AS 3604/04 22/08/23 [THE HON’BLE JUSTICE M.G. PRIYADARSINI
 [ TELANGANA HIGH COURT ]

 

_*• Hindu Marriage Act Sections 11 and 16(1) Children of void marriage Dismissal of suit seeking partition of the suit schedule properties and for allotment of 1/3rd share in her favour Suit involves ancestral properties Agricultural land and houses Inherited by defendant No. 1. The plaintiff claims a 1/3rd share in these properties as a coparcener of the joint Hindu family Primary contention revolves around the plaintiff’s legitimacy and her entitlement to a share in the ancestral properties Plaintiff’s legitimacy and rights as a coparcener in the joint family properties are the focal points of the legal dispute As rightly observed by the Trial Court, the plaintiff being the daughter of defendant No. 1 through the second wife, P-W.2, whose marriage is null and void, could not claim any inheritance in the joint family property, that too while the father was alive Such illegitimate would only be entitled to a share in the self-acquired property of the parents Trial Court was absolutely right in holding that the plaintiff, who born out of a void marriage between defendant No. 1 and PW.2, cannot claim partition of the joint family properties during the lifetime of defendant No. 1 Appeal dismissed confirming the judgment of the District Judge in dismissing the suit of the appellant-plaintiff. [Paras 17, 18 and 19]*_

Relevant Paras

17. A plain reading of Section 16 of the Act would make itabundantly clear that the right conferred upon the illegitimate children is, only as regards the property left by their parents and nothing more. Section 16 of the Act, while engrafting a
rule of fiction in ordaining the children, through 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 is concerned, to the properties of the parents only. In this view, as rightly observed by the Trial Court, the plaintiff being the daughter of defendant
No. 1, through the second wife, P.W.2, whose marriage is null and void, could not claim any inheritance in the joint family property, that too while the father was alive. The Apex Court in the decision rendered in Neelamma and Ors. v. Sarojamma
and Ors.3 while dealing with the point as to whether an illegitimate child can acquire/claim as of right a share in the joint Hindu family property, referring to its earlier decision rendered in Jinia Keotin v. Kumar Sitaram manjhi4 has categorically
held that an illegitimate child cannot succeed/claim a share in the joint Hindu Family property. Such illegitimate child would only be entitled to a share in the self-acquired property of the parents. Further, the Apex Court in Bharatha Matha and Anr. V. R. Vijaya Renganathan and Ors.5 referring to its earlier
decisions in Neelamma (supra) and Jinia Keotin (supra) and analyzing Section 16 of the Act, has held that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties, if any.

18. It must be noted that the Apex Court in the case of
Revannasiddappa and Another v. Mallikarjun and Others6 had took note of Section 16(3) of the Hindu Marriage Act and has observed at para-45 as follows:-
“45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will
have a right to whatever becomes the property of their parents whether self-acquired or ancestral.”
Thus, the Two-Judge Bench, opining that such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral, differed with the view taken by coordinate Benches in the earlier decisions quoted supra and referred the matter for reconsideration by a
Larger Bench. Be that as it may, the reference by itself will not tie the hands of the Court in deciding the matters on the basis of the enunciation of law prevailing as on date.
19. In light of the above, the Trial Court was absolutely right in holding that the plaintiff, who born out of a void marriage between defendant No. 1 and P.W.2, cannot claim partition of the joint family properties during the lifetime of defendant No. 1
6 (2011) 11 SCC 1 but she may be entitled to share in the self-acquired properties of defendant No. 1 after his death. Therefore, the said findings need no interference by this Court and the appeal is liable to be dismissed.

 

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Kumari Krishna Veni @ Sadhu Gyni Krishna Veni Vs. Gyni Venkati @ Sadhu Venkati & Ors.

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