REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.
OF 2011
(Arising out of Special Leave Petition (C) No.12639/09)

Revanasiddappa & another

...Appellant(s)

- Versus Mallikarjun & others

...Respondent(s)

J U D G M E N T
GANGULY, J.

1.

Leave granted.

2.

The first defendant had two wives- the third

plaintiff (the first wife) and the fourth defendant

(the

second

wife).

The

first

defendant

had

two

children from the first wife, the third plaintiff,

namely,

the

first

and

second
1

plaintiffs;

and

another
fourth

two

children

defendant

from

his

namely,

second

the

wife,

second

and

the

third

defendant.

3.

The

plaintiffs

children)
separate
their

had

property

filed

possession

1/4th

(first

share

which

suit

with
been

and

her

two

partition

and

defendants

for

for

against

each
had

wife

the

respect
given

to

to

ancestral
the

first

defendant by way of grant. The plaintiffs contended

that

the

first

defendant

had

married

the

fourth

defendant while his first marriage was subsisting

and,

therefore,

the

children

born

in

the

said

second marriage would not be entitled to any share

in the ancestral property of the first defendant as
they were not coparceners.

4.

However,

the

defendants

contended

that

the

properties were not ancestral properties at all but

were

self-acquired

properties,

except

for

one

property which was ancestral. Further, the first

2

defendant

also

contended

that

it

was

the

fourth

defendant who was his legally wedded wife, and not

the third plaintiff and that the plaintiffs had no
right

to

claim

partition.

Further,

the

first

defendant also alleged that an oral partition had

already taken place earlier.

5.

The

Trial

Court,

by

its

judgment

and

order

dated 28.7.2005, held that the first defendant had

not been able to prove oral partition nor that he
had

divorced

marriage

the

of the

third

first

plaintiff.

defendant

with

The
the

second
fourth

defendant was found to be void, as it had been

conducted

while

his

first

marriage

was

still

legally subsisting. Thus, the Trial Court held that

the third plaintiff was the legally wedded wife of
the first defendant and thus was entitled to claim
partition. Further, the properties were not selfacquired but ancestral properties and, therefore,
the plaintiffs were entitled to claim partition of
the suit properties. The plaintiffs and the first
3

defendant were held entitled to 1/4th share each in

all the suit properties.

6.

Aggrieved,

the

defendants

filed

an

appeal

against the judgment of the Trial Court. The First

Appellate Court, vide order dated 23.11.2005, reappreciated

the

entire

evidence

on

record

and

affirmed the findings of the Trial Court that the

suit properties were ancestral properties and that
the third plaintiff was the legally wedded wife of
the first defendant, whose marriage with the fourth
defendant

was

void

and

thus

children

from

such

marriage were illegitimate. However, the Appellate

Court reversed the findings of the Trial Court that
illegitimate children had no right to a share in
the coparcenary property by relying on a judgment
of the Division Bench of the Karnataka High Court
in Smt. Sarojamma & Ors. v. Smt. Neelamma & Ors.,
[ILR 2005 Kar 3293].

7.

The

Appellate

Court

held

that

children

born

from a void marriage were to be treated at par with

coparceners and they were also entitled to the joint
family

properties

Accordingly,

the

of

the

Appellate

first

Court

defendant.

held

that

the

plaintiffs, along with the first, second and third

defendants

were

entitled

to

equal

share

of

1/6th

the

said

each in the ancestral properties.

8.

The

plaintiffs,

being

aggrieved

by

judgment of the Appellate Court, preferred a second

appeal

before

the

High

Court

of

Karnataka.

The

substantial questions of law before the High Court

were:

a) Whether the illegitimate children born out

of

void

marriage

are

regarded

as

coparceners by virtue of the amendment to

the Hindu Marriage Act, 1956?

b) At

partition

between

the

coparceners

whether they are entitled to a share in the

said properties?

9.

The High Court stated that the said questions

were no more res integra and had been considered in

the judgment of Sri Kenchegowda v. K.B. Krishnappa
& Ors., [ILR 2008 Kar 3453]. It observed that both
the lower courts had concurrently concluded that
the fourth defendant was the second wife of the
first defendant. Therefore, the second and third
defendants were illegitimate children from a void
marriage. Section 16(3) of the Hindu Marriage Act
makes it clear that illegitimate children only had
the right to the property of their parents and no
one else. As the first and second plaintiffs were
the legitimate children of the first defendant they
constituted a coparcenary and were entitled to the
suit properties, which were coparcenary properties.
They also had a right to claim partition against
the other

coparcener and thus

6

their

suit for

partition

against

maintainable.
defendants

However,

were

coparcenary

the

not

property

first
the

entitled
by

defendant

second
to

birth

and
share

but

was
third

of

were

the
only

entitled to the separate property of their father,

the first defendant. The High Court observed that
upon partition, when the first defendant got his
share

on

partition,

then

the

second

and

third

defendants would be entitled to such share on his

dying intestate, but during his lifetime they would
have no right to the said property. Hence, the High
Court allowed the appeal and held that the first
plaintiff, second plaintiff and the first defendant
would be entitled to 1/3rd share each in the suit
properties. The claim of the third plaintiff and
the second, third and fourth defendants in the suit
property was rejected.

10. As a result, the second and third defendants

(present appellants) filed the present appeal.

11. The question which crops up in the facts of

this

case

is

whether

illegitimate

children

are

entitled to a share in the coparcenary property or

whether their share is limited only to the selfacquired property of their parents under Section
16(3) of the Hindu Marriage Act?

12. Section 16(3) of the Hindu Marriage Act, 1955

reads as follows:

16. Legitimacy of children of void and

voidable marriages(1) xxx
(2) xxx
(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.
13. Thus, the abovementioned section makes it very
clear that a child of a void or voidable marriage
8

can

only

parents,

claim
and

interesting
advisedly

rights

no
to

used

to

the

property

one

else.

However,

note

that

the

the

word

we

of

his

find

legislature

property

and

it
has

has

not

qualified it with either self-acquired property or

ancestral property.

It has been kept broad and

general.

14. Prior to enactment of Section 16(3) of the Act,

the question whether child of a void or voidable
marriage is entitled to self-acquired property or
ancestral property of his parents was discussed in
a

catena

illegitimate
were

of

cases.

children

recognized

in

The
to

the

property

their
cases

rights

fathers
of

Sudras

of

property
to

some

extent.

15. In Kamulammal (deceased) represented by Kattari

Nagaya

Kamarajendra

Ramasami

Pandiya

Naicker

v.

T.B.K. Visvanathaswami Naicker (deceased) & Ors.,

[AIR 1923 PC 8], the Privy Council held when a Sudra
9

had

died

leaving

behind

an

illegitimate

son,

daughter, his wife and certain collateral agnates,

both the illegitimate son and his wife would be
entitled to an equal share in his property.

The

illegitimate son would be entitled to one-half of

what he would be entitled had he been a legitimate
issue. An illegitimate child of a Sudra born from a
slave or a permanently kept concubine is entitled to
share

in

his

fathers

property,

along

with

the

legitimate children.

16. In

P.M.A.M.

Vellaiyappa

Chetty

&

Ors.

v.

Natarajan & Anr., [AIR 1931 PC 294], it was held

that

the

illegitimate

son

of

Sudra

from

permanent concubine has the status of a son and a

member of the family and share of inheritance given
to him is not merely in lieu of maintenance, but as
a recognition of his status as a son; that where
the father had left no separate property and no
legitimate son, but was joint with his collaterals,
the illegitimate son was not entitled to demand a
10

partition

of the

joint

family

property,

but

was

entitled to maintenance out of that property. Sir

Dinshaw

Mulla,

speaking

for

the

Bench,

observed

that though such illegitimate son was a member of

the family, yet he had limited rights compared to a
son

born in

a wedlock,

and

he

had

no

right

by

birth. During the lifetime of the father, he could

take only such share as his father may give him,
but after his death he could claim his fathers
self-acquired

property

along

with

the

legitimate

sons.

17. In

Raja

Jogendra

Bhupati

Hurri

Chundun

Mahapatra v. Nityanund Mansingh & Anr., [1889-90

Indian Appeals 128], the facts were that the Raja
was a Sudra and died leaving behind a legitimate
son, an illegitimate son and a legitimate daughter
and three widows. The legitimate son had died and
the issue was whether the illegitimate son could
succeed

to

the

property

11

of

the

Raja.

The

Privy

Council held that the illegitimate son was entitled

to succeed to the Raja by virtue of survivorship.

18. In Gur Narain Das & Anr. v. Gur Tahal Das &
Ors., [AIR 1952 SC 225], a Bench comprising Justice
Fazl Ali and Justice Bose agreed with the principle
laid down in the case of Vellaiyappa Chetty (supra)
and supplemented the same by stating certain wellsettled

principles

to

the

effect

that

firstly,

that the illegitimate son does not acquire by birth

any interest in his fathers estate and he cannot
therefore

demand

partition

against

during the latters lifetime.

death,

the

coparcener

illegitimate

to the

father

But on his fathers

son

separate

his

succeeds

estate

of

the

as

father

along with the legitimate son(s) with a right of

survivorship and is entitled to enforce partition
against

the

legitimate

son(s)

and

that

on

partition between a legitimate and an illegitimate

son, the illegitimate son takes only one-half of
what he would have taken if he was a legitimate
12

son.

However, the

Bench

was

referring

to

those

cases where the illegitimate son was of a Sudra

from a continuous concubine.

19. In the case of Singhai Ajit Kumar & Anr. v.

Ujayar Singh & Ors., [AIR 1961 SC 1334], the main
question was whether an illegitimate son of a Sudra
vis--vis his self-acquired property, after having
succeeded to half-share of his putative fathers
estate, would be entitled to succeed to the other
half share got by the widow. The Bench referred to
Chapter 1, Section 12 of the Yajnavalkya and the
cases

of

Raja

Jogendra

Bhupati

(supra)

and

Vellaiyappa Chetty (supra) and concluded that once

it

is

established

that

for

the

purpose

of

succession an illegitimate son of a Sudra has the

status of a son and that he is entitled to succeed
to

his

putative

fathers

entire

self-acquired

property in the absence of a son, widow, daughter

or daughters son and to share along with them, we
cannot see any escape from the consequential and
13

logical

position

succeed

to the

that
other

he

shall

half

share

be

entitled

when

to

succession

opens after the widows death.

20. The amendment to Section 16 has been introduced

and was brought about with the obvious purpose of
removing the stigma of illegitimacy on children born
in void or voidable

marriage

(hereinafter,

such

children).

21. However, the issues relating to the extent of

property rights conferred

on

such

children

under

Section 16(3) of the amended Act were discussed in

detail in the case of Jinia Keotin & Ors. v. Kumar
Sitaram Manjhi & Ors. [(2003) 1 SCC 730]. It was
contended that by virtue of Section 16(3) of the
Act, which entitled such childrens rights to the
property

of

included

right

ancestral

their
to

property

parents,
both
of

such

property

self-acquired
the

parent.

as
This

rights
well

as

Court,

repelling such contentions held that in the light

14

of

such

an

express

mandate

of

the

legislature

itself, there is no room for according upon such

children who but for Section 16 would have been
branded

as

illegitimate

any

further

rights

than

envisaged therein by resorting to any presumptive or

inferential process of reasoning, having recourse to
the mere object or purpose of enacting Section 16 of
the Act. Any attempt to do so would amount to doing
not

only

violence

to

the

provision

specifically

engrafted in sub-section (3) of Section 16 of the

Act but also would attempt to court relegislating on
the

subject

under

the

guise

of

interpretation,

against even the will expressed in the enactment

itself. Thus, the submissions

of

the

appellants

were rejected.

22. In

our

humble

opinion

this

Court

in

Jinia

Keotin (supra) took a narrow view of Section 16(3)

of the Act.

The same issue was again raised in

Neelamma & Ors. v. Sarojamma & Ors. [(2006) 9 SCC

612], wherein the court referred to the decision in
15

Jinia

Keotin

(supra)

and

held

that

illegitimate

children would only be entitled to a share of the

self-acquired property of the parents and not to the
joint Hindu family property.

23. Same position was again reiterated in a recent

decision of this court in Bharatha Matha & Anr. v.
R. Vijaya Renganathan & Ors. [AIR 2010 SC 2685],
wherein this Court held that a child born in a void
or

voidable

marriage

was

not

entitled

to

claim

inheritance in ancestral coparcenary property but

was entitled to claim only share in self-acquired
properties.

24. We cannot accept the aforesaid interpretation

of

Section

16(3)

given

in

Jinia

Keotin

(supra),

Neelamma (supra) and Bharatha Matha (supra) for the

reasons discussed hereunder:

25. The legislature has used the word property in

Section 16(3) and is silent on whether such property
16

is meant to be ancestral or self-acquired. Section

16 contains an express mandate that such children
are only entitled to the property of their parents,
and not of any other relation.

26. On a careful reading of Section 16 (3) of the

Act we are of the view that the amended Section
postulates that such children would not be entitled
to any rights in the property of any person who is
not his parent if he was not entitled to them, by
virtue of his illegitimacy, before the passing of
the amendment. However, the said prohibition does
not apply to the property of his parents. Clauses
(1) and (2) of Section 16 expressly declare that
such children shall be legitimate. If they have been
declared

legitimate,

then

they

cannot

be

discriminated against and they will be at par with

other legitimate children, and be entitled to all
the rights in the property of their parents, both
self-acquired
contained

in

and
Section

ancestral.
16(3)
17

will

The

prohibition

apply

to

such

children

with

respect

to

property

of

any

person

other than their parents.

27. With

changing

social

norms

of

legitimacy

in

every society, including ours, what was illegitimate

in the past may be legitimate today. The concept of
legitimacy

stems

from

social

consensus,

in

the

shaping of which various social groups play a vital

role. Very often a dominant group loses its primacy
over other groups in view of ever changing socioeconomic scenario and the consequential vicissitudes
in human relationship. Law takes its own time to
articulate such social changes through a process of
amendment. That is why in a changing society law
cannot afford to remain static. If one looks at the
history of development of Hindu Law it will be clear
that it was never static and has changed from time
to

time

to

meet

the

challenges

social pattern in different time.

18

of

the

changing

28. The

amendment

to

Section

16

of

the

Hindu

Marriage Act was introduced by Act 60 of 76. This

amendment

virtually

substituted

the

previous

Section 16 of the Act with the present Section.

From

the

relevant

notes

appended

in

the

clause

relating to this amendment, it appears that the same

was

done

to

remove

difficulties

in

the

interpretation of Section 16.

29. The constitutional validity of Section 16(3) of

Hindu Marriage Act was challenged before this Court
and

upholding

Parayankandiyal

the

law,

Eravath

this

Kanapravan

Court

in

Kalliani

Amma

(Smt.) & Ors. v. K. Devi and Ors., [(1996) 4 SCC

76],

held

that

Hindu

Marriage

Act,

beneficial

legislation, has to be interpreted in a manner which

advances the object of the legislation. This Court
also recognized that the said Act intends to bring
about

social

conferment

of

reforms

and

social

status

19

further
of

held

legitimacy

that
on

innocent children is the obvious purpose of Section

16 (See para 68).

30. In paragraph 75, page 101 of the report, the

learned judges held that Section 16 was previously
linked

with

unamended

language

amendment,
Section

Sections

and

of
16(1)

and

Section

on

children

12

Section

Section

11

legitimacy

11

stands

born

16(1)
from

in

view

16.

of

But

after

de-linked
which
void

the

from

confers
marriages

operates with full vigour even though provisions of

Section 11 nullify those marriages. Such legitimacy
has

been

conferred

on

the

children

whether

they

were/are born in void or voidable marriage before or

after the date of amendment.

31. In paragraph 82 at page 103 of the report, the

learned Judges made the following observations:
In view of the legal fiction contained in
Section 16, the illegitimate children, for
all
practical
purposes,
including
succession to the properties of their
parents, have to be treated as legitimate.
They cannot, however, succeed to the
20

properties of any other relation on the

basis
of
this
rule,
which
in
its
operation, is limited to the properties of
the parents.

32. It

has

been

held

in

Parayankandiyal

(supra)

that Hindu Marriage Act is a beneficent legislation

and

intends

Therefore,
16(3)

by

to

the
this

bring

about

social

interpretation
Court

in

given

Jinia

reforms.

to

Keotin

Section
(supra),

Neelamma (supra) and Bharatha Matha (supra) needs

to be reconsidered.

33. With the amendment of Section 16(3), the common

law view that the offsprings of marriage which is
void and voidable are illegitimate ipso-jure has
to change completely. We must recognize the status
of

such

children

declared

legitimate

recognises
property

which

of

the

rights

their

has

and
of

parents.

been

legislatively

simultaneously
such

children

This

is

in
law

law
the
to

advance the socially beneficial purpose of removing

21

the stigma of illegitimacy on such children who are

as innocent as any other children.

34. However,
benefit

one

given

thing

under

must

the

be

made

amended

clear

Section

that

16

is

available only in cases where there is a marriage

but such marriage is void or voidable in view of
the provisions of the Act.

35. In

our

view,

in

the

case

of

joint

family

property such children will be entitled only to a

share in their parents property but they cannot
claim

it

on

their

own

right.

Logically,

partition of an ancestral property,

falling
children

in

the

is

share

regarded

of

as

the

their

the

the property

parents
self

on

of

acquired

such
and

absolute property. In view of the amendment, we see

no reason why such children will have no share in
such property since such children are equated under
the amended law with legitimate offspring of valid
marriage.

The

only

limitation
22

even

after

the

amendment seems to be that during the life time of

their

parents

partition

but

such
they

children

can

cannot

ask

for

this

right

only

differ

from

the

exercise

after the death of their parents.

36. We

are

constrained

interpretation of Section

to

16(3) rendered

by this

Court in Jinia Keotin (supra) and, thereafter, in

Neelamma (supra) and Bharatha Matha (supra) in view
of

the

constitutional

values

enshrined

in

the

preamble of our Constitution which focuses on the

concept of equality of status and opportunity and
also

on

individual

dignity.

The

Court

has

to

remember that relationship between the parents may

not be sanctioned by law but the birth of a child
in such relationship has to be viewed independently
of the relationship of the parents. A child born in
such relationship is innocent and is entitled to
all the rights which are given to other children
born in valid marriage. This is the crux of the
amendment

in

Section

16(3).
23

However,

some

limitation on the property rights of such children

is still there in the sense their right is confined
to

the

property

of

their

parents.

Such

rights

cannot be further restricted in view of the peexisting common law view discussed above.
It is well known that this Court cannot interpret a
socially beneficial legislation on the basis as if
the

words

therein

are

must

be

legislation

cast

in

stone.

given

Such

purposive

interpretation to further and not to frustrate the

eminently desirable social purpose of removing the
stigma on such children. In doing so, the Court
must have regard to the equity of the Statute and
the

principles

voiced

under

Part

IV

of

the

Constitution, namely, the Directive Principles of

State Policy.

In our

view this

flows from

the

mandate of Article 37 which provides that it is the

duty of the State to apply the principles enshrined
in Chapter IV in making laws.

It is no longer in

dispute

would

higher

that
judiciary

today
in

State

this
24

country.

include

the

Considering

Article 37 in the context of the duty of judiciary,

Justice

Mathew

Sripadagalvaru

v.

in

Kesavananda

State

of

Kerala

and

Bharati
another

[(1973) 4 SCC 225] held:

I can see no incongruity in holding,

when Article 37 says in its latter part

it shall be the duty of the State to
apply these principles in making laws,
that judicial process is State action
and that the judiciary is bound to apply
the Directive Principles in making its
judgment.

38. Going by this principle, we are of the opinion

that Article 39 (f) must be kept in mind by the
Court while interpreting the provision of Section
16(3) of Hindu Marriage Act.

Article 39(f) of the

Constitution runs as follows:

39. Certain principles of policy to be
followed by the State: The State shall, in
particular, direct its policy towards
securing(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f)
that children are given opportunities
and facilities to develop in a healthy
25

manner and in conditions of freedom

and dignity and that childhood and
youth
are
protected
against
exploitation and against moral and
material abandonment.
39. Apart

from

Article

39(f),

Article

300A

also

comes into play while interpreting the concept of

property rights. Article 300A is as follows:

300A. Persons not to be deprived of

property save by authority of law: No
person
shall
be
deprived
of
his
property save by authority of law.

40. Right to property is no longer fundamental but

it

is

Constitutional

right

and

Article

300A

contains a guarantee against deprivation of property

right save by authority of law.

41. In the instant case, Section 16(3) as amended,

does

not

impose

any

restriction

on

the

property

right of such children except limiting it to the

property of their parents. Therefore, such children

26

will have a right to whatever becomes the property

of their parents whether self acquired or ancestral.

42. For

the

reasons

discussed

above,

we

are

constrained to take a view different from the one

taken

by

Neelamma

this
(supra)

Court
and

in

Jinia

Bharatha

Keotin
Matha

(supra),

(supra)

on

Section 16(3) of the Act.

43. We

are,

therefore,

of

the

opinion

that

the

matter should be reconsidered by a larger Bench and

for that purpose the records of the case be placed
before the Honble the Chief Justice of India for
constitution of a larger Bench.

.......................J.
(G.S. SINGHVI)

New Delhi
March 31, 2011

.......................J.
(ASOK KUMAR GANGULY)
27