REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.           OF 2011 (Arising out of Special Leave Petition (C) No.12639/09)

Revanasiddappa & another  ...Appellant(s)

- Versus -

Mallikarjun & others ...Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. The first defendant had two wives- the third  

plaintiff (the first wife) and the fourth defendant  

(the  second  wife).  The  first  defendant  had  two  

children from the first wife, the third plaintiff,  

namely,  the  first  and  second  plaintiffs;  and  1

another  two  children  from  his  second  wife,  the  

fourth  defendant  namely,  the  second  and  third  

defendant.

3. The  plaintiffs  (first  wife  and  her  two  

children)  had  filed  a  suit  for  partition  and  

separate  possession  against  the  defendants  for  

their  1/4th share  each  with  respect  to  ancestral  

property  which  had  been  given  to  the  first  

defendant by way of grant. The plaintiffs contended  

that  the  first  defendant  had  married  the  fourth  

defendant while his first marriage was subsisting  

and,  therefore,  the  children  born  in  the  said  

second marriage would not be entitled to any share  

in the ancestral property of the first defendant as  

they were not coparceners.

4. However,  the  defendants  contended  that  the  

properties were not ancestral properties at all but  

were  self-acquired  properties,  except  for  one  

property  which  was  ancestral.  Further,  the  first  

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defendant  also  contended  that  it  was  the  fourth  

defendant who was his legally wedded wife, and not  

the third plaintiff and that the plaintiffs had no  

right  to  claim  partition.  Further,  the  first  

defendant also alleged that an oral partition had  

already taken place earlier.

5. The  Trial  Court,  by  its  judgment  and  order  

dated 28.7.2005, held that the first defendant had  

not been able to prove oral partition nor that he  

had  divorced  the  third  plaintiff.  The  second  

marriage  of  the  first  defendant  with  the  fourth  

defendant  was  found  to  be  void,  as  it  had  been  

conducted  while  his  first  marriage  was  still  

legally subsisting. Thus, the Trial Court held that  

the third plaintiff was the legally wedded wife of  

the first defendant and thus was entitled to claim  

partition. Further, the properties were not self-

acquired but ancestral properties and, therefore,  

the plaintiffs were entitled to claim partition of  

the suit properties. The plaintiffs and the first  

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defendant were held entitled to 1/4th share each in  

all the suit properties.

6. Aggrieved,  the  defendants  filed  an  appeal  

against the judgment of the Trial Court. The First  

Appellate Court, vide order dated 23.11.2005, re-

appreciated  the  entire  evidence  on  record  and  

affirmed the findings of the Trial Court that the  

suit properties were ancestral properties and that  

the third plaintiff was the legally wedded wife of  

the first defendant, whose marriage with the fourth  

defendant  was  void  and  thus  children  from  such  

marriage were illegitimate. However, the Appellate  

Court reversed the findings of the Trial Court that  

illegitimate children had no right to a share in  

the coparcenary property by relying on a judgment  

of the Division Bench of the Karnataka High Court  

in  Smt. Sarojamma & Ors. v. Smt. Neelamma & Ors.,  

[ILR 2005 Kar 3293].  

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7. The  Appellate  Court  held  that  children  born  

from a void marriage were to be treated at par with  

coparceners and they were also entitled to the joint  

family  properties  of  the  first  defendant.  

Accordingly,  the  Appellate  Court  held  that  the  

plaintiffs, along with the first, second and third  

defendants  were  entitled  to  equal  share  of  1/6th  

each in the ancestral properties.

8. The  plaintiffs,  being  aggrieved  by  the  said  

judgment of the Appellate Court, preferred a second  

appeal  before  the  High  Court  of  Karnataka.  The  

substantial questions of law before the High Court  

were:

“a) Whether the illegitimate children born out  

of  void  marriage  are  regarded  as  

coparceners by virtue of the amendment to  

the Hindu Marriage Act, 1956?

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b) At  a  partition  between  the  coparceners  

whether they are entitled to a share in the  

said properties?”

9. The High Court stated that the said questions  

were no more res integra and had been considered in  

the judgment of Sri Kenchegowda v. K.B. Krishnappa  

& Ors., [ILR 2008 Kar 3453]. It observed that both  

the  lower  courts  had  concurrently  concluded  that  

the  fourth defendant  was the  second wife  of the  

first  defendant.  Therefore,  the  second  and  third  

defendants were illegitimate children from a void  

marriage. Section 16(3) of the Hindu Marriage Act  

makes it clear that illegitimate children only had  

the right to the property of their parents and no  

one else. As the first and second plaintiffs were  

the legitimate children of the first defendant they  

constituted a coparcenary and were entitled to the  

suit properties, which were coparcenary properties.  

They also had a right to claim partition against  

the other   coparcener and thus   their   suit for  6

partition  against  the  first  defendant  was  

maintainable.  However,  the  second  and  third  

defendants  were  not  entitled  to  a  share  of  the  

coparcenary  property  by  birth  but  were  only  

entitled to the separate property of their father,  

the first defendant. The High Court observed that  

upon partition, when the first defendant got his  

share  on  partition,  then  the  second  and  third  

defendants would be entitled to such share on his  

dying intestate, but during his lifetime they would  

have no right to the said property. Hence, the High  

Court allowed the appeal and held that the first  

plaintiff, second plaintiff and the first defendant  

would be entitled to 1/3rd share each in the suit  

properties. The claim of the third plaintiff and  

the second, third and fourth defendants in the suit  

property was rejected.

10. As a result, the second and third defendants  

(present appellants) filed the present appeal.

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11. The question which crops up in the facts of  

this  case  is  whether  illegitimate  children  are  

entitled to a share in the coparcenary property or  

whether their share is limited only to the self-

acquired  property  of  their  parents  under  Section  

16(3) of the Hindu Marriage Act?

12. Section 16(3) of the Hindu Marriage Act, 1955  

reads as follows:

“16.  Legitimacy  of  children  of  void  and  voidable marriages- (1) xxx (2) xxx (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  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.

13. Thus, the abovementioned section makes it very  

clear that a child of a void or voidable marriage  

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can  only  claim  rights  to  the  property  of  his  

parents,  and  no  one  else.  However,  we  find  it  

interesting  to  note  that  the  legislature  has  

advisedly  used  the  word  “property”  and  has  not  

qualified it with either self-acquired property or  

ancestral  property.   It  has  been  kept  broad  and  

general.

14. Prior to enactment of Section 16(3) of the Act,  

the question whether child of a void or voidable  

marriage is entitled to self-acquired property or  

ancestral property of his parents was discussed in  

a  catena  of  cases.  The  property  rights  of  

illegitimate  children  to  their  father’s  property  

were  recognized  in  the  cases  of  Sudras  to  some  

extent.

15. In Kamulammal (deceased) represented by Kattari  

Nagaya  Kamarajendra  Ramasami  Pandiya  Naicker v.  

T.B.K. Visvanathaswami Naicker (deceased) & Ors.,  

[AIR 1923 PC 8], the Privy Council held when a Sudra  

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had  died  leaving  behind  an  illegitimate  son,  a  

daughter, his wife and certain collateral agnates,  

both  the  illegitimate  son  and  his  wife  would  be  

entitled to an equal share in his property.  The  

illegitimate son would be entitled to one-half of  

what he would be entitled had he been a legitimate  

issue. An illegitimate child of a Sudra born from a  

slave or a permanently kept concubine is entitled to  

share  in  his  father’s  property,  along  with  the  

legitimate children.

16. In  P.M.A.M.  Vellaiyappa  Chetty  &  Ors. v.  

Natarajan & Anr., [AIR 1931 PC 294], it was held  

that  the  illegitimate  son  of  a  Sudra  from  a  

permanent concubine has the status of a son and a  

member of the family and share of inheritance given  

to him is not merely in lieu of maintenance, but as  

a recognition of his status as a son; that where  

the father had left no separate property and no  

legitimate son, but was joint with his collaterals,  

the illegitimate son was not entitled to demand a  

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partition  of  the  joint  family  property,  but  was  

entitled to maintenance out of that property. Sir  

Dinshaw  Mulla,  speaking  for  the  Bench,  observed  

that though such illegitimate son was a member of  

the family, yet he had limited rights compared to a  

son  born  in  a  wedlock,  and  he  had  no  right  by  

birth. During the lifetime of the father, he could  

take only such share as his father may give him,  

but after his death he could claim his father’s  

self-acquired  property  along  with  the  legitimate  

sons.

17. In  Raja  Jogendra  Bhupati  Hurri  Chundun  

Mahapatra v. Nityanund  Mansingh  &  Anr.,  [1889-90  Indian Appeals 128], the facts were that the Raja  

was a Sudra and died leaving behind a legitimate  

son, an illegitimate son and a legitimate daughter  

and three widows. The legitimate son had died and  

the issue was whether the illegitimate son could  

succeed  to  the  property  of  the  Raja.  The  Privy  

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Council held that the illegitimate son was entitled  

to succeed to the Raja by virtue of survivorship.

18. In  Gur Narain Das & Anr. v. Gur Tahal Das &  

Ors., [AIR 1952 SC 225], a Bench comprising Justice  Fazl Ali and Justice Bose agreed with the principle  

laid down in the case of Vellaiyappa Chetty (supra)  and supplemented the same by stating certain well-

settled  principles  to  the  effect  that  “firstly,  

that the illegitimate son does not acquire by birth  

any interest in his father’s estate and he cannot  

therefore  demand  partition  against  his  father  

during the latter’s lifetime.  But on his father’s  

death,  the  illegitimate  son  succeeds  as  a  

coparcener  to  the  separate  estate  of  the  father  

along with the legitimate son(s) with a right of  

survivorship and is entitled to enforce partition  

against  the  legitimate  son(s)  and  that  on  a  

partition between a legitimate and an illegitimate  

son, the illegitimate son takes only one-half of  

what he would have taken if he was a legitimate  

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son.”  However,  the  Bench  was  referring  to  those  

cases where the illegitimate son was of a Sudra  

from a continuous concubine.

19. In the case of  Singhai Ajit Kumar & Anr.  v.  

Ujayar Singh & Ors., [AIR 1961 SC 1334], the main  question was whether an illegitimate son of a Sudra  

vis-à-vis his self-acquired property, after having  

succeeded  to  half-share  of  his  putative  father’s  

estate, would be entitled to succeed to the other  

half share got by the widow. The Bench referred to  

Chapter 1, Section 12 of the Yajnavalkya and the  

cases  of  Raja  Jogendra  Bhupati (supra)  and  Vellaiyappa Chetty (supra) and concluded that “once  it  is  established  that  for  the  purpose  of  

succession an illegitimate son of a Sudra has the  

status of a son and that he is entitled to succeed  

to  his  putative  father’s  entire  self-acquired  

property in the absence of a son, widow, daughter  

or daughter’s son and to share along with them, we  

cannot see any escape from the consequential and  

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logical  position  that  he  shall  be  entitled  to  

succeed  to  the  other  half  share  when  succession  

opens after the widow’s death.”

20. The amendment to Section 16 has been introduced  

and was brought about with the obvious purpose of  

removing the stigma of illegitimacy on children born  

in  void  or  voidable  marriage  (hereinafter,  “such  

children”).

21. However, the issues relating to the extent of  

property  rights  conferred  on  such  children  under  

Section 16(3) of the amended Act were discussed in  

detail in the case of Jinia Keotin & Ors. v. Kumar  

Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was  contended that by virtue of Section 16(3) of the  

Act, which entitled such children’s rights to the  

property  of  their  parents,  such  property  rights  

included  right  to  both  self-acquired  as  well  as  

ancestral  property  of  the  parent.  This  Court,  

repelling such contentions held that “in the light  

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of  such  an  express  mandate  of  the  legislature  

itself, there is no room for according upon such  

children  who  but  for  Section  16  would  have  been  

branded  as  illegitimate  any  further  rights  than  

envisaged therein by resorting to any presumptive or  

inferential process of reasoning, having recourse to  

the mere object or purpose of enacting Section 16 of  

the Act. Any attempt to do so would amount to doing  

not  only  violence  to  the  provision  specifically  

engrafted in sub-section (3) of Section 16 of the  

Act but also would attempt to court relegislating on  

the  subject  under  the  guise  of  interpretation,  

against even the will expressed in the enactment  

itself.”  Thus,  the  submissions  of  the  appellants  

were rejected.   

22. In  our  humble  opinion  this  Court  in  Jinia  

Keotin (supra) took a narrow view of Section 16(3)  

of the Act.  The same issue was again raised in  

Neelamma & Ors.  v. Sarojamma & Ors  .   [(2006) 9 SCC  612], wherein the court referred to the decision in  

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Jinia  Keotin (supra)  and  held  that  illegitimate  children would only be entitled to a share of the  

self-acquired property of the parents and not to the  

joint Hindu family property.

23. Same position was again reiterated in a recent  

decision of this court in Bharatha Matha & Anr. v.  

R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685],  wherein this Court held that a child born in a void  

or  voidable  marriage  was  not  entitled  to  claim  

inheritance in ancestral coparcenary property but  

was entitled to claim only share in self-acquired  

properties.

24. We cannot accept the aforesaid interpretation  

of  Section  16(3)  given  in  Jinia  Keotin (supra),  Neelamma (supra) and Bharatha Matha (supra) for the  reasons discussed hereunder:

25. The legislature has used the word “property” in  

Section 16(3) and is silent on whether such property  

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is meant to be ancestral or self-acquired. Section  

16 contains an express mandate that such children  

are only entitled to the property of their parents,  

and not of any other relation.  

26. On a careful reading of Section 16 (3) of the  

Act we are of the view that the amended Section  

postulates that such children would not be entitled  

to any rights in the property of any person who is  

not his parent if he was not entitled to them, by  

virtue of his illegitimacy, before the passing of  

the amendment. However, the said prohibition does  

not apply to the property of his parents. Clauses  

(1) and (2) of Section 16 expressly declare that  

such children shall be legitimate. If they have been  

declared  legitimate,  then  they  cannot  be  

discriminated against and they will be at par with  

other legitimate children, and be entitled to all  

the rights in the property of their parents, both  

self-acquired  and  ancestral.  The  prohibition  

contained  in  Section  16(3)  will  apply  to  such  

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children  with  respect  to  property  of  any  person  

other than their parents.  

27. With  changing  social  norms  of  legitimacy  in  

every society, including ours, what was illegitimate  

in the past may be legitimate today. The concept of  

legitimacy  stems  from  social  consensus,  in  the  

shaping of which various social groups play a vital  

role. Very often a dominant group loses its primacy  

over other groups in view of ever changing socio-

economic scenario and the consequential vicissitudes  

in human relationship. Law takes its own time to  

articulate such social changes through a process of  

amendment. That is why in a changing society law  

cannot afford to remain static. If one looks at the  

history of development of Hindu Law it will be clear  

that it was never static and has changed from time  

to  time  to  meet  the  challenges  of  the  changing  

social pattern in different time.

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28. The  amendment  to  Section  16  of  the  Hindu  

Marriage Act was introduced by Act 60 of 76. This  

amendment  virtually  substituted  the  previous  

Section  16  of  the  Act  with  the  present  Section.  

From  the  relevant  notes  appended  in  the  clause  

relating to this amendment, it appears that the same  

was  done  to  remove  difficulties  in  the  

interpretation of Section 16.  

29. The constitutional validity of Section 16(3) of  

Hindu Marriage Act was challenged before this Court  

and  upholding  the  law,  this  Court  in  

Parayankandiyal  Eravath  Kanapravan  Kalliani  Amma  (Smt.) & Ors. v.  K. Devi and Ors., [(1996) 4 SCC  76],  held  that  Hindu  Marriage  Act,  a  beneficial  

legislation, has to be interpreted in a manner which  

advances the object of the legislation. This Court  

also recognized that the said Act intends to bring  

about  social  reforms  and  further  held  that  

conferment  of  social  status  of  legitimacy  on  

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innocent children is the obvious purpose of Section  

16 (See para 68).

30. In paragraph 75, page 101 of the report, the  

learned judges held that Section 16 was previously  

linked  with  Sections  11  and  12  in  view  of  the  

unamended  language  of  Section  16.  But  after  

amendment,  Section  16(1)  stands  de-linked  from  

Section  11  and  Section  16(1)  which  confers  

legitimacy  on  children  born  from  void  marriages  

operates with full vigour even though provisions of  

Section 11 nullify those marriages. Such legitimacy  

has  been  conferred  on  the  children  whether  they  

were/are born in void or voidable marriage before or  

after the date of amendment.  

31. In paragraph 82 at page 103 of the report, the  

learned Judges made the following observations:

“In view of the legal fiction contained in  Section 16, the illegitimate children, for  all  practical  purposes,  including  succession  to  the  properties  of  their  parents, have to be treated as legitimate.  They  cannot,  however,  succeed  to  the  

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properties  of  any  other  relation  on  the  basis  of  this  rule,  which  in  its  operation, is limited to the properties of  the parents.”

32. It  has  been  held  in  Parayankandiyal (supra)  that Hindu Marriage Act is a beneficent legislation  

and  intends  to  bring  about  social  reforms.  

Therefore,  the  interpretation  given  to  Section  

16(3)  by  this  Court  in  Jinia  Keotin (supra),  Neelamma (supra) and  Bharatha Matha (supra) needs  to be reconsidered.

33. With the amendment of Section 16(3), the common  

law view that the offsprings of marriage which is  

void and voidable are illegitimate  ‘ipso-jure’ has  

to change completely. We must recognize the status  

of  such  children  which  has  been  legislatively  

declared  legitimate  and  simultaneously  law  

recognises  the  rights  of  such  children  in  the  

property  of  their  parents.   This  is  a  law  to  

advance the socially beneficial purpose of removing  

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the stigma of illegitimacy on such children who are  

as innocent as any other children.

34. However,  one  thing  must  be  made  clear  that  

benefit  given  under  the  amended  Section  16  is  

available only in cases where there is a marriage  

but such marriage is void or voidable in view of  

the provisions of the Act.  

35. In  our  view,  in  the  case  of  joint  family  

property such children will be entitled only to a  

share in their parents’ property but they cannot  

claim  it  on  their  own  right.  Logically,  on  the  

partition  of  an  ancestral  property,  the  property  

falling  in  the  share  of  the  parents  of  such  

children  is  regarded  as  their  self  acquired  and  

absolute property. In view of the amendment, we see  

no reason why such children will have no share in  

such property since such children are equated under  

the amended law with legitimate offspring of valid  

marriage.  The  only  limitation  even  after  the  

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amendment seems to be that during the life time of  

their  parents  such  children  cannot  ask  for  

partition  but  they  can  exercise  this  right  only  

after the death of their parents.

36. We  are  constrained  to  differ  from  the  

interpretation  of  Section  16(3)  rendered  by  this  

Court in  Jinia Keotin (supra) and, thereafter, in  Neelamma (supra) and Bharatha Matha (supra) in view  of  the  constitutional  values  enshrined  in  the  

preamble of our Constitution which focuses on the  

concept of equality of status and opportunity and  

also  on  individual  dignity.  The  Court  has  to  

remember that relationship between the parents may  

not be sanctioned by law but the birth of a child  

in such relationship has to be viewed independently  

of the relationship of the parents. A child born in  

such relationship is innocent and is entitled to  

all the rights which are given to other children  

born in valid marriage. This is the crux of the  

amendment  in  Section  16(3).  However,  some  

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limitation on the property rights of such children  

is still there in the sense their right is confined  

to  the  property  of  their  parents.  Such  rights  

cannot  be  further  restricted  in  view  of  the  pe-

existing common law view discussed above.  

It is well known that this Court cannot interpret a  

socially beneficial legislation on the basis as if  

the  words  therein  are  cast  in  stone.   Such  

legislation  must  be  given  a  purposive  

interpretation to further and not to frustrate the  

eminently desirable social purpose of removing the  

stigma  on  such  children.  In  doing  so,  the  Court  

must have regard to the equity of the Statute and  

the  principles  voiced  under  Part  IV  of  the  

Constitution, namely, the Directive Principles of  

State  Policy.   In  our  view  this  flows  from  the  

mandate of Article 37 which provides that it is the  

duty of the State to apply the principles enshrined  

in Chapter IV in making laws.   It is no longer in  

dispute   that   today   State  would  include  the  

higher  judiciary  in  this  country.   Considering  

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Article 37 in the context of the duty of judiciary,  

Justice  Mathew  in  Kesavananda  Bharati  Sripadagalvaru v.  State  of  Kerala  and  another  [(1973) 4 SCC 225] held:

“……I can see no incongruity in holding,  when Article 37 says in its latter part  “it shall be the duty of the State to  apply these principles in making laws”,  that judicial process is ‘State action’  and that the judiciary is bound to apply  the  Directive  Principles  in  making  its  judgment.”

38. Going by this principle, we are of the opinion  

that Article 39 (f) must be kept in mind by the  

Court while interpreting the provision of Section  

16(3) of Hindu Marriage Act.  Article 39(f) of the  

Constitution runs as follows:

“39.Certain  principles  of  policy  to  be  followed by the State: The State shall, in  particular,  direct  its  policy  towards  securing- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) that children are given opportunities  

and facilities to develop in a healthy  25

manner  and  in  conditions  of  freedom  and  dignity  and  that  childhood  and  youth  are  protected  against  exploitation  and  against  moral  and  material abandonment.”

39. Apart  from  Article  39(f),  Article  300A  also  

comes into play while interpreting the concept of  

property rights. Article 300A is as follows:

“300A.  Persons not to be deprived of  property save by authority of law: No  person  shall  be  deprived  of  his  property  save  by  authority  of  law.”

40. Right to property is no longer fundamental but  

it  is  a  Constitutional  right  and  Article  300A  

contains a guarantee against deprivation of property  

right save by authority of law.

41. 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  

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will have a right to whatever becomes the property  

of their parents whether self acquired or ancestral.  

42. For  the  reasons  discussed  above,  we  are  

constrained to take a view different from the one  

taken  by  this  Court  in  Jinia  Keotin (supra),  Neelamma (supra)  and  Bharatha  Matha (supra)  on  Section 16(3) of the Act.   

43. We  are,  therefore,  of  the  opinion  that  the  

matter should be reconsidered by a larger Bench and  

for that purpose the records of the case be placed  

before the Hon’ble the Chief Justice of India for  

constitution of a larger Bench.

.......................J. (G.S. SINGHVI)

.......................J. New Delhi (ASOK KUMAR GANGULY) March 31, 2011

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