SA/1115/2002 of PONNIAMMAL, Vs PACHIAMMAL @ PAVUNAYAL on 21 November 2002

1. Ponniammal2. Murugan .. Appellants

-Vs-

1. Pachiammal @ Pavunayal2. Muthayammal(person of unsound mind,.rep. by next friend1st respondent Pachiammal @Pavunayal)

3. Pachiannan .. Respondents

Second appeal against the judgment and decree dated 8-1-2002in A. S. No.25 of 2000 on the file of the Sub-Court, Bhavani, Erode Districtagainst the judgment and decree dated 3-11-1999 in O.S. No.20 of 1996 on thefile of the Additional District Munsif Court, Bhavani, Erode District.

!For appellants: Mr. A.K. Kumaraswamy

^For respondents: Mr.T.Murugamnickam for R1

The respondents 1 and 2 filed a suit for declaration of their title tothe suit properties and for recovery of possession or in the alternative, forpartition and separate possession of their 2/3 share with past and futuremesne profits against the defendants 1 and 2, the appellants herein.

2. The suit was decreed by the trial Court in favour of the plaintiffs, holding that they are entitled to entire suit properties.Aggrieved by the same, the defendants 1 and 2 filed an appeal before the lowerappellate Court, which in turn confirmed the judgment and decree passed by thetrial Court. Hence, the second appeal by the appellants/defendants 1 and 2.

3. According to the plaintiffs, they being the daughter and wife of Chinna Perumal Gounder respectively, are entitled to have declaration of titleto the suit properties, since in 1974, the said Chinna Perumal Gounder diedintestate. The defendants 1 and 2, namely, the second wife and her sonrespectively of the said Chinna Perumal Gounder, filed a suit for permanentinjunction against the plaintiffs and the same was decreed by the trial Court,but however, dismissed by the appellate Court which was confirmed by thisCourt. During the pendency of the said suit, the defendants trespassed intothe suit properties and took possession. Since it was already decided in thesaid suit that the first defendant was not the legally wedded wife of ChinnaPerumal Gounder, the defendants would not be entitled to any share.Consequently, the plaintiffs filed the present suit claiming declaration andrecovery of possession and in the alternative, they claim 2/3 share in theevent of the Court coming to the conclusion that the second defendant was bornto Chinna Perumal Gounder through the first defendant.

4. According to the defendants, the marriage between the second plaintiff and Chinna Perumal Gounder already got divorced in the year 19 71and after the divorce, the said Chinna Perumal Gounder married the firstdefendant, namely, Ponniammal and out of the said wed-lock, the seconddefendant, namely, Murugan was born. Though one other female child, by name,Chinna Akkal was born, she died later. Even though in the earlier suit, itwas decided that the marriage between Chinna Perumal Gounder and the firstdefendant was not a valid one, the second defendant would be entitled to hisshare by virtue of Section 16 of the Hindu Marriages Act.

5. The trial Court, after framing necessary issues, considered the materials placed before the Court by both parties and decreed the suit infavour of the plaintiffs. As noted above, the said finding was confirmed bythe appellate Court in the appeal filed by the defendants.

6. While assailing the judgments impugned, learned counsel appearing for the appellants/defendants would submit that after 1976 amendment in theHindu Marriages Act, as per Section 16(1) of the Act, the off-spring of a voidmarriage is declared to be legitimate and under Section 16(3) of the Act,

illegitimate children are conferred with the rights in the property of theirparents and that both the Courts have not correctly applied the said provisionof Section 16(3) to the present facts of the case. As such, there is asubstantial question of law relating to overlooking of the words employed inSection 16 of the Hindu Marriages Act by both the Courts below.

7. I have heard learned counsel for the first respondent, who alsorepresents the second respondent in view of the fact that she is of unsoundmind, on the above aspects.

8. The substantial questions of law mentioned in the memorandum ofthe grounds of second appeal are as follows:- "i. Whether the Courts below are right in holding that Section 16 of theHindu Marriages Act is only prospective, overlooking the words employed inSection 16 of the Hindu Marriages Act?

ii. Are the Courts below right in holding that on the date of death of ChinnaPerumal Gounder, the 2nd appellant was not legitimatised as a heir and assuch, the succession got opened only in the year 19 74 and not subsequently ascontended by the defendants?"

9. On going through the judgments impugned and the other records, itis clear that in the earlier suit, it was decided by the civil Court that thefirst defendant is not the legally wedded wife of Chinna Perumal Gounder, andas such, the second defendant becomes an illegitimate son of Chinna PerumalGounder. In the present suit also, both the Courts below would hold that thesecond defendant is an illegitimate son of Chinna Perumal Gounder through thefirst defendant.

10. Under those circumstances, the question to be considered is "whether the second defendant would be entitled to his share by virtue ofSection 16 of the Hindu Marriages Act?"

11. Both the Courts below, in my view, overlooked the actual meaningof the words employed in Section 16 of the Hindu Marriages Act (as amended by1976 Act) and rejected the contention of the defendants 1 and 2 with referenceto their claim for 1/3 share, merely on the ground that the amendment cameinto force only in 1976 and Chinna Perumal Gounder died in the year 1974 andthat the suit properties are joint family properties. Both these grounds arewrong. These points have been decided by the Supreme Court in RAMESHWARI DEVIVS. STATE OF BIHAR (AIR 2000 SC 735), P.E.K. KALLIANI AMMA VS. K.DEVI (AIR1996 SC 1 963) and by the Andhra Pradesh High Court in C. NIRMALAMMA VS. G.SEETHAPATHI (AIR 2001 A.P. 104).

12. In the decision of the Supreme Court reported in AIR 1996 SC 1963 (supra), it is held as follows:- "79. In view of the legal fiction contained in Section 16, theillegitimate children, for all practical purposes, including succession to theproperties of their parents, have to be treated as legitimate. They cannot,however, succeed to the properties of any other relation on the basis of thisrule, which in its operation, is limited to the properties of the parents.

80. Obviously, appellants 2 to 6 were born prior to the date on whichamendments were introduced in Section 16(1), and consequently they would,notwithstanding that the marriage between their parents had taken place at atime when there was a legislative prohibition on the second marriage, betreated as legitimate, and would, therefore, inherit the properties of theirfather, Raman Nair, under Section 16(3) of the Act."

13. A reading of the observations made in the above said decisionswould clearly indicate that an illegitimate son is entitled to enforce apartition in the property of his parents. In other words, he is entitled tothe rights of survivorship, as he becomes "co-parcener" with the legitimateson. He is a member of the family and has a status as a son and by virtue ofthat, he is entitled to the right of survivorship. Section 16 of the Act hasconferred on him the status of legitimate son and his other pre-existingrights are, in no way, curtailed. After 1976 amendment in Section 16 of theHindu Marriages Act, the benefits of Section 16 are enlarged and such benefitsare also conferred on a son of a marriage which is void under the provisionsof the Hindu Marriages Act.

14. Thus, by virtue of Section 16(1) of the Hindu Marriages Act, as amended in the year 1976, an illegitimate son can be equated with the naturalson and be treated as "co-parcener" for the properties held by the father,whether the properties be originally joint family properties or not. The onlylimitation is that during the life-time of the father, the illegitimate son ofa void marriage is not entitled to seek partition. He can seek partition onlyafter the death of his father.

15. Admittedly, in this case, there was already partition betweenChinna Perumal Gounder and his brother and the suit properties were allottedto Chinna Perumal Gounder and the same were in his exclusive possession andenjoyment. As such, the suit properties cannot be said to be joint familyproperties after such partition. The other restriction that the seconddefendant cannot claim for partition of his share when the father was alivealso does not exist, since his father died in the year 1974 itself. As amatter of fact, the plaintiffs themselves would ask for 2/3 share in the suitproperties as an alternative prayer in the suit, in the event of theconclusion by the Court that the second defendant was born to Chinna Perumal Gounder. This aspect also has been overlooked by both the Courts below and byapplying the wrong law, decree has been passed in entirety in favour of theplaintiffs, which in my view, is quite wrong.

16. Under those circumstances, the judgment and decree passed by boththe Courts below are modified to the effect that the plaintiffs together wouldbe entitled to 2/3 share in the suit properties and the second defendant wouldbe entitled to 1/3 share in the suit properties. The preliminary decree ispassed in the above terms. Thus, the second appeal is allowed. No costs.Consequently, C.M.P. No.8991 of 200 2 is closed.

Index: YesInternet: Yescs

To

1. Sub-Judge, Bhavani, Erode.2.Addl. District Munsif, Bhavani,Erode.