(The Chief Justice):
1. This appeal by defendants 1 to 3 arises from a suit for partition and rendition of accounts instituted by the first two respondents. There was one Sivanupandian, who dies on 9th January, 1966, leaving his three wives, who were sisters, namely, Sivagnanavadivu Nachiar, fifth defendant—fourth respondent and Rajeswari, who is not a party. By the first marriage Sivanupandian had two sons, Shanmughanathan and Mahendravarman, defendants 2 and 3—appellants 2 and 3, and a daughter Padmavathi, the fourth defendant who is the third respondent. She died leaving her husband and a minor son. By the second marriage with Gomathi Nachiar, there was no issue and by the third, Sivanupaadtyan had two sons, Krishnakantan and Rajasimbam, plaintiffs 1 and 2, who are respondents 1 and 2. There was some trouble about the validity of the third marriage and, on a petition by Rejeswari, the third marriage was, 10th January, 1968, declared in O.P No. 73 of 1966 as null and void because of the two other subsisting marriages and of the prohibition contained in the Hindu Marriage Act, 1933. But, at the same time, respondents 1 and 2 were legitimized by the court order. We may mention that the petition for declaration of nullity was itself filed after the death of Sivanupandian. On 28th August, 1968, the suit out of which the appeal arises was instituted for partition and separate possession of 1/5th share for each of the plaintiffs in the joint family properties, 1/6th share each in the properties of the father and 1/60th share each in the properties of the fifth defendant. So far as the last claim is concerned, that was based on a compromise decree in O.S No. 33 of 1966. Respondents 1 and 2 have obtained a decree on that basis and there is no dispute before us about it. The only complaint in this matter is that, though in the judgment respondent 4 has been declared to be entitled to 1/60th share and to the relief she prayed for, that has not been embodied in the decree by the court below. This was apparently a mistake and we direct that this part of the direction in the judgment of the trial court should be carried out in the decree.
2. On a construction of S. 16 of the Hindu Marriage Act 1953, the court below held that respondents 1 and 2 were entitled to a decree as prayed for by them. That is how the appeal before us arises, which turns on the proper construction of that section. The court below was of the view that the effect of S. 16 is that on legitimization, it would relate back to the date of birth of respondents 1 and 2 and that as such, they would be entitled to a share in the joint family properties along with the legitimate sons.
3. We are unable to accept this construction because it totally overlooked the effect of the proviso to S. 16. But for the proviso, the view of the court below would be fight. When the Section directs that on a decree of the nullity of the marriage, the children born of such marriage shall be deemed to be legitimate children notwithstanding the decree of nullity, we have to take it that legitimization will have effect from the birth of the children. Any other view will be odd, for, a child cannot be illegitimate for a period and legitinate for a subsequent period of his life. But having made it clear that the children born of such marriage would be regarded as legitimate children, notwithstanding the decree for nullity, which would otherwise have the effect, because of the relation back principle, of enabling such children to line up along with the other legitimate children for purposes of succession, the right of such children to inherit should be limited and confined to the interests of their parents. The effect of the proviso is to so limit the logical result of legitimazation with relation back to the date of birth. The proviso for bide conferment of any right on the legitimatized child in the property of any person other than the parents, where, but for the passing of the 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. In other words, if S. 16 were not there, the result of declaring the marriage as nullity would be to regard the children born of such marriage as illegitimate in which case, they would not be entitled to any share at all in the property of the father, or to inherit any other property. But because of the legitimization they should be regarded as legitimate sons born of the marriage declared void. But, in that case, the policy of S. 16 taken along with proviso appears to be not to enable such child to have the full rights of legitimate tons. So, it follows in this cast that since the father Sivaanupandian died as early as on 9th January, 1966, defendants 2 and 3, who were coparceners at the time, would have taken their share, each 1/3rd, and the father's share on his death would be the remaining 1/3rd. The right to succeed under S. 8 of the Succession Act of the legitiminized sons is restricted to the intereste of the father. The result is that each of the plaintiffs would be only entitled to a 1/6th share in the 1/3rd share of the father in the joint family properties. There will be a decree accordingly.
4. Mr. Kesava Iyengar for the appellants denies that respondents 1 and 2 would be entitled to even that share we have decreed. His contention is that the legitimization decree would take effect only from its date and the principle of relation back cannot apply to such a case, we are unable to accept this contention as correct. Once the Section directs that the children born of marriage declared to be void shall be deemed to be legitimate children, notwithstanding the decree of nullity, there would be no boggling about the deeming provision and we should take it as a fact that they were legitimate from their birth.
5. The appeal is therefore allowed to the extent we have indicated. No costs.
6. The petitions are ordered.
V.C.S