Top Court passes preliminary decree of partition in favour of children born from void/voidable marriage, says they are entitled to share in father’s property
Justices M.M.Sundresh and S.V.N. Bhatti [19-01-2024]

Read Order:  RAJA GOUNDER AND OTHERS v. M. SENGODAN AND OTHERS (SC- CIVIL APPEAL NO. 600 OF 2024)

Tulip Kanth

New Delhi, January 22, 2024: The Supreme Court has held that once the status of the children is established as extended family of the propositus, irrespective of whether the marriages were void or voidable, denying such children a share in the notional partitioned property of their father is unsustainable in law.

Respondent Nos. 1 and 2 in this Civil Appeal were the Plaintiffs in a suit of 1985 before the Trial Court filed for partition and separate possession of plaint schedule properties. The plaint schedule consisted of three items of agricultural land. Muthusamy Gounder was the propositus of the parties to the suit and the claim for partition arose on his demise in the year 1982. The plaint averments were that Respondent No. 1 was son of the propositus through Respondent No. 2/Ramayee and Respondent No. 3 also the son of the propositus through Respondent No. 4/Ammasi Ammal.

The marriage of Respondent No. 2 with the propositus was alleged to have happened in the early 1950s. It was averred in the plaint that Respondent Nos. 1 to 4 lived together and had a common kitchen during the lifetime of Muthusamy Gounder. Respondent Nos. 1 and 2 claimed that a coparcenary/joint Hindu family existed, and Respondent Nos. 1 to 3 inherited the plaint schedule properties which were treated as joint family/ancestral properties. The demand of Respondent Nos. 1 and 2 through legal notice did not result in a reply from Respondent Nos. 3 and 4, or result in partition, the suit for partition of plaint schedule into three equal shares was filed and allot to Respondent Nos. 1 and 3, each one such share. The other share notionally allotted to Muthusamy Gounder, and since he died in 1982, was divided and allotted to Respondent Nos. 1 to 4 in accordance with law.

Respondent Nos. 3 and 4 filed written statements denying the factum of marriage between Respondent No. 2 and Muthusamy Gounder, stating that Respondent No. 1 alone was a member of the Hindu Undivided Family (HUF) of Muthusamy Gounder. Therefore, the Appellants, along with other legal heirs/successors of Muthusamy Gounder, prayed for partition of the coparcenary headed by Muthusamy Gounder.

The Trial Court held that Respondent No. 4 admittedly was the first and legally wedded wife of Muthusamy Gounder. Appellant No. 2 and Respondent No. 2 did not produce evidence to prove the factum of the marriage with Muthusamy Gounder. The Trial Court recorded a categorical finding that Appellant No. 2 and Respondent No. 2 are not the wives of Muthusamy Gounder, and consequently, the status of the children through the extended family as coparceners was rejected.Appeals were filed before the High Court of Judicature at Madras by the Respondent Nos. 1 and 2 and the Appellants herein. Through the impugned judgment, the appeals filed at the instance of extended family members of Muthusamy Gounder, stood dismissed. Hence, the Civil Appeal was filed at the instance of the Appellants-Defendant Nos. 3 to 5.

Before the Division Bench of Justice M.M.Sundresh and Justice S.V.N. Bhatti, the claim for partition in the share notionally allotted to late Muthusamy Gounder was pressed for. The Appellants claimed a share from the share as the children of Muthusamy Gounder.

The Bench noted that the mortgage deed showed that Muthusamy Gounder treated Appellant No. 1, Respondent No. 1 and Respondent No. 3 as his sons. The document was executed for himself and on behalf of his minor sons. By applying Sections 17 and 18 of the Evidence Act, the Bench was convinced that Muthusamy Gounder made a statement describing Appellant No. 1 and Respondent No. 1 as his sons and treated as an admission by record. This statement satisfied the ingredients of Section 18 of the Act. Further, the admission in the mortgage deed, coupled with the joint patta and voters lists, declared the status of Appellant No. 1, Respondent No. 1, along with Respondent No. 3 as the sons of Muthusamy Gounder and Appellant No. 3 as his daughter.

Once the status of the parties, other than Respondent No. 3, is established as the extended family of the propositus, irrespective of whether the marriages of Appellant No. 2 and Respondent No. 2 with Muthusamy Gounder are void or voidable, denying the children of Muthusamy Gounder a share in the property of notional partitioned in favour of Muthusamy Gounder, was unsustainable in law and fact.

“Appellant No. 3 claims to be the daughter of Muthusamy Gounder, and the law, as applicable to the separate share of Muthusamy Gounder, grants an equal share to the daughter along with the sons of Muthusamy Gounder”, the Bench said.

The top Court relied upon its observations in Revanasiddappa and another v. Mallikarjun and others [LQ/SC/2023/928] whereby it was held that-

• While conferring legitimacy in terms of sub-section (1) of section 16 of of the Hindu Marriage Act, 1955 on a child born from a void marriage and under sub-section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub-section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;
• While construing the provisions of Section 3(j) of the Hindu Succession Act, 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA, 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA, 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(j) of the HSA, 1956, fall within the ambit of the explanation related by legitimate kinship and cannot be regarded as an illegitimate child for the purposes of the proviso.

Thus, applying such principle on the entitlement of share to the children of void or voidable marriages, the Bench set aside the judgements and allowed the appeal by passing a preliminary decree of partition for the plaint schedule properties, firstly between Respondent No. 3 and Muthusamy Gounder. Secondly, in the notionally partitioned share of Muthusamy Gounder, his children, i.e., Appellant Nos. 1 and 3, Respondent No. 1 and Respondent No. 3 were allotted equal shares.