Perumal Gounder and another vs Pachayappan and others

The defendants in O.S. No. 117 of 1981, District Munsif''s Court, Gingee, who are husband and wife, are the appellants in this Second Appeal.

The suit in O.S. No. 117 of 1981 was instituted by the respondents herein praying for the relief of partition and separate possession of the first

respondent''s half share in the suit properties and for mesne profits and for recovery of maintenance at the rate of Rs. 100/- per mensem in so far

as respondents 2 and 3 are concerned, with a charge over the properties of the first appellant herein.

The case of the respondents is briefly as follows :--

The suit properties are the joint family properties of the first appellant and the first respondent. The third respondent is the legally wedded wife of

the first appellant and respondents 1 and 2 are the issues born out of that wedlock. Since the second appellant, wife of the first appellant, was

afflicted with some incurable disease, with the consent of the second appellant, the first appellant married the third respondent in 1953 according to

Hindu rites and custom. The first appellant and the third respondent were living as husband and wife and a male child was born to them on 29-7-

1961, but the child died subsequently. Thereafter, the first respondent was born on 3-3-1968. The third respondent and the first appellant were

living together happily till about 1975 and thereafter, the first appellant deserted the respondents and drove them out of the house at the instigation

of the second appellant. According to the case of the respondents, the first appellant is bound to protect them but, he, with a view to leave the

respondents in the lurch, had executed a settlement deed on 1-6-1979 in favour of the second appellant in respect of items 4 and 5 of the suit

properties. The first appellant, according to the respondents, was not competent to execute a settlement deed in respect of the joint family

properties in favour of his wife, the second appellant, and that would be an invalid transaction. The first appellant is in exclusive enjoyment of the

suit properties, realising a net annual income of Rs. 6,000/-. On 7-6-1979, the respondents issued a notice to the appellants calling upon them to

cancel the settlement deed, to which a reply was received containing false allegations. The respondents also claimed that even on the footing that

respondents 1 and 2 are illegitimate children born to the third respondent, by virtue of the amended S. 16 of the Hindu Marriage Act, 1955, they

should be regarded as legitimate children so that the first respondent is entitled to his legitimate share in the suit properties and the first appellant is

bound to maintain respondents 2 and 3 towards which they claimed that they should be given a sum of Rs. 100/- per month each. It was under the

abovesaid circumstances that the respondents instituted the suit praying for the reliefs set out earlier.

In the written statement filed by the first appellant, which was adopted by the second appellant, they contended that the third respondent is not

the legally wedded wife of the first appellant and that respondents 1 and 2 are not the issues born of such lawful wedlock. That the second

appellant was afflicted with some incurable disease was denied. The third respondent, according to the appellants, is the legally wedded wife of

one Narayanasamy and even on the assumption that the first appellant had married the third respondent, such a marriage would be void, as the

second appellant is alive and the husband of the third respondent is also alive and, therefore, respondents 1 and 2 cannot claim to be legitimate

children. The living together of the first appellant and the third respondents is denied. The claim of respondents 2 and 3 to maintenance was

disputed and was also characterised as excessive. The properties were claimed by the first appellant as his self-acquired properties. The right of

the first respondent to claim a share in the properties was disputed and the first appellant stated that he had full rights to alienate the properties.

Alleging that the first appellant had also borrowed certain amounts, the appellants contended that provision should be made for the payment of

those debts also. Finally, the appellants prayed for the dismissal of the suit.

Before the trial Court, on behalf of the respondents, Exhibits A-1 to A-10 were filed and the third respondent and two others gave evidence as

P.Ws. 1 to 3, while, on behalf of the appellants, Exhibits B-1 and B-2 were marked and the second appellant and another examined themselves as

D.VVs. 1 and 2. On a consideration of the oral as well as the documentary evidence, the trial Court found that though the suit properties are the

joint family properties and not the separate properties of the first appellant, they are not the joint family properties of the first appellant and the first

respondent, that the third respondent is not the legally wedded wife of the first appellant, that the respondents are entitled to claim rights in the

properties of the first appellant, that they are not entitled to do so during his lifetime, that the settlement deed executed by the first appellant in

favour of the second appellant is true, that respondents I and 2 are the legitimate children of the first appellant, that they are not his legitimate heirs,

that respondents 2 and 3 are entitled to claim maintenance from the first appellant, that a sum of Rs. 50 and Rs. 100/- respectively would be

adequate towards the maintenance of respondents 2 and 3 respectively and that the first respondent is not entitled to claim partition of the suit

properties. On the aforesaid conclusions, the trial Court dismissed the claim of the first respondent for partition and separate possession of his half

share in the suit properties, but granted a decree in favour of second and third respondents herein for a monthly maintenance of Rs. 50/- and

Rupees 100/- respectively. Aggrieved by this, the respondents herein preferred an appeal in A.S. No. 14 of 1982 before the Sub Court,

Tindivanam. The learned Subordinate Judge, while accepting that as per Section 16 of the Hindu Marriage Act, respondents 1 and 2 should be

considered to be the legitimate children of the first appellant, found that the suit properties should also be considered to be the joint family

properties of the first appellant and the first respondent herein, in which the first respondent is entitled to a half share and the first appellant was,

therefore, not competent to deal with the properties by executing a settlement deed in favour of the second appellant herein. In view of the

conclusions so arrived at, the lower appellate Court granted a preliminary decree for partition and separate possession of a half share in the suit

properties in favour of the first respondent herein. It is the correctness of this that is questioned in this Second Appeal.

Learned counsel for the appellants contended that when even according to the respondents, at the time of the marriage of the first appellant with

the third respondent in 1953, the marriage between the first and the second appellants subsisted, such a marriage was opposed to the provisions of

the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 and the marriage was rendered void and that even if respondents 1 and 2 should

be regarded as the legitimate children of the first appellant, they cannot claim any rights in the properties of the first appellant during his lifetime, as

such rights, if at all, could be claimed after the lifetime of the first appellant. Reliance in this connection was placed upon S. 16 of the Hindu

Marriage Act and the decision of this Court reporte in Sivagnanavadivu Nachiar v. Krishnamanthan, (1976) 89 MLW 706. Attention was also

drawn to the judgment of this Court reported in Margabandhu and Another Vs. Kothandarama Mandhiri and 0rs., relied on by the lower appellate

Court and it was contended that the very learned Judge who had rendered the decision had reviewed it and arrived at a diametrically opposite

conclusion as could be seen from Margabandhu v. Kothandarama Mandhiri, (1987)2 MIJ 267 and, therefore, the lower appellate Court was in

error in granting the relief of partition in favour of the first respondent. On the other hand, learned counsel for the respondents attempted to sustain

the view taken by the lower appellate Court on the basis of the decision in Margabandhu and Another Vs. Kothandarama Mandhiri and 0rs., .

Before proceeding to consider the contentions advanced, it is necessary to notice a few undisputed facts. The first appellant had married the

second appellant as his wife even long prior to 1953. The second marriage between the first appellant and the third respondent took place, even

according to the respondents, in 1953. The provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 were then in force. The

first respondent was horn on 18-11-1962 and the second respondent was born on 3-3-1968. It is obvious, therefore, that respondents 1 and 2

were born to the first appellant and the third respondent during the subsistence of a valid marriage between the first and the second appellants.

Under S. 4(1) of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, notwithstanding any rule of law, custom or usage to the

contrary, any marriage solemnized after the commencement of that Act between a man and a woman either of whom has a spouse living at the time

of such solemnization shall be void. Statutorily, therefore, the so-called marriage between the first appellant and the third respondent, even if such a

marriage had taken place in 1953, is void. Therefore, the children born to the first appellant and the third respondent, viz., respondents 1 and 2

should be regarded as born outside lawful wedlock and rendered illegitimate children. Under S. 11 of the Hindu Marriage Act, any marriage

solemnized after the commencement of the Act, viz., 18-5-1955 shall be null and void as contravening S. 5(1) of that Act, viz., a party to the

marriage having a spouse living at the time of the marriage. Under S. 30 of the Hindu Marriage Act, the Madras Hindu (Bigamy Prevention and

Divorce) Act, 1949 was repealed as unnecessary in view of the comprehensive provisions contained in the Hindu Marriage Act. A marriage which

had been declared void under the Madias Hindu (Bigamy Prevention and Divorce) Act, 1949 cannot be regarded to have become valid on the

repeal of that Act. It has, therefore, to be taken that the void nature of the marriage between the first appellant and the third respondent should be

treated as having continued at the time of the enacting of the Hindu Marriage Act, 1955. Under S. 11 of the Hindu Marriage Act, a marriage like

the one between the first appellant and the third respondent is also void. Under S. 16(1) of the Hindu Marriage Act, 1955, after the amendment in

1976, the off-spring of a void marriage, who had been till then regarded as illegitimate, is declared to be legitimate and under S. 16(3), such

children are conferred rights in or to the property of their parents in cases where, but for the passing of the amending Act, such a child could not

have acquired rights by reason of his not being the legitimate child. On the facts of this case, it follows that though in 1953, at the time when the first

appellant married the third respondent, the marriage was void and had continued to be so even after the coming into force of the Hindu Marriage

Act, 1955, yet, by reason of S. 16(1) and (3) of the Hindu Marriage Act as amended in 1976, respondents 1 and 2 had been declared to be the

legitimate children of the first appellant and rights in the properties of the first appellant had also been conferred on them. The finding of the Courts

below that the properties owned by the first appellant are joint family properties was not challenged before this Court. Even so, the first respondent

cannot be considered to be a coparcener entitled to a half share in the suit properties, along with his father, the first appellant herein. Under Sec.

16(1) and (3) of the Hindu Marriage Act, there is no question of the conferment of the status of a coparcener on a person like the first respondent

herein. On the other hand, right over the properties of the parents alone has been conferred on respondents I and 2, treating them as legitimate

children of the first appellant. Considering the restricted statutory right so conferred, the first respondent cannot claim to be a member of the

coparcenary along with the first appellant and on that footing seek the relief of partition in relation to the joint family properties.

It would be useful in this connection to refer to the decision in Sivananavadivu Nachiar v. Krishnakanthan,1. Therein, it has been pointed out that

with reference to S. 16 of the Hindu Marriage, Act, children born of void marriages would be legitimate and such legitimization relates back to the

date of their birth, but that the proviso forbids the conferment of any right on the legitimatized children in the properties of another person other

than the parents and the policy appears to be not to enable such children to have full rights as legitimate sons and daughters. The view so taken

fully supports the stand of the learned counsel for the appellants. However, in Margabandhu and Another Vs. Kothandarama Mandhiri and 0rs., ,

it was held that the amendment to S. 16(1) of the Hindu Marriage Act, noticed earlier, would enable the legitimatized children to share equally with

the legitimate children and that they are also entitled to claim shares equally with legitimate sons. This view is plainly opposed to the earlier decision

in Sivagnanavadivu Nachiar v. Krishnakanthan, (1976) 89 Mad LW 706, referred to earlier. However, the decision in Margabandhu and Another

Vs. Kothandarama Mandhiri and 0rs., came to be reviewed in Margabandhu v. Kothandarama Mandhiri, (1987) 2 Mad LJ 267 and after

referring to Sivagnanavadivu Nachiar v. Krishnakanthan, (1976) 89 Mad LW 706, the learned Judge held that the share of the legitimatized

children in the properties would be confined to the interest of their parents and they are not entitled to claim an equal share along with the legitimate

children. In other words, by the review of the judgment, the view taken has been brought in conformity with the decision in Sivagnanavadivu

Nachiar v. Krishnakanthan, (1976) 89 Mad LW 706. Considering the decision in Sivagnanavadivu Nachiar v. Krishnakantan, (1976) 89 Mad

LW 706 and Margabandhu v. Kothandarama Mandhiri, (1987) 2 Mad LJ 267, the first respondent, though he should be considered to be the

legitimate son of the first appellant, cannot seek the relief of partition as such, but at best may be entitled to rights in the properties of the first

appellant, after his death. The lower appellate Court was, therefore, in error in granting a preliminary decree for partition in favour of the first

respondent herein. Consequently, the Second Appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of

the trial Court will stand restored. Considering the relationship between the parties, each party is directed to bear his or her costs throughout.

Appeal allowed.