JUDGMENT
1. This appeal is by the first respondent in A.S 153/1983 of the District Court, Trivandrum who was the first defendant in O.S 88 of 1980 of the Munsiff's Court. The suit was one for partition and allotment of plaintiff's 1/11th share in A schedule property and 1/11th share in the one-half of plaint B schedule property. The suit was dismissed by the trial court, against which the first respondent preferred A.S 153 of 1983 before the District Court, Trivandrum. The District Court allowed the appeal and passed a preliminary decree for partition declaring that the first respondent is entitled to 1/10 share in the plaint A schedule property and 1/10 in the one-half of the plaint B schedule property. Though the share claimed in the plaint is 1/11, the lower appellate court passed a preliminary decree for 1/10 share. Para 11 of, the lower court's judgment states that, since the first respondent has applied for amending the plaint stating that the 8th respondent is not entitled to any share the appellant is entitled to 1/10. The judgment does not say that, the application for amendment was allowed; no order is seen to have been passed on I.A 315/1984 filed for the said purpose. The first respondent's case in brief was that, herself and respondents 9 and 10 are the children of deceased Bhaskaran through his second wife, the 8th respondent. The appellant is the first wife of deceased Baskaran and respondents 2 to 7 are her children. The appellant, contested the suit. She denied the marriage between Bhaskaran and the 8th respondent. She also denied the claim that the 1st respondent and respondents 9 and 10 are the children of Bhaskaran.
2. It is admitted that, the appellant is the widow of deceased Bhaskaran, and respondents, 2 to 7 are his children born to the appellant. Plaint A schedule was obtained by deceased Bhaskaran as per Ext. A1 gift deed, and B schedule was obtained under Ext. A2 sale deed which stands in the name of Bhaskaran and his wife, the appellant.
3. No where in the plaint is there an allegation as to when Bhaskaran died. The date of death of Bhaskaran is relevant in deciding as to whether the provisions of the Hindu Succession Act govern the succession to his estate. Even paragraph 9 of the plaint which contains the allegation regarding the cause of action does not mention the date of death of Bhaskaran. Since Ext. A2 sale Heed in favour of Bhaskaran and the appellant was in 1962, be could have died only after 1962. PW-1 said that Bhaskaran died 18 years ago. She was examined on 6-10-1982. Therefore Bhaskaran should have died in 1964 Consequently, the provisions of Hindu Succession Act applies.
4. Since the status of the first respondent and respondents. 8 to 10 are denied, the burden of proof is on those respondents to establish that they are the legal heirs of deceased Bhaskaran. Though the first respondent swears, that the 8th respondent was married by Bhaskaran; even according to her the 8th respondent is the second wife of Bhaskaran. Evidence regarding the said marriage is the deposition of PWs 1 and 2, and Exts. A3 and A4. The statements in Exts. A3 and A4 are relied on to substantiate the claim that deceased Bhaskaran had married the 8th respondent, and respondents 1, 9 and 10 are his children born to the 8th respondent. PW-1 being the daughter, cannot have any direct knowledge regarding the marriage. The evidence of PW-2 was not accepted by the trial court, and the first appellate court also does not make reliance on his evidence. PW-2 said that, there are records in the S.N.D.P Branch to evidence the marriage of Bhaskaran with 8th respondent. He also said that the Secretary and the President of the S.N.D.P Branch were present at the marriage and they are alive. Neither the said records were summoned, nor the said persons were examined. The trial court was not prepared to act upon the statements in Exts. A3 and A4 as evidence of marriage; but the first appellate court relied on the statements in Exts. A3 and A4 to find that the 8th respondent was married by deceased Bhaskaran.
5. Ext. A3 is a gift deed executed by the deceased father of Bhaskaran in favour of the first respondent and respondents 9 and 10. In Ext. A3 the deceased father of Bhaskaran described 8th respondent as the second wife of Bhaskaran and respondents 1, 9 and 10 his children through the 8th respondent. Since the father of Bhaskaran is no more, the aforesaid statement is relevant under Section 32(5) of the Evidence Act. Ext. A4 is a partition deed entered into by the mother of deceased Bhaskaran, her daughters, the appellant and the 8th respondent. The appellant did not sign Ext. A4, but the deceased mother of Bhaskaran and his sisters have signed the document. Though Ext. A4 may not be binding on the appellant since she did not affix her signature, it cannot be said that the statements there in can be ignored. The mother of Bhaskaran is alive and the appellate judgment states that though the appellant cited her as a witness she did not examine her inspite of the fact that she was present in court. Since the mother of Bhaskaran was alive and was available for examination, the aforesaid statement in Ext. A4 cannot be admitted in evidence under Section 32 of the Evidence Act. But such statement if properly proved can be admitted in evidence under Section 50 of the Evidence Act. As already indicated, the statement made by the father of Bhaskaran in Ext. A3 has to be given due weight. On the strength of the statement in Ext. A3 even if it is presumed that Bhaskaran married the 8th respondent, that by itself cannot confer legitimacy to respondents 1, 9 and 10 because even according to the first respondent, the 8th respondent was only the second wife of Bhaskaran.
6. The definition of “related” in Sec. 2(j) of the Hindu Succession Act, 1956 limits the meaning to legitimate kinship. Section 2(j) reads:—
“2(j) “related” means by legitimate kinship:
Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly.”
7. The proviso expands the definition. By virtue of the proviso illegitimate children can be regarded as related to the mother but not to their putative father. Therefore, if the marriage between the 8th respondent and deceased Bhaskaran was not a valid marriage, the children born to Bhaskaran in the 8th respondent would not be entitled to inherit him as illegitimate children and are not entitled to inherit their father as per the provisions of the Hindu Succession Act. As per Section 6 of the Ezhava Act, 1100 when a marriage is solemnized during the subsistance of a prior marriage, the said marriage, would be void; and Sec. 11 of the Hindu Marriage Act read with Section 5(1) also is to the same effect. Therefore, the children born to Bhaskaran in the 8th respondent are not legitimate as per the provisions of the Hindu Succession Act. But it is contended that, by virtue of Sec. 16(1) of the Hindu Marriage Act, they are legitimate for the purpose of succession to the estate of their parents. Reliance was placed on the decision reported in Janu v. Yesoda (1989 (I) K.L.T 392) in support of the said argument.
8. It is now necessary to understand the scope of Sec. 16 of the Hindu Marriage Act, 1955. Section 16 of the Hindu Marriage Act reads:—
“16. (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been vaild, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 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 under Section 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 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”.
9. It is clear from sub-section (1) of Section 16 that children born of a marriage which is void under Sec. 11 would be legitimate; but as per sub-section (2) they can inherit only their parents. Section 16(1) of the said Act can apply only if the marriage is void under Sec. 11 of the said Act. Section 11 reads:—
“11. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in class (i), (iv) and (v) of Section 5”.
(emphasis added).
10. It is clear on a reading of the said Section that the same will apply only to marriages that are solemnized after the commencement of the Hindu Marriage Act. Thus, Sec. 16(1) of the said Act will not assist children born of all void marriages; it will not assist only children born of marriages void, under Section 11. As has already been noticed, Section 11 concerns only marriages solemnized after the commencement of the Hindu Marriage Act. Therefore, it is not enough to prove that, the deceased Bhaskaran had married the 8th respondent and respondents 1, 9 and 10 are the children born to Bhaskaran in the 8th respondent, there should be allegation and proof to the effect that the marriage was solemnized after the commencement of the Hindu Marriage Act. The Hindu Marriage Act came into force on 18-5-1955. Though it is alleged in the plaint that, Bhaskaran had married the 8th respondent, no where in the plaint is there an allegation as to when Bhaskaran married the 8th respondent. Neither PW1 nor PW2 speaks as to when the marriage was solemnized. In a matter like this it is also the burden of the plaintiff to prove the date of marriage because unless it is shown that the said marriage was solemnized after the commencement of the Hindu Marriage Act, the children born out of the said relationship cannot get the benefit under Section 16(1). Para 6 of the decision reported in 1989 (1) KLT 392, referred to earlier will show that, the marriage in that case was claimed to have been solemnized in 1959. The difference between Section 11 and 12 can be seen on a plain reading of the said Sections. Whereas Section 12 will take in marriages solemnized before or after the commencement of the Hindu Marriage Act, Section 11 concerns only marriages solemnized after the commencement of the Hindu Marriage Act. There is no evidence to hold that the marriage between Bhaskaran and the 8th respondent was solemnized after the commencement of the Hindu Marriage Act. Even assuming that the statements in Exts. A3 and A4 are capable of a presumption that, Bhaskaran married the 8th respondent, there can be no presumption that, the solemnization of the marriage was on a particular day, much less after the commencement of the Hindu Marriage Act. Since, there is total lack of pleading and the proof to the effect that solemnization of the marriage between Bhaskaran and the 8th respondent was after the commencement of the Hindu Marriage Act, respondent 1, 9 and 10 cannot claim the benefit of Section 16(1) of the said Act. Since Bhaskaran died after the commencement of the Hindu Succession Act, succession to his estate is governed by the provisions in the Hindu Succession Act. Illegitimate children are not entitled to inherit as per the Hindu Succession Act, unless they fall under Section 16 of the Hindu Marriage Act. Respondents 1, 9 and 10 are not proved to be entitled to the benefit of Section 16(1). Their claim for share in the estate of deceased Bhaskaran cannot be sustained. In view of the aforesaid discussion, it is clear that the judgment and decree of the lower appellate court is liable to be set aside.
11. In the result the appeal is allowed and the judgment and decree of the lower court is set aside, and the suit is dismissed. There will be no order as to costs.