Sarojamma v/s. Neelamma:
This present case the plaintiff is the 2nd wife of Kuruvathi Basavarajappa who
had two sons who are plaintiff number 2 and 3 in this present case. The question
in this present case is that about the inheritance of the ancestral property of
Kuruvathi Basavarajappa. Since the marriage of the appellant was adjudged to be
a void marriage in the eyes of law as a lawfully wedded wife of Kuruvathi
Basavarajappa was still alive the court below held that the children born out
the marriage of the appellant are illegitimate child and hence are not eligible
to inherit the ancestral property of Kuruvathi Basavarajappa.
Aggrieved by this judgement the appellant chose to appeal the judgement in the
High Court of Karnataka claiming 42/100th share of the property.
Case Name: Sarojamma and Ors. vs. Neelamma and Ors.
Court: High Court of Karnataka
Hon’ble Judges: P. Vishwanath Shetty And S. Abdul Nazeer, JJ.
Decided On: 08.07.2005
Case Citations: 2005 (5) KarLJ 66; ILR 2005 KARNATAKA 3293.
Issues In Question
The High Court of Karnataka mainly framed issues namely:
- Whether the appellant is the legally wedded wife of Kuruvathi
- Whether the appellants are entitled to receive a share in the ancestral
property of Kuruvathi Basavarajappa?
- What order or decree is to be passed?
Section 6 of the Hindu Succession Act, 1956
When a male Hindu dies after the commencement of this Act, having at the time of
his death an interest in a Mitakshara coparceners property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparceners and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class
who claims through such female relative, the interest of the deceased in the
Mitakshara coparceners property shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship.
For the purposes of this section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that would
have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim
partition or not.
Nothing contained in the proviso to this section shall be
construed as enabling a person who has separated himself from the coparceners
before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.
Section 16 of the Hindu Marriage Act, 1955
Notwithstanding that marriage is null and void under section 11, any child of
such marriage who would have been legitimate if the marriage had been valid,
shall be legitimate, whether such child is born before or after the commencement
of the Marriage Laws (Amendment) Act, 1976 (68 of 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.
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.
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
Section 11 of Hindu Marriage Act, 1955
Any marriage solemnised 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 clauses (i) , (iv) and (v) of section 5.
Section 5(i) of the Hindu Marriage Act, 1955
Conditions for a Hindu marriage. A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:
neither party has a spouse living at the time of the marriage;
Issue No 1:
The 1st question is whether the marriage of the appellant and Kuruvathi
Basavarajappa is valid in law. The High Court ruled that the marriage was
invalid in law as there was already a legal marriage of Kuruvathi Basavarajappa
persisting at that point of time.
Section 11 of the Hindu Marriage Act states that any marriage which is against
the provisions of sub-section (i), (iv) and (v) of Section 5 of the Hindu
Marriage Act shall be deemed to be void in law. Section 5(i) of the Hindu
Marriage Act states that a marriage shall be declared void if any party to the
marriage has a living spouse at the time of the 2nd marriage. In this present
case since Kuruvathi Basavarajappa already had a legally wedded wife at the time
of his marriage with the appellant therefore the marriage of the appellant was
adjudged to be void by the Trial Court. The High Court of Karnataka was also of
the same understanding of the law regarding issue 1 and hence stated that the
order related to the legality of the marriage of the appellant was perfectly
correct and did not warrant the High Court’s interference.
Issue No 2:
This is the major issue that the court has to decide on as to whether the child
born out of the marriage between the appellant and Kuruvathi Basavarajappa are
entitled to the ancestral property of Kuruvathi Basavarajappa.
In deciding this issue, the court had to delve into Section 16 of the Hindu
Marriage Act. This particular section in sub-section (1) states that if a
child which is born out a marriage which is declared void under Section 11 of
the Hindu Marriage Act or a decree off nullity has been granted under Section 12
is conferred with the status of a legitimate child, though in normal
circumstances the child would have been considered as an illegitimate child.
Section 16(2) of the Hindu Marriage Act says that if any child is begotten or
conceived before the decree of a nullity is made then such child should be
considered to be a legitimate one if the marriage would have been legitimate.
Section 16(3) of the Hindu Marriage Act states that the illegitimate child in
this particular case will not be able to inherit any other property of any
person but only the property of his parents.
The issue now in front of the court was whether the term ‘property of any
person’ include ancestral properties. To solve this issue the court went into
Section 6 of the Hindu Succession Act, 1956 which states that if a male hindu
dies who at the time of his death had an interest in a Mitakshara coparcenary
property then his interest in the property shall devolve by survivorship to the
surviving members of the coparcenary and not in accordance with the act.
But the proviso of Section 6 states that if a female relative who is in Class I
of the Schedule in the act or if any male member who is claiming the property
through a female representative then inheritance shall be done on the basis of
testamentary or intestate succession, as the case maybe or under the act. The
explanation to the said section states that the interest of a Hindu Mitakshara
coparcener shall be deemed to have the share in the property that would have
been allotted to him if the partition had to take place just before his death
irrespective of whether he was entitled to the partition or not.
Therefore, if a Hindu male dies intestate his class I heir should be entitled to
inherit his interest in the property as if the partition was to take place just
before his death. Section 6-A of the act is also very much relevant in this
present case which was brought about by the way of Karnataka amendment which
basically states that in a Joint Hindu Family governed by Mitakshara, the
daughter of a coparcener shall become a coparcener by birth and shall have all
the rights of a coparcener.
Under these circumstances the court chose to go for a purposive interpretation
and held that the main purpose of Section 16(1) and Section 16(2) is to confer
the property to an illegitimate child of its parents whose marriage has been
declared to be void.
The High Court of Karnataka came out with a view that it should not make a
difference if a property is a self-acquired property or a Joint Family Property
and once the child is conferred the status of a legitimate child as already
conferred under Section 16(1) and Section 16(2) of the Hindu Marriage Act then
such child should have all the right as in par with any other legitimate child
born in the marriage. Hence since the children in this present case are
conferred the status of a legitimate child therefore, they should be able to
inherit the interest of the parents in the ancestral property.
Hence the court in this case gave a very liberal interpretation to Section 16(1)
and Section 16(2) of the Hindu Marriage Act as they only tries to give the
benefit to the children who are born out of a marriage which is declared void or
Hence through the way of this judgement the High Court of Karnataka put a
landmark judgement in the plethora of judgement where the child born out of a
marriage which is declared to be null and void eligible to inherit the
properties of its parents.
Issue No 3:
The 3rd issue is regarding as to what order has to be passed so that the ends of
justice meets. The courts following its observations ruled that the appellants
who are striving to get a share in the ancestral property of the deceased
Kuruvathi Basavarajappa shall be entitled to a share of 2/9th in the suit
scheduled property. The court also gave a time limit of 6 months to the trail
court to do the final stage of the case as the case was a case of 1996 and it
was of no use to keep such a case in a disputed manner for such a long period of
Judicial Approach In Previous Judgements
This issue has been in issue in various other judgements such as:
Rasala Surya Prakashrao And Ors. V. Rasala Venkateswararao
In this judgement the High Court of Karnataka Section 16 was looked at depth and
when the issue of a sudra illegitimate child’s inheritance issue came into play.
The High Court of Karnataka at that point of time also had a very similar view
to the judgement in this present case where the court said that since by the
virtue of Section 16(1) a child which is born out of the marriage of a void
marriage is considered to be a legitimate child, then the right of inheritance
of the property is also with the child in question. The court went ahead to also
said that after the amendment of 1976, an illegitimate child can be equated
with a legitimate child and hence can be treated as a coparcener for the
properties held by the father whether the properties belong to the joint family
The only restriction put is that an illegitimate child cannot ask for the
partition of a coparcenary property during the life time of his father, and thus
he con only seek such partition after the death of the father.
G Nirmala And Ors. V. G Seethapathi And Ors.
In this judgement the court a same view was taken as in Rasala Surya Prakashrao
(supra) and held that even an illegitimate child could inherit the properties of
a father. It said that Section 16 of the Hindu Marriage Act has conferred on an
illegitimate child all the benefits of a legitimate child and thus his
pre-existing rights are in no way curtailed and he becomes a formal member of
the family and also has the status of a legitimate child by which he is entitled
to the right of inheritance through survivorship.
Parayankandiyal Eravath Kanapravan Kalliant Amma (Smt) And Ors. V. K. Devi
The Supreme Court in the year 1996 has already settled the issue in this
particular law by using the purposive rule of interpretation. It commented that
Section 16 in itself contains a legal fiction. It is by the rule of fiction
juris that the legislature has provided the child who are illegitimate be
treated a as a legitimate child notwithstanding the marriage is void or voidable.
The court in the view of Section 16 of the Hindu Marriage Act laid down that for
all practical purposes such as succession and others the illegitimate child has
to be perceived as a legitimate child. They cannot, however, succeed to the
properties of any other relation on the basis of this rule, which in its
operation, is limited to the properties of the parents."
S P S Balasubramaniyam V. Suruttayan And Ors.
In this particular judgement it was very specifically said that if a man and a
woman are living under the same roof and cohabiting with each other for a long
period of time then under Section 144 of the Indian Evidence Act, the courts
have to presume that the man and the wife was living as husband and wife and
thus the child born out of the marriage of such cohabitation will not be treated
as a an illegitimate child. Once the child is given the status of a legitimate
child then he shall be entitled to the properties of its parents like any other
Revansiddappa V. Mallikarjun
In this present case the Supreme Court expounded on the core of the change in
Section 16(3). The court iterated that the Court needs to recollect that
connection between the guardians who may not be authorized by law but rather the
introduction of a youngster in such relationship must be seen autonomously of
the relationship of the guardians and such youngster should be given the rights
of the other youngster conceived in a substantial marriage.
The court held that there was no restriction provided by Section 16(3) of the
Hindu Marriage Act and such child would have rights to whatever property owned
by its parents being it self acquired property or ancestral property.
Hence by the way of this judgement, under Hindu Law the ill-conceived kids are
regarded to be honest to goodness and are allowed a privilege to acquire the
property of their folks.
The Indian legislature has very much acted to protect the right of an
ill-conceived child when it comes to the issue of inheritance.
Some of the legislations that are the legislature has provided us with in the
matter of this issue are:
Section 16 of the Hindu Marriage Act, 1955
This particular section is a section which is of a very beneficial nature when
it is considered for the inheritance issue of the illegitimate child.
Sub-section (1) that any child which is born in a marriage which is declared to
be void under Section 11 of the Act shall be legitimate, who would have been
legitimate if particular marriage would have been valid in the eyes of law
irrespective of the child being born after the Marriage Laws (Amendment) Act,
1976. This particular law gives an ill-conceived child a status of legitimacy by
which he claims in the property of his parents.
Sub-section (2) states that if a child has been conceived before the passage of
a decree in respect to a voidable marriage under Section 12 then such child
should be given the status of a legitimate child, if such child would have been
legitimate child if the decree had dissolved the marriage in place of annulling
the marriage. This legislation gives safe guard to the child who are born in a
voidable marriage and such marriage has been annulled by the decree of the
Sub-section (3) is a place where a restriction has been put in play for the
children who are bonn in a marriage which is void by the virtue of Section 11 or
is voidable by the virtue of Section 12 and a decree for annulling the marriage
has also been passed. This specific legislation states that the child would get
the status of a legitimate child by the virtue of sub-suction (1) and
sub-section (2) shall be only be able to inherit the properties of the parents
and not anyone else. Here is where the courts of the country had to interfere
and state that this property of the parents includes the self-acquired
properties as well as the ancestral properties.
Hence the situation as of now is very clear that even an ill-conceived child
would be able to inherit the ancestral properties of his parents as in par with
any other legitimate child and would also be a part of the coparcenary.
Section 6 of the Hindu Succession Act, 1956
This particular legislation before the 2005 amendment to the Hindu Succession
Act said that if a male member of a family dies who has in interest in a
Mitakshara coparcenery property then his interest shall be given to the
surviving members of the coparcenary as per the concept of survivorship. But the
proviso of the same act also states that if there is surviving female relative
specified in class 1 of the Schedule or any male relative in such specified
class who claims such property through a female relative then in such a case the
property should be distributed by the theory of intestate succession and not by
the theory of survivorship.
Now when this law is read with Section 8 of the Hindu Succession Act, 1956 which
provides the general rule for succession in case of male members it is seen that
the son is a part of a Schedule 1 who is supposed to inherit such property and
since the an ill-conceived child is given the status of a legitimate child then
such child should be allowed to inherit such property of its parents.
Suggestions For Improvement
According to me a child which is born out of a marriage which is void or
voidable should be able to inherit the ancestral property of his parents. The
major issue is reading the law being specific on the point of inheritance of
ancestral property of an ill-conceived child.
The law i.e. Section 16 of the Hindu Marriage Act, 1955 though it gives the
status of legitimacy to the child born out of a void marriage or voidable
marriage in which the decree of nullity has not been passed before conceiving
the child is very grey as because in sub-section (3) it specifically says that
any child who gets the legitimacy by the virtue of Section 16 shall only be able
to inherit the properties of the parents and not anyone else.
Here the issue is that the law does not specifically state anything about the
ancestral property of the parents, it is through judicial purposive
interpretation that the ancestral properties are included under the preview of
the term property of the parents. I very strongly feel that the legislature
should amend this state of law and bring the right of the ill-conceived child in
the ancestral property in the black letters of law and not by any kind of
As of now the children who are born out of the a live-in-relationship are not
able to inherit the property of the parents after a judgement passed by the
Supreme Court of India. Here I feel that the law could include the children
born out of a live in relationship as because according to the Indian Evidence
Act if a man and woman cohabit with each other for a long period of time
then it should be presumed that that both the persons are living as husband and
wife. Hence I feel that by the way of an amendment the legislature should give
the right of inheritance of an ancestral property to the child who is born in a
live in relationship and not only to the children who are born in a void or
- Prior to Hindu Succession (Amendment) Act, 2005
- Section 5 of the Hindu Marriage Act, 1955
- Section 16(1) of the Hindu Marriage Act, 1955.
- Section 16(2) of the Hindu Marriage Act, 1955.
- Section 16(3) of Hindu Marriage Act, 1955.
- Section 6 of the Hindu Succession Act, 1956.
- Hindu Succession (Karnataka Amendment) Act, 1990.
- Rasala Surya Prakashrao v. Rasala Venkateshwararao, AIR 1992 AP 234
- G Nirmala and Ors. v. G Seethapathi and Ors., AIR 2001 AP 104.
- Parayankandiyal Eravath Kanapravan Kalliant Amma (Smt) and Ors. v. K.
Devi and Ors, AIR 1996 SC 1963.
- S P S Balasubramaniyam v. Suruttayan and Ors., AIR 1992 SC 756.
- Section 144 of Indian Evidence Act, 1872.
- Revansiddappa and Ors. v. Mallikarjun and Ors., (2011) 11 SCC 1.
- Section 6 of the Hindu Succession Act, 1956 prior to the 2005 amendment.
- Bharath Mata v. R. Vijaya Renganathan, (2010) 11 SCC 483.
- Section 144 of Indian Evidence Act, 1872.