2008(4) ALL MR 561
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Govind S/O. Manohar Jadhav & Ors.Vs.Smt. Rukhminibai W/O. Manohar Jadhav & Anr.

Second Appeal No. 895 of 2006

21st April, 2008

Petitioner Counsel: Shri. S. M. VIBHUTE
Respondent Counsel: Shri. V. C. SOLSHE,Shri. AMIT DESHPANDE

(A) Hindu Marriage Act (1955), Ss.11, 5(1), 16 - Legitimacy of children of void and voidable marriage - Appellant No.3, second wife of deceased - Marriage of appellant No.3 with deceased taken place after Hindu Marriage Act, 1955 came into force and when the first marriage of deceased was still subsisting - Her marriage with deceased being void, she is not entitled to any share in the property of deceased - However, her sons from deceased would be treated as legitimate sons of deceased for the purpose of inheriting separate property of deceased. AIR 1986 SC 1753 and AIR 1987 Bom. 182 - Ref. to. (Paras 7, 9, 13)

(B) Hindu Law - Partition - Share of mother - Mother has equal share with son in partition between sons and not in partition of son's share between his children and widow. (Para 14)

(C) Hindu Law - Partition - Right of wife - A wife cannot herself demand partition - If a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son - Held, it does not appear that in absence of any child male or female wife automatically becomes sharer in the property of her husband during his life time. (Para 15)

Cases Cited:
Shantaram Tukaram Patil Vs. Smt. Dagubai Tukaram Patil, AIR 1987 Bom. 182 [Para 11]
Commissioner of Wealth-tax, Kanpur Vs. Chander Sen, AIR 1986 SC 1753 [Para 12]


JUDGMENT

JUDGMENT :- This is an appeal preferred by original plaintiffs being aggrieved by the dismissal of their original suit bearing Regular Civil Suit No.210 of 2004 decided by learned Civil Judge, Senior Division, Nilanga on 29.06.2005, as confirmed in Regular Civil Appeal No.65 of 2005 by the District Judge - I, Nilanga on 12th September, 2006. The appellant No.1 & 2 want shares in the property of their father Manohar.

2. Briefly stated facts giving rise to this appeal may be stated as below:-

Admittedly, Manohar Jadhav married respondent No.1 Rukminibai. When the said marriage was subsisting, he married appellant No.3 - Popatbai. Appellant No.4 - Muktabai is admittedly mother of Manohar. Appellant Nos.1 and 2 were born to appellant No.3 from Manohar Jadhav. Respondent No.2 - Sundarabai is the person who purchased some property from respondent No.1 pending the suit.

3. Both Courts held that the suit property excluding Survey No.13 was ancestral property of Manohar and in partition between Manohar and his two brothers, the suit property other than Survey No.13 was allotted to the share of Manohar Jadhav. The partition between Manohar and his brothers had taken in the year 1984. Manohar died in 1986. Manohar has no son or daughter from his first wife respondent No.1-Rukminibai.

4. Respondent No.1-Rukminibai filed Regular Civil Suit No.94 of 2003 against present appellant Nos.1 to 3 for partition, but she did not include Survey No.13 of village Bamni and therefore, appellants filed Regular Civil Suit No.210 of 1994 for partition and separate possession against respondent No.1 and included Survey No.13, and other properties which were subject matter of Regular Civil Suit No.94 of 2003. Subsequently, respondent No.2 is added as she had purchased said property Survey No.13 for consideration of Rs.1,87,000/-. The Trial Court so also the Appellate Court held that Survey No.13 admeasuring 81 R of village Bamni was not joint family property, but it was exclusive property of respondent No.1 and as such is not liable for partition and in the circumstances, the partition was directed of remaining land between appellant No.4 and respondent No.1 only.

5. Being aggrieved by the said decision, present appellants preferred Regular Civil Appeal No.65 of 2005 in the Court of Additional District Judge, Nilanga (as he was then designated). The Additional District Judge dismissed Regular Civil Appeal No.65 of 2005 filed against judgment and decree passed in Regular Civil Suit No.210 of 2004 and confirmed the decree passed in Regular Civil Suit No.210 of 2004 whereby in the properties other than Survey No.13, 1/2 share of each of appellant No.4 and respondent No.1 was recognized and partition was ordered. This appeal is directed against the dismissal of Regular Civil Appeal No.65 of 2005 whereby the decree in Regular Civil Suit No. 210 of 2004 is confirmed. So, I refer to the facts relating to Regular Civil Suit No.94 of 2003 and Regular Civil Appeal No.65 of 2005. It may be noted that in Regular Civil Suit No.94 of 2003 present appellant No.1 - Muktabai was not made party, and therefore it was dismissed for non-joinder of necessary party.

6. The substantial question of law framed by this Court while admitting this appeal on 12.10.2007 is as follows:-

"Whether in the facts and circumstances of the present case, the property received by deceased Manohar Jadhav during the course of family partition became his separate property and, therefore, the illegitimate children were entitled to inherit shares in view of Section 16(3) of the Hindu Marriage Act, whereby, their status is nationally elevated to that of a legitimate children and hence, the finding rendered by the Courts below on this issue is perverse and contrary to the settled legal position?"

7. It is no more disputed before me that appellant No.3-Popatbai is second wife of deceased Manohar. Admittedly, her marriage with Manohar had taken place after Hindu Marriage Act, 1955 came into force and when marriage of Manohar with respondent No.1-Rukminibai was subsisting and as such marriage of respondent No.3 with Manohar is void under Section 5(i) of the Hindu Marriage Act. In the circumstances, appellant No.3-Popatbai is not entitled to any share in the property of Manohar Jadhav, since her marriage with Manohar is void under Section 11 of the Hindu Marriage Act.

8. So far as appellant No.1 and 2 are concerned, Section 16 of the Hindu Marriage Act, 1955 is as follows:-

"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 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) 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 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 possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

9. So, appellant No.1 and 2 would be treated as legitimate sons of Manohar Jadhav for the purpose of inheriting separate property of Manohar Jadhav. Learned Advocate Shri. Vibhute appearing for the appellants argued that result of Section 16 of the Hindu Marriage Act, 1955 relating to legitimacy of children of void or voidable marriage is that sons and daughters born out of void or voidable marriage are deemed to be children born in lawful wedlock. He referred to definition of "Separate Property" given in Section 228 of the Principles of Hindu Law (Volume I, 20th Edition). Sub-Section 6 is to the effect that whenever there is partition and a coparcener obtains a share on partition and if he has no (legitimate) issue, the property allotted to him on partition will partake the nature of separate property. He also pointed out that as per Section 215 of the above said commentary, females cannot be coparceners. So, Manohar was sole coparcerner in possession of his share in the property after partition in 1984 between him and his brothers.

10. Learned Advocate has relied upon page 328 of Maynes Hindu Law and Usages, (15th Edition) for proposition that when at the time of 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 right 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, 1955.

11. So far as respondent Nos.1 and 2 are concerned, they are entitled to share in the property left behind by Manohar Jadhav. I rely on the case of Shantaram Tukaram Patil and another Vs. Smt. Dagubai Tukaram Patil and others, AIR 1987 BOMBAY 182. In para 23 and 24, following observations are made by the Division Bench.

"23............................ It is, therefore, perfectly legitimate to import the meaning of legitimacy contained in S.16, Hindu Marriage Act, into the provisions of the Hindu Succession Act; especially when in the latter Act there is no exclusion of such legitimacy while interpreting the provisions of the Hindu Succession Act. We must, therefore, hold that children born of a void marriage and who are regarded as legitimate by virtue of the provisions contained in S.16, Hindu Marriage Act, are entitled to the rights conferred upon them by S.16(3) irrespective of the apparent restricted definition of S.3(1)(j), Hindu Succession Act.

24. ...............After examining the provisions of both the Hindu Marriage Act and the Hindu Succession act, we have held above that the children of a void marriage have been given a right to the property of their parents. Since no child acquires a right in the property of its parents by birth, these rights can be exercised only by way of succession to the property. For that purpose they are to be treated as heirs in Class I of the Schedule to the Hindu Succession Act and they are entitled to succeed in accordance with the provisions contained in S.8, Hindu Succession Act."

In that case following conclusions are drawn in para 27.

"27. We now summarise the propositions of law emerging from the discussion made above:-

I. 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 (S.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 (S.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 Vs. 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 S.8 or S.15, Hindu Succession Act;

(5) A child of a void marriage is related to its parent within the meaning of S.3(1)(j), Hindu Succession Act because of the provisions of S.16, Hindu Marriage Act; proviso to S.3(1)(j) must be confined to those children who are not clothed with legitimacy under S.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 S.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."

12. On the other hand, learned Advocate for the respondent Shri. Solshe has relied upon a case of Commissioner of Wealth-tax, Kanpur, etc. Vs. Chander Sen etc. AIR 1986 S.C. 1753. In that case after partition between father and son, father continued with his business. After death of father certain amount was found to the credit of son who had already separated. It was held that such sum received by son after partition from his father, is his separate individual income i.e. separate property. In para 20 of that case, necessary discussion is there.

13. Considering the law laid down, I am of the opinion that appellant Nos.1 and 2 are entitled to share in the property of their father Manohar Jadhav, though appellant No.3 - second wife has no such right.

14. At the time of argument it is argued that appellant No.4 Muktabai will have 1/2 share and remaining 1/2 share will be of Manohar which alone will be available for partition between sons, first wife and mother. It is not possible to agree with this proposition. Mother has equal share with son in partition between sons; and not in partition of sons share between his children and widow. In 1984 there was partition between Manohar and his brothers. Appellant No.4 Muktabai could have claimed share equal to share of her son in that partition of 1984. She cannot claim 1/2 share in the property of Manohar.

15. As per Section 314 of the Principles of Hindu Law by Mulla, Volume I, Twentieth Edition, a wife cannot herself demand partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son. It does not appear that in absence of any child, male or female, wife automatically becomes sharer in the property of husband during his life time. So, it cannot be said that first wife-respondent No.1 Rukminibai has more than 1/4 share in the property of Manohar. Case would have been different had respondent No.1-Rukminibai had a son, in that case such son would have been coparcener and such son, Rukminibai and Manohar each would have 1/3rd share and property available for partition amongst heirs would have been 1/3 share. So, the entire property of Manohar (which does not include Survey No.13 as it is held to be separate property of respondent No.1) would be available for partition. In said property, appellant Nos.1, 2, 4 and respondent No.1 will have equal share.

16. In the result the Second Appeal is partly allowed. The judgments and decrees of both Trial Court and Appellate Court are set aside. It is held that appellant No.1,2,4 and respondent No.1 are each entitled to 1/4th share in the property of Manohar i.e. Grampanchayat House No.35 and agricultural lands other than Survey No.13 of village Bamni. The partition of Grampanchayat House No.35 may be effected by appointment of a Court Commissioner. The Collector or gazetted subordinate deputed on his behalf shall effect partition of agricultural lands between appellant Nos.1, 2, 4 and respondent No.1 as per provisions of Section 54 of Civil Procedure Code. It is made clear that Survey No.13 of Bamni is not liable for partition as it was separate property of respondent No.1-Rukminibai and not of Manohar. Parties to bear their own costs. Preliminary decree be drawn up accordingly.

Second appeal partly allowed.