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Case Number

Second Appeal No. 264 of 1991

Attorney(S)

Ms. Archana Kololgi instructed by T.S Ingale
G.S Godbole

Judges

D.B Bhosale, J.

Acts

SECTION 16 HINDU MARRIAGE ACT 1955

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Smart Summary

Summary of Opinion

Factual and Procedural Background

This second appeal challenges the judgment and order dated 30-10-1990 of the 3rd Additional District Judge, Kolhapur, by which Regular Civil Appeal No. 421 of 1985 (filed by respondent No. 1 / plaintiff) was allowed and the trial Court's decree and judgment dated 30-9-1985 (dismissing Regular Civil Suit No. 61 of 1979) was set aside.

The original suit was filed by respondent No. 1 seeking partition and separate possession of one half share in the suit properties. The trial Court dismissed the suit for non-joinder of Sonabai (the plaintiff's mother). In the appeal the plaintiff applied to amend the plaint to add Sonabai as defendant No. 9; that amendment was allowed and Sonabai was added as defendant No. 9. That amendment order was not challenged in this appeal.

The present appeal confined its challenge to the extent of the share allotted to the appellants by the appellate Court. The dispute concerns the allocation of Maruti's 1/3rd share in the ancestral coparcenary property. Relevant family relationships (as admitted in the opinion): Maruti (defendant No.1) had two wives — Sonabai (defendant No.9, first wife) and Housabai (defendant No.2, second wife). Housabai had two sons, Suresh (defendant No.3) and Subhash (defendant No.4). Sonabai had one son, Shrikant (the plaintiff), and a daughter, Rekha. It is admitted that Maruti, Shamrao (defendant No.5) and Pandurang (defendant No.6) were each entitled to 1/3rd share in the ancestral coparcenary property. Suresh and Subhash are described in the opinion as children of a void/illegal marriage between Maruti and Housabai.

Legal Issues Presented

Whether Suresh and Subhash (children of Maruti by a void/illegal marriage) are entitled to claim inheritance in the ancestral coparcenary property on a par with Maruti, Sonabai and Shrikant.
Whether the appellate Court erred in allotting a 1/3rd share of Maruti's 1/3rd share to the plaintiff (Shri Shrikant), given the composition of Maruti's family.

Arguments of the Parties

Appellants' Arguments (as summarized in the opinion)

Ms. Kololgi, counsel for the appellants, confined the challenge to the share allocated by the appellate Court and argued that, considering the number of members in Maruti's family, the plaintiff would not be entitled to more than 1/5th share in Maruti's 1/3rd share. In substance she contended that Suresh and Subhash are entitled to share equally along with Maruti, Sonabai and Shrikant in Maruti's 1/3rd share.

Respondents' Arguments (as summarized in the opinion)

Mr. Godbole, counsel for the respondents, relied on the Supreme Court judgment in Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 to contend that defendant Nos. 3 and 4 (Suresh and Subhash) are not entitled to claim inheritance in the ancestral coparcenary property because they are children of a void/illegal marriage. Accordingly, the appellate Court was correct in allotting 1/3rd share each to Maruti, Sonabai and Shrikant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730	The Supreme Court's exposition that while Section 16 of the Hindu Marriage Act treats children born of void/voidable marriages as legitimate for many purposes, its application in respect of succession or inheritance is confined to the properties of the parents; it does not confer broader inheritance rights (including in ancestral coparcenary property) beyond what sub‑section (3) of Section 16 specifies.	The court applied Jinia Keotin to reject the appellant's contention that Suresh and Subhash could claim equal shares in the ancestral coparcenary property; rather, they are entitled only to a share in Maruti's portion and that entitlement arises after Maruti's death.

Court's Reasoning and Analysis

The Court began by isolating the dispute to Maruti's 1/3rd share in the ancestral coparcenary property (the plaintiff sought partition from that 1/3rd). It set out the family genealogy and noted the admitted entitlement of Maruti, Shamrao and Pandurang to 1/3rd each of the coparcenary property.

The Court considered the appellants' contention that Suresh and Subhash (sons of Maruti by a second wife from a void/illegal marriage) should share equally with Maruti, Sonabai and Shrikant in Maruti's 1/3rd share. In response, the Court relied on the decision in Jinia Keotin (supra), which interpreted Section 16 of the Hindu Marriage Act and held that, although children of a void/voidable marriage may be treated as legitimate for many purposes, succession or inheritance rights under Section 16 are confined to the properties of the parents and do not extend to confer broader rights (such as claiming a share in ancestral coparcenary property) beyond the statute's express terms.

Applying Jinia Keotin, the Court concluded that Suresh and Subhash were not entitled to claim inheritance in the ancestral coparcenary property during Maruti's lifetime; they would be entitled only to a share in Maruti's 1/3rd share and that entitlement would operate after Maruti's death. Consequently, the Court found no reason to interfere with the findings of the Courts below that the plaintiff was entitled to a 1/3rd share of Maruti in the ancestral coparcenary property.

The Court then addressed an intervening factual development: Maruti died during the pendency of the appeal. The Court applied the succession principle announced earlier to the present facts and determined the devolution of Maruti's interest accordingly.

Holding and Implications

Core Holding: The court upheld the appellate Court's allocation that the plaintiff is entitled to a 1/3rd share of Maruti in the ancestral coparcenary property, and held that Suresh and Subhash (children of the second, void/illegal marriage) are not entitled to claim inheritance in the ancestral coparcenary property during Maruti's lifetime but are entitled to a share in Maruti's portion only after his death.

Consequences and immediate effects on the parties:

Because Maruti died during the appeal, Maruti's 1/3rd share in the ancestral coparcenary property devolves upon Sonabai, Shrikant, Rekha, Suresh, Subhash and Sanju. The Court determined that each of these six persons is entitled to a 1/6th share in Maruti's 1/3rd share.
Sonabai and Shrikant will receive this additional 1/6th share in Maruti's 1/3rd share in addition to the 1/3rd share each had already been allotted by the appellate Court.
The appeal was disposed of with no orders as to costs.

Final Disposition: The appeal stands disposed of.

Order accordingly.

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Maruti Rau Mane Since Deceased Through Lrs. Housabai Maruti Mane And Others v. Shrikant Maruti Mane And Others

This second appeal is directed against the judgment and order dated 30-10-1990 rendered by the 3rd Additional District Judge, Kolhapur by which Regular Civil Appeal No. 421 of 1985 filed by respondent No. 1 - plaintiff was allowed and the decree and judgment passed by the trial Court dated 30-9-1985, dismissing Regular Civil Suit No. 61 of 1979 came to be set aside.

2. The suit was filed by respondent No. 1 for partition and separate possession of one half share in the suit properties. The trial Court dismissed the suit for non joinder of Sonabai, the mother of the plaintiff, as party in the suit. It appears that in the appeal the plaintiff-appellant made an application for amendment of the plaint seeking permission to add Sonabai as party defendant in the suit and the said application was allowed and accordingly she was added as defendant No. 9 in the suit. This order of amendment was not challenged either at that stage or even in the present appeal.

3. Ms. Kololgi, learned counsel for the appellants fairly stated that she has instructions to confine the challenge in the instant appeal only to the extent of share allotted to the appellants by the appeal Court. She submitted that looking to the number of members of Maruti's family, the plaintiff would not be entitled for more than 1/5th share in the ⅓rd share of Maruti. In other words, the appellate Court has committed grave error of law in allotting ⅓rd share to the plaintiff out of ⅓rd share of Maruti. She did not raise any other contention.

4. To appreciate the submissions of Ms. Kololgi it would be necessary to reproduce a geneology to bring forth the relationships of the parties so as to find out whether the shares determined by the appeal Court are correct and warrant interference by this Court. The geneology reads thus:

5. There is no dispute that Maruti - defendant No. 1, Shamrao-defendant No. 5 and Pandurang-defendant No. 6 were entitled for ⅓rd share each in the ancestral coparcenary property. The plaintiff sought partition and separate possession of his share out of ⅓rd share of Maruti. Therefore, in the present appeal we are concerned only with the ⅓rd share of Maruti in the ancestral coparcenary property of the joint family concerning of all the parties to the suit. Maruti had two wives, Sonabai-defendant No. 9 and Housabai-defendant No. 2. Housabai, the second wife has two sons, that is, Suresh-defendant No. 3 and Subhash-defendant No. 4, whereas Sonabai-defendant No. 9, the first wife of Maruti, has one son-Shrikant, the plaintiff in the present suit and daughter-Rekha. It is against these admitted facts Ms. Kololgi, learned counsel for the appellants submitted that Suresh and Subhash are also entitled to have shares in the ⅓rd share of Maruti and the appellate Court has failed to consider their share while allotting ⅓rd share in ⅓rd share of Maruti to the plaintiff. In other words, Suresh and Subhash are also entitled for equal shares with Maruti, Sonabai and Shrikant. On other hand Mr. Godbole, learned counsel for the respondents invited my attention to the judgment in Jinia Keotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 to contend that defendant Nos. 3 and 4 are not entitled to claim inheritance in ancestral coparcenary property and in view thereof the appellate Court has rightly allotted ⅓rd share each to Maruti, Sonabai and Shrikant. Admittedly, Suresh and Subhash are the sons of Housabai, the 2nd wife of Maruti and in view thereof they are the children of void/illegal marriage of Maruti and Housabai.

6. The Apex Court in Jinia Keotin (supra) was dealing with the contention that once the children born out of void and illegal marriage have been specifically safeguarded under section 16 of the Hindu Marriage Act, 1955 (as amended by Central Act 68 of 1976), there is no justification to deny them equal treatment on a par with the children born of the wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. While rejecting the contention, the Supreme Court observed that section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though 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. The Supreme Court further observed “that though section 16 was enacted to legitimize children, who would otherwise suffer by becoming illegitimate, at the same time, in view of an express mandate of the legislature itself under sub-section (3), 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 amount to Court relegislating on the subject under the guise of interpretation, against even the Will expressed in the enactment itself. In view of the law laid down by the Apex Court in the aforesaid terms the submission of Ms. Kololgi, learned counsel for the appellant that Suresh and Subhash, the children of the second wife, are also entitled to equal share with Maruti, Sonabai and Shrikant must be rejected. Suresh and Subhash will be entitled for share only in the ⅓rd share of Maruti in his ⅓rd share in the ancestral coparcenary property and that too only after his death. In the circumstances, I find no reason to interfere with the findings recorded by the Courts below holding that the plaintiff is entitled for ⅓rd share of Maruti in ancestral coparcenary property.

7. During pendency of the instant appeal Maruti died. In view thereof ⅓rd share of Maruti in his ⅓rd share in the ancestral coparcenary property will devolve upon Sonabai, Shrikant, Rekha, Suresh, Subhash and Sanju and they all will be entitled for 1/6th share each in ⅓rd share of Maruti in his ⅓rd share in the ancestral coparcenary property. In the circumstances Suresh-defendant No. 3, Subhash-defendant No. 4 and their sister - Sanju will be entitled to 1/6th share each in ⅓rd share of Maruti in his ⅓rd share in the ancestral coparcenary property. Similarly Shrikant - original plaintiff, Sonabai-defendant No. 9 and Rekha will also be entitled for 1/6th share each in ⅓rd share of Maruti in his ⅓rd share in the ancestral coparcenary property. Sonabai and Shrikant will be entitled to this 1/6th share in addition to ⅓rd share each allotted to them by the appeal Court. The appeal, accordingly, stands disposed of with no orders as to costs.