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Judgment
J.A. Patil, J.—This Appeal, filed by the original plaintiff, is directed against the judgment and decree dated 31.1.1983 passed in the Special Civil Suit No. 48 of 1978 by the Joint Civil Judge, ST. Division, Satara, The learned Civil Judge partly decreed the plaintiffs suit for possession, declaring that she has only 1/4th share in the suit property and that she was entitled to get the same separated on partition. The plaintiff who had claimed the possession of the entire suit property, feeling dissatisfied with the said order, has preferred this Appeal. It may be pointed out that defendant No. 1 has filed a Cross Objection, praying for dismissing the plaintiffs suit and for setting aside the findings recorded by the learned Joint Civil Judge to the effect that she was not the legally wedded wife of the deceased Balwant Shingate.
A few relevant facts which would be necessary for deciding this controversy are as under :
Deceased Balwant Shingate, who died on 11.8.1978 was the father of the plaintiff. Muktabai was the plaintiffs mother, Balwant was working as a Talathi. He had a brother by name Woman. Balwant and Woman owned some ancestral properties which they got partitioned in the year 1967. The ancestral property included agricultural land and house property. In the said partition the plaintiffs father Balwant was allotted the suit property described in Schedule ''A'' & ''B'', attached to the plaint. There was also a registered partition deed.
The plaintiffs mother Muktabai died in the year 1964 and her father Balwant died on 11.8.1978. According to the plaintiff, she alone is the legal heir of her father and therefore, she alone is entitled to succeed to his properties. However, the suit properties described in Schedule ''A'' & ''B'' are in possession of defendant No. 1 - Hirabai, who claims to have married plaintiffs father - Balwant on 11.3.1960. The defendant Nos. 2 to 4 are the daughters of defendant No. 1 from Balwant. It is the plaintiffs case that the marriage of defendant No. 1 - Hirabai with her father Balwant having taken place during the life time of her mother - Muktabai is null and void and therefore, the defendant No. 1 cannot claim to be a legally wedded wife of deceased Balwant. Consequently, the defendant Nos. 2 to 4 are the illegitimate children of defendant No. 1. Therefore, the plaintiff filed the abovementioned suit to recover the suit property, which was in possession of defendant No. 1. The plaintiff has also claimed the amount of gratuity and provident fund which was payable to her deceased father Balwant.
Defendant Nos. 1, 3, and 4 resisted the suit under their joint written statement and denied the contentions that the defendant No. 1, was not the legally wedded wife of deceased Balwant. They pointed out that plaintiffs mother Muktabai had contacted breast cancer and that she was incapable of bearing any child. At that time Balwant was a. young man. Therefore, according to the defendants, Muktabai insisted on Balwant''s giving her divorce, which was permissible in their caste. Defendants further contended that at the insistence of Muktabai, Balwant gave her divorce and married defendant No. 1 - Hirabai in 1960. According to the defendants they along with the plaintiff are the legal heirs of deceased Balwant and as such the plaintiff alone is not entitled to claim the suit property. It is alleged that the plaintiff filed the present suit at the instigation of her uncle - Woman with whom she was residing.
Before the Trial Court both the parties laid oral as well as documentary evidence. The learned Judge upon consideration of the evidence on the record came to the conclusion that there was a marriage between deceased Balwant and defendant No. 1 during the life time of Muktabai. He, however, negatived the defendants'' plea that Balwant had given divorce to his first wife Muktabai and thereafter, married Hirabai. Consequently, the learned Judge held that the defendant No. 1 not being a legally wedded wife of deceased Balwant, she was not entitled to claim any share in the property. However, she was entitled only to get maintenance out of the suit property. As regards defendant Nos. 2 to 4, the learned Judge relied upon the provisions of Section 16(a) of the Hindu Marriage Act and held that even though they are illegitimate children of deceased Balwant, they would be entitled to succeed to the property of their father Balwant. In this view of the matter, the learned Judge concluded the shares of the plaintiff in the suit property as being 1/4th and decreed her claim for partition to that extent. He further declared that defendant No. 1 was entitled to get maintenance at the rate of Rs. 200/- month from the date of the order from the suit property.
I have heard Shri A.K. Abhyankar, the learned Advocate for the appellant/plaintiff and Shri M.A. Rane, the learned Advocate for the respondents/defendants.
Shri Abhyankar did not seriously dispute before me the fact of marriage between the plaintiffs father - Balwant and defendant No. 1 -Hirabai. He submitted that the defendants failed to prove that deceased Balwant had given divorce to the plaintiffs mother Muktabai. Shri Abhyankar pointed out that there is absolutely no satisfactory evidence to prove the alleged fact of divorce as contended by the defendants and therefore, according to him the finding recorded by the learned Civil Judge in that respect needs no interference. Shri Abhyankar, however, contended that the learned Judge was not right in allowing the plaintiffs claim only to the extent of 1/4th share in the suit property. According to him the plaintiffs claim should have been decreed in toto. Shri Abhyankar argued that the learned Judge erred in giving the benefit of provisions of Section 16 of the Hindu Marriage Act to defendant Nos. 2 to 4. According to him the application of Section 16(3) is restricted to the self acquired property and that the same is not applicable to ancestral property. He, however, submitted that children garbed with legitimacy, cannot succeed to the ancestral property of their parents. In this respect he relied upon the decision of the Division Bench of this Court in the case of Shantaram Tukaran Patil and Another Vs. Dagubai Tukaram Patil and Others, .
Shri Rane, the learned Advocate for the respondent/defendants, on the other hand pointed out that the deceased Balwant did not have any male issue and therefore, the suit property will have to be treated as his absolute and self acquired property. With the result that defendant Nos. 2 to 4 become entitled to succeed to the same. Shri Rane further submitted that the evidence on the record clearly makes it probable that deceased -Balwant must have given divorce to his first wife - Muktabai.
There is ample evidence on the record to show that deceased Balwant had married defendant No. 1 - Hirabai in the year 1960 and that both of them were living together as husband and wife. This position is not seriously disputed before me by Shri Abhyankar. It is also not in dispute that defendant Nos. 2 to 4 are the daughters of defendant No. 1 from deceased Balwant. However, the material question to be considered is with regard to the validity or otherwise of the marriage between deceased Balwant and defendant No. 1 - Hirabai. Admittedly the said marriage had taken place during the life time of the first wife Muktabai. Therefore, in view of the provisions of Section 5(i) read with Section 11 of the Hindu Marriage Act, the said marriage would be a void marriage. The defendants have, however, come out with a case that deceased Balwant had given a divorce to his first wife Muktabai. It is their case that divorce is permissible in the maratha caste to which the parties belong and that since Muktabai was suffering from breast cancer, she did not have any hope to bear any issue. Therefore, according to them at the instance of Muktabai, deceased Balwant gave her divorce and thereafter, he married to defendant No. 1 - Hirabai. The learned Civil Judge has considered the evidence produced by the defendants in this respect and found that the same is neither cogent nor satisfactory and therefore, declined to accept the plea of divorce as; raised by the defendants. I do not find any fault with the said finding of the learned Civil Judge. It may be pointed out that the evidence regarding the alleged custom is very scanty and vague. No concrete Instance of any divorce having been given in the family at any time before the alleged divorce was shown. Defendant No. 1 stated that there was a registered document regarding divorce. She stated in her cross-examination that after the death of Balwant she got possession of his share. If that was so then there was no difficulty for defendant No. 1 to produce the divorce deed. However, the same was not produced. Under these circumstances, the learned Judge was quite right in not accepting the plea of divorce, raised by the defendants.
Since the marriage of defendant No. 1 with deceased Balwant took place during the life time of his first wife Muktabai and since no divorce between Balwant and Muktabai is proved to have taken place, it follows that defendant No. 1 Hirabai cannot be a legally wedded wife of Balwant. Consequently, the defendant Nos. 2 to 4 who are her daughters from Balwant would be the illegitimate children. So far as defendant No. 1 -Hirabai is concerned, there cannot be any dispute of the fact that she would not be entitled to claim any share in the property of deceased - Balwant. The question is, whether the defendant Nos. 2 to 4 who are the illegitimate daughters, can claim any shares in the property of their father deceased Balwant. It may be noted that the children born out of lawful wedlock of their parents are legitimate children and normally they are entitled to inherit the properties of their parents. This was, however, not so under the Hindu law, as it prevailed prior to 1955 with regard to the children who were not born out of lawful wedlock or where the marriage is null and void or declared to be null and void, the children born out of such marriage were treated as illegitimate children. Therefore, under the Hindu law as it existed prior to 1955, they could not claim any share in the properties of their parents. It was really unfortunate that they were not only deprived of their rights to claim a share in the property of their parents but had also to carry a social stigma of being bastards for the whole life. This position was sought to be changed by Section 16 of the Hindu Marriage Act, 1955 which reads as under:-
Section 16. - Legitimacy of children of void and voidable marriages.-
(1) Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall he 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 u/s 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 u/s 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 provisions of Section 16(1) & (2) have the effect of conferring status of legitimacy upon the children born out of the marriage which is null and void. They are really beneficent and benevolent provisions. So far as such children are concerned, in view of the above mentioned provisions, they would be regarded, in law, as legitimate children for all purposes, including succession. Sub-section 3 of Section 16 in substance lays down that any child of a marriage which is null and void and which is annulled by a decree of nullity, will not be entitled to claim any right in the property of any person other than the parents. In other words, it means that such a child is entitled to claim a right in the property of its parents. It is on the basis of the provision of Section 16 of the Hindu Marriage Act that the learned Judge has held that defendant Nos. 2 to 4, though illegitimate children, are entitled to inherit the properties of their father deceased Balwant.
Shri Abhyankar does not dispute this legal position. However, according to him the property of deceased Balwant being the coparcenary property, the defendant Nos. 2 to 4 are not entitled to get any share therein. Relying upon the decision in Shantaram Tukaram Patil v. Smt. Dagubai Tukaram Patil and Ors. (supra), Shri Abhyankar contended that the property to which the illegitimate children of Hindu parents can lay claim, must be the separate property of such parents and not the coparcenary property. In the said case the facts were much identical with the facts of the present case. In the above cited case, One Tukaram married to Dagutai, who was plaintiff No. 1 and she had 3 daughters from Tukaram. During the subsistence of his marriage with Dagubai, Tukaram married Lilabai, who was defendant No. 2, sometime in the year 1976 and from her he got a son, Shantaram, who was defendant No. 1. Tukaram died in 1978. Thereafter, the plaintiffs filed a suit for possession of several properties which had been left by the Tukaram and which were in possession of the defendants. Alternatively, the plaintiffs prayed that in case it was held that Shantaram had a share in the property, then the Court should determine the shares and partition the properties. The main thrust of the plaintiffs was that the defendants were not the legal heirs of Tukaram because defendant No. 2, Lilabai had married Tukaram during the subsistence of his first valid marriage with respondent No. 1 Dagubai. It may be noted that in that suit also the defendants contended inter-alia that Tukaram had given divorce to his first wife Dagubai and thereafter married Lilabai. Therefore, according to them the marriage of Tukaram with Dagubai was a valid marriage and Shantaram was the legitimate son of Tukaram. In that case, the Trial Court found that the divorce between Tukaram and Dagubai was not proved and therefore, necessarily held the marriage between Tukaram and Lilabai was a void marriage under the provisions of Section 11 read with Section 5(i) of the Hindu Marriage Act. Consequently, the Trial Court held that neither of the defendants had any share in the properties of Tukaram. However, he held that both the defendants were entitled to maintenance only.
In Appeal, the Division Bench compromising of R.A. Jahagirdar and A.C. Agrawal, JJ. referred to the earlier decision, of the learned single Judge in three cases including the case of Raghunath alias Ashok Nana Patil Vs. Nana Rama Patil, wherein it was held that an illegitimate son was entitled to its share in the property which had fallen to the share of his lather, after the partition. However, the Division Bench in the case of Shantaram Tukaram Patil v. Smt. Dagubai Tukaram Patil overruled the decision in the case of Raghunath v. Nana and summarised the propositions of law in that case with regard to a child of a void marriage as under:-
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 (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 alias Ashok Nana Patil Vs. Nana Rama Patil, );
(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 u/s 16, Hindu Marriage Act.
Shri Rane, the learned Advocate for the defendants pointed out that Section 16 of the Hindu Marriage Act does not refer to the nature of the property in which an illegitimate child can claim a right. According to him Sub-section 3 of Section 16 does not make any distinction between self acquired property and ancestral property. I am, however, unable to accept the submission of Shri Rane since the decision is given by the Division Bench and the same is binding on the Single Judge. Therefore, the legal position which emerges is to the effect that the children of a marriage which is null and void and which is annulled by a decree of nullity cannot claim any right in the ancestral property of their parents. Such children can claim a right only if the property is absolutely self acquired property of their parents.
Shri Rane further submitted that the property which was allotted to the share of the deceased - Balwant in partition of the ancestral properties between him and his brother - Woman, will have to be treated as his self acquired property. In this connection he drew my attention to Section 230 of the Mulla''s Hindu Law, Sixteenth Edition, wherein it is mentioned which properties are treated as separate property of the acquirer. One of such items stated thereunder is that the property obtained as a share on partition by a coparcener who has no male issue. In this connection following commentary appearing at page 248 under the caption"(4) - Share allotted on partition" is relevant and material and it reads as follows:-
(4). Share allotted on partition -The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth (q), whether they are in existence at the time of partition or are born subsequently (r). Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (s). Reference may also be made to Notes under para 8 of the Hindu Succession Act, 1956 and the Supreme Court and High Court decisions as to ancestral property cited there.
It is material to note that unlike in the case of Shantaram Tukaram Patil v. Smt. Dagubai Tukaram Patil and Ors. the present deceased Balwant did not have any male issue. Therefore, although the suit properties are initially ancestral properties, still the same will have to be regarded as the self acquired and absolute properties of deceased Balwant since he did not have any male issue. This is the crucial factor which makes all the distinction between the present case and the case of Shantaram Tukaram Patil v. Dagubai Tukaram Patil (supra), upon which Shri Abhyankar relied heavily.
Therefore, defendant Nos. 2 to 4 though illegitimate daughters of deceased Balwant, have an equal right along with the plaintiff, a legitimate daughter of the deceased Balwant in his property. In view of this position the judgment and decree passed by the learned Judge, declaring that the plaintiff has only 1/4th share in the suit property needs no interference. The plaintiff is entitled to get the same separated on partition. The learned Judge was, however, unmindful of the fact that it is not sufficient to declare the share of the plaintiff alone. It is also necessary to declare the shares of other persons. Obviously, defendant Nos. 2 to 4 each will take 1/4th share in the suit property.
As regards the right of the defendant No. 1, the learned Judge has held that she is entitled to get maintenance of Rs. 200/- per month from the properties of deceased Balwant during her life time. However, in order to secure payment of the said maintenance allowance, it was necessary for him to have created a charge on the suit property. The same is therefore, hereby created. Consequently, the liability of the plaintiff to pay the said maintenance allowance, will be limited to the extent of her 1/4th share.
In view of the above position, the Appeal as well as the cross-objection, both are dismissed. Rule is discharged. The parties are left to bear their respective costs.