Deciphering SC Judgment On Right Of Children Born From Void/Voidable Marriage To Ancestral Property [Revanasiddappa vs Mallikarjun | 2023 INSC 783]

The Supreme Court delivered an important judgment on the right of children from void/voidable marriages to ancestral property [Mitakshara Coparcenary Property]. We attempt to decipher it with the help of an illustration:

A belongs to a joint Hindu Family. A married B. Thereafter A married C.

As per Section 11 of the Hindu Marriage Act, marriage between A and C is null and void (reason: bigamy).

Suppose A and B together have a child X. A and C together have a child Y.

Section 16(1) of the Hindu Marriage Act comes to Y’s rescue. It says Y would be considered a legitimate child of A. But there is a rider in Section 16(3). It says that this conferment of legitimacy on Y by Section 16(1) shall not be construed as conferring upon him any rights in or to the property of any person, other than the parents. In other words, this means, Y has rights in property of A and C and not of any other person.

Y contends that the property of the parent includes the share in the coparcenary property. That is once the larger coparcenary (including the father and his father, brothers, etc. is partitioned, the property must then be divided between the father and all his children, including those covered by Section 16.

X contends that the property in the hands of the father after the partition from the larger coparcenary, is still coparcenary property belonging to the father as well as the children (including X); as such, it is not the ‘property of the parent’ as per Section 16(3), HMA and thus, the children (like Y) have no right in it. According to X, the intention of the legislature was merely to erase the stigma, and not to interfere with the structure of a coparcenary which does not include the children (Y) covered by Section 16. Thus, according to X, under Section 16(3), the only right to Y is with respect to the self-acquired/ self-earned property of the parent.

Thus the core issue is whether C is entitled to the ancestral/coparcenary property of the parents or is C merely entitled to the self-earned/separate property of the parents ?

Whether Section 16 Hindu Marriage Act treats X and Y equally with respect to entitlement to ancestral property? No, the Court said. X is a coparcener by and Y is not and cannot be treated as so. We can read the answer to this question in Para 51 of the judgment: But the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub-section (2) of Section 16 of the HMA 1955, would become a coparcener by birth. On the other hand, the express language used in sub-section (3) of Section 16 of the HMA 1955 is that the conferment of legitimacy shall not be construed as conferring any rights in or to the property of any person other than the parents. As we have already noted earlier, the very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person.

Does this mean that the Supreme Court has held that Y has no right in ancestral property of A?

No. The court itself has given an illustration in Para 43 which suggests otherwise:

“Let us assume for the sake of example that there are four coparceners- C1, C2, C3, and C4. C2 has died. C2 is survived by a widow, a son, and a daughter but it so transpires that one of the children is born from a marriage which is null and void under Section 11 of the HMA 1955. C2 would have a 1/4th share in the coparcenary which consisted of him and his three brothers’ C1, C3 and C4. Now, in order to ascertain C2’s share in the property and the devolution of this shares among C2’s heirs, the Explanation mandates an assumption that a partition took place immediately before C2’s death. In such a partition, between him and his brothers, C2 gets 1/4th share in the large coparcenary comprising himself and his 3 brothers. Now, within his own branch, C2, his widow and his child born from a valid marriage would each have a 1/3rd share. In other words, in the notional partition which is deemed to have taken place in terms of the Explanation the share of C2 is ascertained at 1/3rd. In working out the devolution of interest and the distribution of property following the death of C2, C2’s 1/3rd share would be equally distributed between his widow, child born from the marriage which was valid and the child born from the marriage whose legitimacy is protected by Section 16(1) of the HMA 1955 though the marriage was null and void. In other words, such a child would have a share in the property which would be allotted to his parent (C2) if a partition had taken place immediately before the death of C2. The widow would take a 1/3rd share (her share in the notional partition) plus 1/3rd in the 1/3rd share of C2 (her share in succession, as an heir to C2). The child who was born from the valid marriage would acquire a 1/3rd share plus a 1/3rd share in C2’s 1/3rd share. The child who has the benefit of Section 16(1) of the HMA 1955 acquires a 1/3rd share in the 1/3rd share which was allotted to C2 presuming that the partition had taken place immediately before the death of C2. This child, unlike the child born out of a lawful marriage, is not entitled to a share in the notional partition itself. After the father’s share is determined in such notional partition, a child whose legitimacy is protected under Section 16(1) and 16(2) will have a share in the father’s share, along with the surviving widow and the other children. This, in our view, would be the correct and proper interpretation of the Explanation to Section 6 which mandates the assumption of a notional state of affairs namely, a partition immediately before the death of the Hindu male coparcener.”

In conclusion, the Court holds thus:

(a) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place;

(b) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above.

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