purport - children born out of null & void marriage: right to property - confined to property of parents and not in any other property of any other person - legitimacy conferred under sub-sections (1) and (2) by fiction, limited right granted under sub-section (3) - status of coparcener not conferred & no entitlement to claim share in joint family or coparcenery property. ;question arising for determination as to whether issues born out of marriage null and void are necessary parties to the suit among coparceners and whether entitled to share in coparcenary properties: ;(i) as far as conferment of right upon a child born out of a marriage which is null and void or.....
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k.a. swami, j. 1. this appeal by defendants 1 and 2 is preferred against the judgment and decree dated 17-9-1987 passed by the learned civil judge, bhadravathi in o.s.no. 69 of 1982. at the stage of admission, respondents 1 to 4 and 6 have put in appearance through a counsel. respondents 5 and 7 are neither served nor represented. after hearing both the sides, we are of the view that the appeal can be disposed of at this stage as the modification of the decree agreed to by the plaintiffs 1 to 4 (respondents 1 to 4 in the appeal) does not affect the appellants and respondents 5, 6 and 7, on the contrary, it will benefit respondent nos. 5 and 6 (plaintiffs nos. 5 and 6), therefore, we have dispensed with the service of notice on respondents 5 and 7 and heard the appeal.2. the suit was filed.....
Judgment:

K.A. Swami, J.

1. This appeal by defendants 1 and 2 is preferred against the Judgment and decree dated 17-9-1987 passed by the learned Civil Judge, Bhadravathi in O.S.No. 69 of 1982. At the stage of admission, Respondents 1 to 4 and 6 have put in appearance through a Counsel. Respondents 5 and 7 are neither served nor represented. After hearing both the sides, we are of the view that the appeal can be disposed of at this stage as the modification of the decree agreed to by the plaintiffs 1 to 4 (respondents 1 to 4 in the appeal) does not affect the Appellants and Respondents 5, 6 and 7, On the contrary, it will benefit Respondent Nos. 5 and 6 (plaintiffs Nos. 5 and 6), therefore, we have dispensed with the service of notice on Respondents 5 and 7 and heard the appeal.

2. The suit was filed for partition and separate possession of 22/26th share in the suit properties mentioned in suit schedules 'A', 'B', 'C' and 'D', and mesne profits from the date of the suit till the date of the delivery of possession. The trial Court has decreed the suit in the following terms:

'In the result, the suit of the plaintiffs is hereby decreed with cost. Each plaintiffs 1 to 4 and defendant No. 1 and 3 are entitled to 1/6th share each in the suit 'A' and 'B' schedule landed house properties and Item No. 1 to 15 and 26 of Ex.P-33 inventory list of movables by metes and bounds by way of partition and separate possession. Plaintiffs 1 to 4, Defendant No. 1 and 3 each is entitled to 1/6th share in the sale proceeds in deposit in this Court also.

The partition of Plaint 'A' Schedule landed properties shall be effected by sending the decree to the Deputy Commissioner, Shimoga, as required under Section 54 C.P.C. The suit schedule 'B' properties and the moveables at Item No. l to 15 and 16 of inventory list Ex.P-33 shall be effected by appointing a Court Commissioner. Ex.P-33 inventory list shall be the part and parcel of the decree. Accordingly draw preliminary decree.'

3. The relationship between the parties is not in dispute. Defendant No. 1 who is appellant No. 1 in the appeal is the father of plaintiffs 1 to 6 and defendant No. 3 who are respondents 1 to 6 and respondent No. 7 respectively in the appeal. Defendant No. 1 also claims to be the husband of defendant No. 2 who is appellant No. 2 in the appeal.

4. The trial Court, on the basis of the pleadings framed the following issues:

'1. Whether the plaintiffs prove that plaint 'A' Schedule Item No. 2 is a joint family property and that they have got a share in that item?

2. Whether the plaintiffs prove that items 2 and 3 described in the plaint 'B' schedule have been acquired out of the joint family income and that they have got shares in these two items also?

3. Whether the 1st defendant proves that Item No. 2 of the plaint 'A' schedule and Items 2 and 3 of the plaint 'B' schedule are his self-acquired properties?

4. Whether the plaintiffs prove that the debts described in the plaint 'C' schedule are due to the joint family and that they have got a share in the same?

5. Whether the plaintiffs prove that all the moveables described in the plaint 'D' schedule are in existence that they are joint family properties and they have got shares in all those items?

6. Whether the share claimed by the plaintiffs is correct?

7. Whether the 1st defendant proves that the joint family has contracted debts set out in para 3 of his written statement and that the plaintiffs are liable to pay their share in those debts?

8. Whether the 1st defendant proves that his children got by the 2nd defendant are necessary parties and that the suit is bad for their non-joinder?

9. Whether the 1st defendant proves that the plaintiffs have sold paddy and areca nuts belonging to the joint family as alleged in para 7 of his written statement?

10. To what reliefs are the parties entitled?

The trial Court held that Item No. 2 of plaint 'A' schedule and Items 2 and 3 of plaint 'B' schedule were joint family properties as the same had been acquired out of the joint family income; that the 1st defendant failed to prove that Item No. 2 of plaint 'A' Schedule property and Items 2 and 3 of plaint 'B' Schedule properties were his self-acquired properties; that the plaintiffs failed to prove that the debts described in plaint 'C' schedule were due to the joint family and as such, they were entitled to get share in them; that the plaintiffs failed to prove that all the moveables described in plaint 'D' schedule were in existence; that only Item Nos. 1 to 15 and 26 entered in the inventory Ex.P-33 were available for partition. The plaintiffs 1 to 4 and defendants 1 and 3 were declared to be entitled to 1/6th share each in the suit properties as mentioned in the operative portion of the Judgment. The trial Court also further held that the 1st defendant failed to prove that he contracted the debts as mentioned in paragraph 3 of his written statement for the purpose of joint family and as such, the members of the joint family were liable to discharge the same; that the 1st defendant failed to prove that the children begotten by him through the 2nd defendant (2nd appellant) were necessary parties to the suit; that the 1st defendant failed to prove that the plaintiffs sold the paddy and arecanut belonging to the joint family as alleged by him in para 7 of his written statement. In the light of the aforesaid findings, the trial Court passed a preliminary decree in the aforesaid terms as reproduced above.

5. In this appeal, Sri Krishna Bhat, learned Counsel appearing for the appellants has challenged the correctness of the findings recorded on Issues 1 to 3 and also the finding on Issue No. 8. On the contrary, Sri T.S. Ramachandra, learned Counsel appearing for the plaintiffs-respondents except plaintiff No. 5 supports the findings recorded by the trial Court on those issues.

6. In the light of the contentions raised on both the sides, the following points arise for consideration:

1) Whether the trial Court is justified in holding that Item No. 2 in Schedule 'A' and Items 2 and 3 in Schedule 'B' were the joint family properties?

2) Whether the trial Court is justified in holding that the marriage of the 2nd defendant (2nd appellant) with 1st defendant (1st appellant) was null and void and therefore, the issues born out of such wed-lock are not entitled to a share in the coparcenaries properties viz., the suit properties in respect of which the decree is passed and as such they are not necessary parties to the suit?

3) Whether the trial Court is right in not awarding a share to plaintiffs 5 and 6?

POINT NO. 1

7. in this case, it is not in dispute that the 1st defendant (1st appellant) was the Manager of the joint family being the father of the plaintiffs and defendant No. 3. The joint family possessed vast properties capable of yielding considerable Income. The defendant No. 1 got 24 acres of land in a partition of the joint family properties between him and h is two brothers on 29-9-1972 under a registered Partition Deed. There is no acceptable evidence adduced by the 1st defendant to prove that he had an independent source of income and from that income, he purchased the properties described at Item No. 2 in 'A' Schedule and Items 2 and 3 in 'B' schedule. In the absence of such evidence, the trial Court on the basis of the evidence on record has held that the joint family possessed sufficient nucleus capable of yielding sufficient income and the 1st defendant has failed to prove that Item No. 2 in 'A' Schedule and items 2 and 3 in 'B' Schedule were his self-acquired properties. The trial Court has specifically held that these three properties are also joint family properties. From the evidence on record, nothing is brought to our notice which can be said to affect the decision of the trial Court on Issues Nos. 1 to 3. The Plaint 'A' and 'B' Schedules contain several properties consisting of both agricultural lands and house properties which were admittedly the joint family properties except Item No. 2 in plaint 'A' Schedule and Items 2 and 3 in plaint 'B' Schedule. As far as Item No. 2 in plaint Schedule 'A' is concerned, it is proved to be one of the properties of the joint family because under the Deed of Partition - Ex.P-24 - the joint family properties were divided between the 1st defendant and his brothers and in that partition, Item No. 2 was allotted to the share of the 1st defendant. As far as Items 2 and 3 of the 'B' Schedule are concerned, defendant No. 1 claimed that these two sites were purchased by him in the year 1956 and 1957 from one Basamma w/o Puttappa and one Basappa respectively under Ex.D-6 and D-7. The 1st defendant also further stated that he purchased Item No. 2 in 'B' Schedule on 18-6-1978 under Ex.D-8, a registered Sale Deed from one Siddappa and thereafter he constructed a house on each of the sites described in Items 2 and 3 of 'B' Schedule. The 1st defendant got vast extent of the property under a partition between himself and his two brothers on 29-9-1972. Being the father, he was the kartha of the family. There is no evidence adduced in the case to show that apart from vast extent of properties which he got in the partition, he had any other independent source of income. However, he tried to show that he had cultivated an extent of 35 acres for six years as a tenant, from 1958-59 to 1961-62, of the land belonging to one Chandrappa. That case has not been accepted by the trial Court because the 1st defendant did not file any Form No. 7 under the Karnataka Land Reforms Act and obtain occupancy right. If really the 1st defendant was a tenant of an extent of 35 acres belonging to one Chandrappa in his own individual capacity having regard to the provisions contained in the Mysore Tenancy Act which held the field in the old Mysore area until the Karnataka Land Reforms Act, 1961 came into force on 2-10-1965, he could not have been dispossessed from the said lands and as such he would have become entitled to occupancy right under the Karnataka Land Reforms Act. In addition to this, in his written statement, it was not the case pleaded by the 1st defendant but he only asserted in his evidence to this effect. Therefore, the trial Court has rightly rejected the plea of the 1st defendant that he cultivated an extent of 35 acres of land as a tenant exclusively and out of the income he derived therefrom, he purchased Item No. 2 in 'A' Schedule and Item Nos.2 and 3 in 'B' Schedule. It is relevant to notice that Exs.D-5 to D-8 also did not disclose that the properties covered under those documents were the self-acquired properties of the 1st defendant and the same were acquired out of his exclusive income. The 1st defendant was the manager of the joint family which possessed vast properties capable of yielding sufficient income. In the absence of any independent source of income by the 1st defendant and in the absence of positive proof of the fact that item No. 2 of 'A' Schedule property and Items 2 and 3 of 'B' Schedule properties were the self-acquisitions of the 1st defendant, the conclusion arrived at by the trial Court that Item Nos. 2 and 3 of 'B' Schedule properties were the joint family properties and they were not the self-acquisitions of the 1st defendant is proper on the evidence on record. As far as Item No. 2 of 'A' Schedule, is concerned it has already been pointed out that it was one of the properties which was allotted to the share of the 1st defendant, under Ex.P-24.

8. For the reasons stated above, we are satisfied that the trial Court is justified in holding that Item No. 2 in Schedule 'A' and Item Nos. 2 and 3 in Schedule 'B' were the joint family properties. Point No. 1 is answered accordingly.

POINT NO. 2

9. Sri Krishna Bhat, learned Counsel for the appellants submitted that even though the marriage of the 1st defendant with the 2nd defendant had taken place in 1967 after the coming into force of the Hindu Marriage Act and as per the amendment effected to Section 16 of the Hindu Marriage Act (hereinafter referred to as the 'Act'), by the Marriage Laws (Amendment) Act, 1976 (Central Act 68 of 1976), even if the marriage of the 2nd defendant with the 1st defendant is held to be null and void, the issues born out of such wed-lock are legitimate issues and are entitled to a share in the property of the joint family of which the 1st defendant is a member. In support of this submission, learned Counsel has placed reliance on a decision of the High Court of Madras in MARGABANDHU AND ANR. v. KOTHANDARAMA MANDHIRI AND ORS 1983(2) Madras Law Journal 445. On the contrary, it is submitted by Sri T.S. Ramachandra, learned Counsel for the respondents 1 to 4 and 6 that the decision in Margabandhu's case has not noticed the specific words contained in Sub-section (3) of Section 16 of the Act which are to the effect that no rights are conferred upon any child born out of a marriage which is null and void or which is annulled under Section 12 of the Act in or to the property of any person other than the parents. Therefore, it is contended that no right is conferred upon such child, in the coparcenary property in as much as coparcenary property cannot be held to be the exclusive property of the parents until the partition takes place between them and the legitimate sons and a particular specific property of the joint family is allotted to their share. Learned Counsel, however, submitted that they are entitled to a share only in the separate and self-acquired property of their parents and not in the coparcenary property. In support of this submission, learned Counsel has placed reliance on a Division Bench decision of the High Court of Bombay in SHANTARAM TUKARAM PATIL AND ANR. v. SMT. DAGUBAI TUKARAM PATIL AND ORS.

10. The facts necessary to decide this point are no more in dispute. The marriage of the 2nd defendant with the 1st defendant took place in the year 1963 after the Act came into force and at the time of the marriage, the 1st wife of the 1st defendant was alive. Even to this day, the first wife of the 1st defendant viz., Smt. Puttamma is alive and she has been examined in the case as P.W.2, As per the provisions contained in Section 11 read with Section 5(i) of the Act, a marriage is null and void when either of the parties has a spouse living at the time of the marriage. In the instant case, the 1st wife of the 1st defendant was alive at the time of the marriage of the 2nd defendant with the 1st defendant, therefore, the marriage of the 2nd defendant with the 1st defendant was null and void.

11. The further question for consideration is whether the children of the 2nd defendant born out of such wed-lock with the 1st defendant are entitled to a share in the joint family properties. The trial Court on following the decision in Shantaram Tukaram Patil's case : AIR1987Bom182 , has held that the children of the 2nd defendant are not entitled to a, share in the coparcenary property, therefore, they are not necessary parties to the suit. In a suit for partition of the joint family properties, all the heads of the branches, females, who are entitled to a share on partition, the purchaser of the joint family property in case the alienation is challenged or such property is included in the suit, if the suit is brought by a purchaser from a coparcener, the coparcener who alienated, are proper parties. There are other persons who are proper parties to a suit for partition but it is not necessary to mention them because the children of defendant No. 1 begotten through defendant No. 2 do not fall in the category of proper parties. The question as to whether they are necessary parties to the suit depends upon the determination of the question as to whether they are entitled to a share in the coparcenary property.

12. The present Section 16 of the Act reads thus:

'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.'

The old Section 16 of the Act is substituted by the present Section 16. The old Section covered only such cases where a decree of nullity was granted in respect of any marriage under Section 11 or 12 of the Act declaring the marriage null and void or annulling the marriage by a decree of nullity and any child begotten or conceived before the decree was made was deemed to be a legitimate child of the parents notwithstanding a decree of nullity. The proviso thereto further provided that anything contained in Section 16 should not be construed as conferring upon any child of a marriage which was declared to be null and void or annulled by a decree of nullity, any right in or to the property of a person other than the parents. The wordings of old Section 16 led to an anomaly in as much as a marriage performed in contravention of any one of the conditions specified in Clauses (i), ((iv) and (v) of Section 5 of the Act shall be null and void IPSO JURE under Section 11 of the Act. A child begotten or conceived out such wed-lock would IPSO FACTO and IPSO JURE be an illegitimate child. Therefore, annulment of a marriage by way of a decree of nullity did not make any difference in law. However by reason of old Section 16 only such issues begotten or conceived before the decree of nullity was granted under Section 11 or Section 12 of the Act were deemed to be the legitimate children.

The High Court of Madras in TULASI AMMAL v. GOWRI AMMAL took a view that it was only when a decree of nullity wars granted in respect of any marriage under Section 11 or 12, that any child begotten or conceived before the decree was made could be deemed to be legitimate; but where no such decree was obtained, no part of the Section 16 could be invoked for the purpose of legitimating an issue born of a void 3. : AIR1964Mad118 marriage. Therefore, old Section 16 came to be substituted by the present Section 16.

13. Sub-section (1) of present Section 16 of the Act covers a marriage which is null and void under Section 11 of the Act and confers legitimacy on any child of such marriage 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 and whether or not the marriage is held to be void otherwise than on a petition under the Act. Sub-section (2) covers the cases where a decree of nullity is granted in respect of voidable marriage under Section 12. Legitimacy is conferred upon any child begotten or conceived before the decree of nullity is made. Sub-section (3) is similar to the proviso to old Section 16 of the Act.

14. Thus as far as 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 his 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 subsection (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.

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 the 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. In the case of a female child, she would have become a member of the joint family. In that event, the joint family was required to bear the expenses of her marriage. In case the partition were to take place between the father and sons, if she were to be unmarried then, she would be entitled to a share in the joint family property in the old Mysore area under Mysore Hindu Law Women's Rights Act, 1933 (Mysore Act 10/1933). 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 it 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. Thus the illegitimate child covered by Sub-section (1) or (2) of Section 16 of the Act, even on conferment of legitimacy, is not allowed by law to claim equal status under Hindu Law as that of a legitimate child. The law has created a fiction with limitation. 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 legal fiction created with certain limitations, naturally it has to live with those limitations just as a child born with incurable congenital defect has to live with it. The Parliament alone can remove the 11 initiation imposed on the right of a child on whom legitimacy is conferred under Section 16 of the Act. It is not open to a Court under the garb of interpretation of the statute to allow the legal fiction to cross the limitations with which it is created. The reason for the Parliament to restrict the right of a child born out of a void marriage covered by subsection (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. Under the Mithakshara Law, the coparcenary property may consist of ancestral property or of joint acquisitions or of property thrown into the common stock and accretions to such property. In a given joint family, coparcenary property may consist of one or the other or all the aforesaid types of properties. The coparcenary property belongs to all the co-parceners. No coparcener can claim that it is his exclusive property. Unity of ownership and unity of possession are the essence of a coparcenary property under the Mithakshara Law. So long as there is unity of possession and unity of ownership, no coparcener can say that a particular property belongs to him; he can say so only after a partition. To keep in tact and unaffected these essential concepts of Hindu Law, an illegitimate child born out of a void marriage on whom legitimacy is conferred under Sub-section (3) of Section 16 of the Act in the case of a female child, she is not treated in par with a legitimate female child and in the case of a male child, he has not been conferred with the status of a 'coparcener'; only a right is conferred upon him/her in or to the property of his/her parents.

14A. In Margabandhu and Anr. v. Kothandarama Mandhiri and Ors. Sub-section (3) of Section 16 was not considered. The Import of the words 'any rights in or to the property of any person, other than the parents' occurring in Sub-section (3) of Section 16 of the Act was not considered. The decision has proceeded on the basis of first portion of Sub-section (1) of Section 16 of the Act without 'noticing Sub-section (3). After quoting first portion of Sub-section (1) of Section 16 of the Act, it has been observed thus:

'This amendment clearly gives right even to illegitimate children even though the marriage might have been void or voidable. What is more, they will share equally with the legitimate children and there is no ambiguity about it at all. Nevertheless the learned Counsel for the appellants argued that respondents 2 and 3 born out of void marriage, are entitled only to a share of the father and they cannot claim equal shares with the legitimate sons. I regret this argument cannot be accepted in the face of the clear provision of the Act.'

The suit related to ancestral properties. In those properties, the Illegitimate sons were held to be entitled to shares what the legitimate sons were entitled to. In view of restricting the right of an illegitimate child on whom legitimacy is conferred by fiction of law under Sub-section (1) and (2) of Section 16 of the Act in or to the property of his/her parents, by Sub-section (3) of Section 16 of the Act, we find it difficult to accept the view expressed in Marga Bandhu's case as correct.

14B. In the preceding paragraphs, we have already pointed out that a coparcenary property cannot be held to be the exclusive property of any one of the coparceners. 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 Inteste. 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. Viewed in this background, conferment of legitimacy upon an Illegitimate child born out of a void marriage is not Intended to and does not, confer the status of a 'coparcener' but it is only intended to confer a right upon such child in or to the property of the parents and not in or to the property of any other person. If the Parliament intended to confer a right upon a child born out of a void marriage to have a share in the properties just like any other child born out of a valid marriage in the coparcenary properties, the wordings of Sub-section (3) of Section 16 of the Act would have been quite different and in fact in such an event, there was no necessity to restrict the right of a child born out of a void marriage in or to the property of his parents. In such a case, Sub-section (3) of Section 16 of the Act itself would not have been necessary. 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. !t 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.

15. Similar question arose in Shantaram Tukaram Patil and Anr. v. Smt. Dagubai Tukaram Patil and Ors. Jahagirdar J, speaking for the Bench, after considering the earlier decisions of the same High Court and also the decisions of the Supreme Court having a bearing on the Rules of interpretation, summarised the propositions in para 27 of the Judgment as follows:

'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 Raghunath v. Nana (1985) 87 Bom.LR 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 with the provisions of Section 8 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 lifetime and ceases if she remarries.'

16. The aforesaid propositions 1 to 3 made under the 1st Heading in regard to a child of a void marriage accords with the view expressed by us in the preceding paragraphs. In the instant case, it is not necessary for us to consider the other propositions laid down in the aforesaid decision because those questions do not arise for our consideration. The questions as to whether the children of defendants 1 and 2 born out of a void marriage are entitled to succeed to the property that may be allotted to the 1st defendant pursuant to the decree passed by the trial Court, and whether such property in the hands of the 1st defendant ceases to be a coparcenary or joint family property need not be gone into in this appeal as these questions do not arise now in this case and these questions can be decided only in the presence of the children of defendant No. 1 begotten through defendant No. 2 out of void marriage.

17. From the aforesaid discussion, it emerges that the children of defendant-1 begotten through defen-dant-2 cannot be considered to be necessary parties to the suit as the suit properties in respect of which a decree is passed by the trial Court are not the exclusive properties of the 1st defendant and the same are the properties of the joint family as held by the trial Court with which we are in complete agreement in which they cannot claim a share as coparceners. Accordingly Point No. 2 is answered in the affirmative.

POINT NO. 3

18. No doubt the plaintiffs 5 and 6 have not come up in appeal. They are respondents 5 and 6 in this appeal. Respondent No. 6 4s represented by a Counsel whereas respondent No. 5 is unrepresented. They are unmarried daughters of the 1st defendant and sisters of plaintiffs 1 to 5 and defendant No. 3. Irrespective of the fact that they have not come up in appeal, the suit being the one for partition and separate possession, having regard to the provisions contained in Rule 33 of Order 41 of the C.P. Code, it is a duty of the Court to grant relief to them if, in law, they are entitled to a share in the suit properties.

19. The trial Court failed to take into consideration the provisions contained in Section 8 of the Mysore Hindu Law Women's Rights Act, 1933 (Mysore Act 10/1933) which governs the old Mysore area. As per the provisions of Section 8(1)(a) of Mysore Act No. 10/1933, at a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his pre-deceased undivided sons and brothers who have left no male issue shall be entitled to share with them. The present suit is a suit for partition between the father and his sons. Plaintiffs 5 and 6 are the daughters of defendant-1 and sisters of plaintiffs 1 to 4. They were unmarried on the date of the suit. Therefore, they are entitled to a share in the joint family properties. Sub-section (2) of Section 8 of the Mysore Act 10/1933 quantifies their share. Each of the plaintiffs 5 and 6 is entitled to 1/4th of what her brother is entitled to. In the present case, each of the brothers of plaintiffs 5 and 6 is entitled to 1/6th share, Consequently respondents 5 and 6 are entitled to 1/24th share each. In view of this, it would have become necessary to issue notice to the 3rd defendant. But plaintiffs 1 to 4 and 6 have filed a Memo dated 12-1-1988 Which reads thus;

'Respondents No. 1 to 4 submit that out of the properties allotted towards the share of the plaintiffs 1 to 4 (respondents 1 to 4 in the appeal), respondents 1 to 4 will give to Respondents 5 and 6 who are the daughters of the 1st appellant, (1st defendant before the trial Court), their 1/12th share to which they are together legitimately entitled under Section 8 of the Hindu Law Women's Rights Act, 1933. Under the said Act, each of them is entitled to 1/24th share.

The trial Court has not awarded any share in the properties in their favour. Respondents 1 to 4 have no objection for declaring their rights in the properties allotted to the share of respondents No. 1 to 4.'

In the aforesaid memo, plaintiffs 1 to 4 have agreed to provide 1/24th share to each of the plaintiffs 5 and 6 in the share allotted to them i.e., plaintiffs 1 to 4. In view of this, it is not necessary to Issue notice to the 3rd defendant who is respondent-7 in the appeal and also to plaintiff-5 who is respondent-5 in the appeal in as much as defendant-3 (respondent-7) is not affected by the modification of the decree passed by the trial Court in the aforesaid terms and respondents 5 and 6 are going to be benefited even though they have not preferred any appeal.

20. For the reasons stated above, we hold that plaintiffs 5 and 6 are entitled to 1/24th share each and that share has to be carved out of the shares allotted to plaintiffs 1 to 4. Point No. 3 is answered accordingly and in the negative.

21. For the reasons stated above, the decree of the trial Court is confirmed subject to the modification that in the shares allotted to plaintiffs 1 to 4, 1/12th share of plaintiffs 5 and 6 together or 1/24th share to each of them be carved out and allotted to plaintiffs 5 and 6.

22. In the result, the appeal is dismissed subject to the aforesaid modification.