Chikkamma and Others Vs. N. Suresh and Others - Court Judgment

1. This first appeal is filed under Section 96 of the CPC by the defendants 1 to 3 in O.S. No. 131 of 1988 on the file of the learned Principal Civil Judge, Mandya, decreeing the suit filed by the plaintiff/1st respondent. The parties will be referred to as plaintiff and defendants in the course of this judgment.

2. The plaintiff sought for partition and separate possession of his share in the suit schedule properties contending that his father late Nanjegowda had three wives namely the 1st defendant-Chikkamma, the late Kempamma and the mother of the plaintiff Boramma who is the 5th defendant in the suit. The defendants 2 and 3 are the daughters of Nanjegowda through the 1st defendant-Chikkamma. The defendant 4-Bhagyamma is the daughter of late Nanjegowda through his second wife the late Kempamma and defendant 6 is the sister of the plaintiff and daughter of the 5th defendant. It is stated that the plaintiff was born on 14-5-1969 and that the plaintiff and defendants 1 to 6 are the members of a Hindu Joint Family and the suit Items 1 to 16 are the joint family properties of late Sri Nanjegowda and suit Items 17 and 18 are properties acquired out of the income of the joint family properties by late Nanjegowda as the kartha of the joint family. That the plaintiff and the defendants are in joint possession and enjoyment of the suit properties and that the plaintiff is the only male issue to late Nanjegowda who died on 7-1-1977 when the plaintiff was a minor. That the 1st defendant who is first wife of late Nanjegowda got her name entered in the revenue records and Municipal Registers in respect of the suit properties without the knowledge of the plaintiff and defendants 5 and 6. That the 1st defendant sold suit Items 17 and 18 to the defendants 7 and 8 which came to the knowledge of the plaintiff only after he attained the age of majority. That the plaintiff on coming to know that the 1st defendant was intending to alienate the suit properties, the plaintiff demanded his share which was refused and hence, the suit for partition and separate possession. The plaintiff has also contended that the alienation of suit Items 17 and 18 to defendants 7 and 8 are not binding on him.

3. The defendants 1 to 3 filed their written statements denying any relationship with the plaintiff and defendants 5 and 6. They also denied that the 5th defendant is the wife of late Nanjegowda and also deniedthat the plaintiff and the defendant 6 being the children of late Nanjegowda. The defendants 1 to 3 contended that it is only the 1st defendant who is the widow of late Nanjcgowda and only defendants 2 and 3 are the children of Nanjegowda. They stated that the late Nanjegowda never married late Kempamma or the 5th defendant-Boramma. They also denied the date of birth of the plaintiff and also denied that the suit properties are the joint family properties of the plaintiff and defendants 1 to 6.

4. The defendants 1 to 3 further contended that suit Items 1 to 15 are the ancestral properties of late Nanjegowda and suit Items 16 to 18 were acquired out of the income of the ancestral properties by the late Nanjegowda. It was further contended by them that the 1st defendant being the only widow of late Nanjegowda was enjoying all the suit properties with the assistance of her daughters-defendants 2 and 3. They admitted the sale of suit Items 17 and 18 to defendants 7 and 8 but contended that the plaintiff and defendants 4 to 6 cannot question her right to the suit properties to alienate them. It was also contended that suit Items 1 to 16 were also sold by defendants 1 to 3 in favour of one D. Mayanna under a registered sale deed dated 23-2-1988 for valuable consideration which the plaintiff and defendants 4 to 6 have no right to question. They stated that the late Nanjegowda, during his lifetime did not marry either late Kempamma or the 5th defendant-Boramma and contended that even if such marriage has taken place those marriages are void and invalid since Nanjegowda has no right to take a second or third wife in the lifetime of his legally wedded wife, the 1st defendant. It is also contended that the 1st defendant had challenged and questioned the act of Nanjegowda when he made an attempt to take a second wife and that theiv was a compromise under which late Nanjegowda had undertaken not to take a second wife particularly the 5th defendant. It was further contended that the plaintiff and the defendants 4 to 6 were never in possession of the suit properties at any time and that the plaintiff cannot enforce any kind of right to the suit schedule properties which are ancestral properties of deceased Nanjegowda. It was contended that the suit abated for non-joinder and misjoinder of necessary parties and they prayed for dismissal of the suit.

5. The defendant 8 filed his separate written statement denying the case of the plaintiff and also denied the relationship of plaintiff and defendants 4 to 6 with the late Nanjegowda. He also denied the date of birth of the plaintiff. He further denied that the 5th defendant-Boramma is the 3rd wife of Nanjegowda and contended that the plaintiff and the defendants 4 to 6 had no valid right to file the suit and seek their alleged right in the suit properties. According to defendant 8 he has secured a valid title to suit item 17 having secured the same under a registered sale deed dated 16-6-1983 from the true owners. The defendant 7 did not file any written statement.

6. The Trial Court framed the following issues:

(1) Whether the genealogical tree set out in para 2 of the plaint is true?

(2) Whether L. Nanjegowda had married late Kempamma and 5th defendant-Boramma?

(3) Whether the plaintiff is the son of late L. Nanjegowda?

(4) Whether the defendants 1 to 3 are the only legal representatives of deceased-L. Nanjegowda as contended by them?

(5) Whether the alienation of suit items 17 and 18 in favour of defendants 7 and 8 does not bind the share of the plaintiff in the suit properties?

(6) Whether the plaintiff is entitled to a share in the suit schedule properties, and if so what share?

(7) Whether the plaintiff is entitled to mesne profits from the date of suit till separation of his share?

(8) What decree or order?

In support of his case P.Ws. 1 to 3 were examined by the plaintiff and Ex. P. 1 to Ex. P. 51 were marked and D.Ws. 1 to 5 were examined on behalf of the defendants and Exs. D. 1 to D. 13 were marked. The Trial Court on appreciation of the evidence on record answered all the issues in favour of the plaintiff and decreed the suit declaring that the plaintiff was entitled to l/10th share in all the suit properties and also declared that the sale of suit Items 17 and 18 in favour of the defendants 8 and 7 respectively does not bind the share of the plaintiff and suit item 17 shall be considered for allotting to the share of defendants 1 to 3 during the course of final decree proceedings.

7. During the course of this appeal, appellant 3 died and she is represented by her L.Rs. Even though several grounds are made out in the grounds of appeal the only ground seriously urged by the learned Counsel appearing for the appellants is that the plaintiff being the illegitimate son of the deceased-Nanjegowda and defendants 5 and 6 being the second wife and her daughter the marriage of 5th defendant having held to be void, the plaintiff cannot claim any rights in the coparcenary property of the late Nanjegowda. According to the learned Counsel, the property in the hands of Nanjegowda are his coparcenary property and not his separate property and in a coparcenary property an illegitimate son and daughter and the second wife of a void marriage cannot claim any right. He has relied upon the Division Bench judgment of this Court in Patel Chandrappa v Hanumanthappa, S. Melagiriyappa and Others v Lalithamma, Smt. Sitabai and Another v Ramchandra and Gowli Buddanna v Commissioner of Income-tax, Mysore. On the other hand, the learned Counsel appearing for the plaintiff and defendants 5 and 6supporting the judgment of the Trial Court contended that the late Nanjegowda being the sole coparcener, the joint family property in his hands becomes his exclusive property and even an illegitimate son could seek his share as a matter of right in the said property especially in view of Section 16 of the Hindu Marriage Act, as amended by the Marriage Laws (Amendment) Act, 1976 (Central Act 68 of 1976).

8. As stated earlier the case of the plaintiff is that the late Nanjegowda had three wives viz., Chikkamma-1st defendant, the late Kempamma and the 5th defendant-Boramma who is the mother of the plaintiff. Defendants 2 and 3 are the children of the 1st defendant-Chikkamma. Defendant 4 is the daughter of Boramma and defendant 6 is the sister of the plaintiff. The plaintiffs case is that the plaintiffs and the defendants 1 to 6 are the members of the Hindu Joint Family and the suit properties are the joint family properties of late Nanjegowda and that they are in possession and enjoyment of the suit properties. The plaintiff has claimed his share in the suit properties. The defendants 1 to 3 have denied the relationship alleged by the plaintiff and contended that the plaintiff and the 6th defendant are not the children of late Nanjegowda and the 5th defendant was not his wife. The defendants 1 to 3 claim that it is the 1st defendant who is the only wife of late Nanjegowda and the defendants 2 and 3 are his only children. On the said pleadings the Trial Court framed the above extracted issues.

9. The Trial Court held that the 1st defendant being the widow of late Nanjegowda gets half share in the suit properties and the remaining half share is to be equally shared by the children of late L. Nanjegowda and the plaintiff, his sister and defendants 2 to 4 and 6 being the sons and daughters of late L. Nanjegowda will equally get the other half share in the suit properties and hence the plaintiff will get l/10th share. It directed an enquiry to be made regarding mesne profits in the final decree proceedings. It further held that the defendant 8 is a bona fide purchaser from defendants 1 to 3 for valuable consideration and directed the allotment of the properties sold in (Item 17 of suit schedule properties) to he allotted to the share of the defendants 1 to 3. As stated already the main contention of the appellants is that the plaintiff and the other defendants cannot claim any right in the suit schedule properties which are coparcenary properties. Not much argument was canvassed by the appellant as against the findings given by the Trial Court as to the relationship of the parties as pleaded by the plaintiff. Even otherwise on a reappreciation of the evidence on record, I find that the Trial Court has rightly held that the genealogy tree set out in the plaint has been proved by the plaintiff and he has also proved that the late Nanjegowda had married late Kempamma and the 5th defendant-Boramma and that the plaintiff is the son of late Nanjegowda through 5th defendant and defendant 4 is the daughter of late Nanjegowda through late Kempamma and defendant 6 is the daughter of late Nanjegowda through 5th defendant-Boramma. The Trial Court has also rightly held that the suit is in time. Therefore, the only question which was strongly argued by the appellants and which has to be considered is as to whether the suit properties which came to the hands of late Nanjegowdacould be held to be coparcenary properties not amenable to a claim by an illegitimate son or as to whether the properties could be held to be his own properties in which an illegitimate son could claim a share.

10. It is well-known that a coparcenary is not the same as a joint family. A coparcenary is a narrower body than a joint family and consists of only those persons who have present interest in the property and who can enforce a partition if they desire and the test of coparcenary is the right to enforce a partition, whereas a joint family includes not merely coparceners but their mothers, wives or widows and unmarried daughters. The existence of a group of family relatives none of whom is entitled to claim partition does not convert a joint family into a coparcenary.

11. The Hon'ble Supreme Court in N.V. Narendranath v Commissioner of Wealth Tax, Andhra Pradesh, has held that the Hindu coparcenary is much narrower body than the Hindu Joint Family. In Gowli Buddanna's case, supra, the Hon'ble Supreme Court has held that a Hindu Joint Family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being and therefore there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners.

12. In S. Melagiriyappa's case, supra, the Division Bench of this Court has held that a joint family property held by a single male coparcener does not lose its character of joint family property. In Shantaram Tukaram Patil v Smt. Dagubai Tukaram Patil, a Division Bench of the Bombay High Court on an analysis of Sections 8, 15 and 16 of the Hindu Marriage Act, has held that a child of a marriage which is void under the provisions of the Hindu Marriage Act whether a decree of nullity is passed or not, is a legitimate child and such a child does not acquire right to property which a legitimate child would, but the legitimacy confers upon him a right to property of his parents, and the property to which such a child can lay claim must be a separate property of the parents and not the coparcenary property in which the parents has a share. It was further held that, since no child whether legitimate or otherwise, acquires right by birth in the separate property of its parents, a child of a void marriage can only succeed to the property of its parents in accordance with the provisions of Section 8 or Section 15 of the Hindu Succession Act. That, a child of a void marriage is related to its parents within the meaning of Section 3(1)(j) of the Hindu Succession Act because of the provisions of Section 16 of the Hindu Marriage Act. Another Division Bench of this Court in Patel Chandrappa's case, supra, has heldthat an illegitimate child cannot claim a share in the coparcenary property of his father.

13. In the present case, there is no dispute that the plaintiff is an illegitimate son of Sri Nanjegowda, and the suit properties are coparcenary properties which were in the hands of late Nanjegowda, the sole coparcener who died. The question to be considered is whether the coparcenary property in the hands of a single coparcener who is no more could be said to be the separate property of the late Nanjegowda for the purpose of Section 16(3) of the Hindu Marriage Act.

14. Section 16 of the Hindu Marriage Act reads as follows:

'Section 16.--(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 (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 into 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 possession or acquiring any such rights by reason of his not being the legitimate child of his parents'.

15. In general law, a legitimate child is one born in lawful wedlock. Sub-sections (1) and (2) of the above section makes it abundantly clear that, even in cases of a marriage void or voidable under the Act, the children born of in such marriage have the status of legitimate children. Such children will be regarded in law as legitimate children of the parents for all purposes, including succession. But, as laid down by the provisions, such a children cannot by relying on the status conferred on them by sub-sections (1) and (2) claim any right in or to the property of any person other than the parents. In Mulla's Hindu Law, 16th Edition, Page 294 which is Chapter 4 dealing with the alienation of coparcenary property (Note 257) reads as follows:

'Alienation by sole surviving coparcener.--(1) A person who for the time being is a sole surviving coparcener is entitled to dispose of the coparcenary property, as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make gift of it'.

16. The Hon'ble Justice Chinnappa Reddy, as he then was in Ganta Appalanaidu v Ganta Narayanamma, has held that there cannot be a coparcenary consisting of a single individual even if the property, in his possession is coparcenary property. His Lordship in the said judgment, has distinguished the coparcenary from a joint family and held that a coparcenary is not the same thing as a joint family. That a coparcenary is narrower body than a joint family and consists of only those persons who have a personal interest in the property and who can enforce a partition if they desire. The test of coparcenary is the right to enforce a partition and on the other hand a joint family includes not merely coparceners, but their mothers, wives or widows and unmarried daughters.

17. In Smt. Sitabai's case, supra, the three Judge Bench of the Hon'ble Supreme Court was considering the question as to whether the Trial Court was right in holding that the second plaintiff, at the time of his adoption by the first plaintiff did not become a coparcener in the joint family properties. The facts in the said case were that after the death of one Bhagirath, Dulichand became the sole surviving coparcener of the joint family and at that time, when the second plaintiff-Suresh Chandra was adopted the joint family still continued to exist and whether the disputed properties retained their character of coparcenary properties. Though the Supreme Court has held that under the Hindu System of Law, a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to be belonging to a joint family, merely because, the family is represented by a single coparcener, but possess rights which an absolute owner of property may possess. That the property which was a joint family property of the undivided Hindu Family does not cease to be so, because of the temporary reduction of the coparcenary to a single individual and the character of the property remains the same and it is only by analysing the nature of the rights of the members of the undivided family, but those indeed and those yet to be born, that it can be determined whether the family property can be properly described as a joint property of the undivided family. It was further held that where the Hindu Undivided Family consisting of two brothers, on the death of one of the brothers, the joint family property continues to retain its character as joint family property in the hands of the surviving brother, when the widow of the deceased brother continues to enjoy the right of maintenance out of the joint family properties.

18. The Hon'ble Supreme Court in Sawan Ram v Mst. Kalawanti and Others, has held that the joint family property does not cease to be the joint family property when it passes to the hands of a sole surviving coparcener and that, if a son is born to the sole surviving coparcener, those properties became the joint family properties in his hands and in the hands of his son and the only difference between the right of a Manager of a Joint Hindu Family over the joint family properties when there are two or more coparceners and the right of sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, but the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains the sole surviving coparcener. That the coparcener may sell or mortgage the coparcenary property, even though there is no legal necessity or family benefits or may even make gift of the coparcenary property. It was further held that if a son even subsequently born to or adopted by the sole surviving coparcener of a new coparcener, is inducted into the family on adoption made by the widow of the deceased coparcener, the alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by an adoption, mortgage or gift would however stand, for a coparcener, who is born or adopted after the alienation cannot object to alienations made before he was born or adopted.

19. Thus, the legal position is that the sole surviving coparcener can dispose of the coparcenary property in his hands as if it were his separate property as long as he remains the sole surviving coparcener, and any alienations made before a son is born or adopted by the sole surviving coparcener, the alienation remains unaffected and the same cannot be objected to or challenged by the subsequently born or adopted coparcener.

20. Several amendments were introduced to the Hindu Marriage Act and the Hindu Succession Act which belong to a family of laws relating to the same subject. The intention of the Parliament to legislate in respect of the several matters which would have been otherwise the subject of a Hindu Code is manifest in the fact that within a short time one after another different statutes were enacted which deal with the personal law of the Hindus such as marriage, children, rights of the children and other members of the family. It is therefore, perfectly legitimate to import the meaning of legitimacy contained in Section 16 of the Hindu Marriage Act into the provisions of the Hindu Succession Act especially when under the Hindu Succession Act there is no exclusion of such legitimacy while interpreting the provisions of the Act. It must therefore be held that children born of a void marriage and who are regarded as legitimate by virtue of the provisions of Section 16 of the Hindu Marriage Act are entitled to the rights conferred upon them by Section 16(3) of the Hindu Marriage Act.

21. Thus under Section 16(1) of the Hindu Marriage Act as substituted by Act 68 of 1976 a child of a marriage which is void under the provisions of the said Act, whether a decree for nullity is passed or not, is a legitimate child but such a child cannot acquire right to property which a child of a valid marriage would, but the legitimacy confers upon him right to property of his parents under Section 16(3) of the said Act. The property to which such a child can claim inheritance must be the exclusive property of the parents and such a child cannot claim any right in the coparcenary property in which his father has a share. Since no child whether legitimate or otherwise acquires right by birth in theseparate property of its father or mother, a child of a void marriage can only succeed to the property of its parents in accordance with the provision of Section 8 or Section 15 of the Hindu Succession Act. But when at the time of the death of the father of a child of a void marriage, the father was the sole coparcener who could have dealt with the property as his own in any manner he liked subject to the rights of the female members of the joint family, the coparcenary property in the possession of such a sole coparcener should be held to be the separate or exclusive property of the sole coparcener who is the father of the child of a void marriage for the purpose of Section 16(3) of the Hindu Marriage Act.

22. The Trial Court has decreed the suit and since no appeal is filed questioning the declaration of shares of each of the plaintiff and defendants the same is not reconsidered by me. The plaintiff is satisfied with the decree passed by the Trial Court. In view of the position of law on the question of inheritance by a child of void marriage, the conclusion arrived at by the Trial Court granting the shares in the properties of the deceased-Nanjegowda does not call for any interference. The appeal is therefore, dismissed. Considering the close relationship of the parties they are directed to bear their own costs throughout.