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Case Analysis: Sarojamma v/s Neelamma

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 Basavarajappa?
  • Whether the appellants are entitled to receive a share in the ancestral property of Kuruvathi Basavarajappa?
  • What order or decree is to be passed?
Rules Involved

Section 6 of the Hindu Succession Act, 1956[1]

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.

Explanation 1- 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.

Explanation 2- 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 parents.

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;

Analysis
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[2] 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)[3] 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)[4] 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)[5] 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[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[7] 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 invalid.

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 time.

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[8]

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 or not.

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.[9]

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 And Ors[10]

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.[11]

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[12] 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 legitimate child.

Revansiddappa V. Mallikarjun[13]

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.

Legislative Approach
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 court.

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[14]

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 judicial judgements.

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.[15] 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[16] 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 voidable marriage.

End-Notes:
  1. Prior to Hindu Succession (Amendment) Act, 2005
  2. Section 5 of the Hindu Marriage Act, 1955
  3. Section 16(1) of the Hindu Marriage Act, 1955.
  4. Section 16(2) of the Hindu Marriage Act, 1955.
  5. Section 16(3) of Hindu Marriage Act, 1955.
  6. Section 6 of the Hindu Succession Act, 1956.
  7. Hindu Succession (Karnataka Amendment) Act, 1990.
  8. Rasala Surya Prakashrao v. Rasala Venkateshwararao, AIR 1992 AP 234
  9. G Nirmala and Ors. v. G Seethapathi and Ors., AIR 2001 AP 104.
  10. Parayankandiyal Eravath Kanapravan Kalliant Amma (Smt) and Ors. v. K. Devi and Ors, AIR 1996 SC 1963.
  11. S P S Balasubramaniyam v. Suruttayan and Ors., AIR 1992 SC 756.
  12. Section 144 of Indian Evidence Act, 1872.
  13. Revansiddappa and Ors. v. Mallikarjun and Ors., (2011) 11 SCC 1.
  14. Section 6 of the Hindu Succession Act, 1956 prior to the 2005 amendment.
  15. Bharath Mata v. R. Vijaya Renganathan, (2010) 11 SCC 483.
  16. Section 144 of Indian Evidence Act, 1872.

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