Revanasiddappa vs Mallikarjun on 1 September, 2023

[Cites 58, Cited by 1]



Supreme Court of India
Revanasiddappa vs Mallikarjun on 1 September, 2023

Author: Dhananjaya Y Chandrachud

Bench: Dhananjaya Y Chandrachud

Reportable
2023INSC783

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No 2844 of 2011


Revanasiddappa & Anr. …Appellants

Versus

Mallikarjun & Ors. …Respondents

With
Civil Appeal No 2312 of 2021

With
SLP (C) Nos 23397-98 of 2018

With
Civil Appeal No 7318 of 2014

With

SLP (C) No 81 of 2016

With

Civil Appeal No 4398 of 2019

With

SLP (C) No. 14176-77 of 2016

With

SLP (C) No. 27834 of 2017

And with

SLP (C) No 1573-74 of 2021
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2023.09.01
17:26:30 IST
Reason:




1
 JUDGMENT



Dr Dhananjaya Y Chandrachud, CJI

Table of Contents

A. The reference to the three Judge Bench 3

B. Statutory conferment of legitimacy 6

C. Rights in or to the property of parents 14

D. Issues in the reference 16

E. Submissions: 17

F. Joint Hindu family and coparcenary under Mitakshara 23

G. Hindu Succession Act 1956 27

H. Property of the Parents 39

I. Legitimacy and Coparcenary 46

J. The referring judgment revisited: 51

K. Conclusion 55




2
 PART A

A. The reference to the three Judge Bench

1. A child born to parents whose marriage is null and void under Section 11 of

the Hindu Marriage Act 19551 is declared to “be legitimate” by Section 16 (1) if a

child “of such marriage... would have been legitimate if the marriage had been

valid.” Likewise, where a decree of nullity has been granted under Section 12 in

respect of a voidable marriage, a child “begotten or conceived before the decree

is made” is “deemed to be their legitimate child” if such a child would have been

the legitimate child of the parties to the marriage if the marriage had been dissolved

instead of being annulled2. Section 16(3) enunciates that a child of a marriage that

is null or void or which is annulled by a decree of nullity shall not have “any rights

in or to the property of any person, other than the parents” where but for the

enactment of the legislation such a child would be incapable of possessing or

acquiring any such rights “by reason of his not being the legitimate child of his

parents”.

2. Several decisions of this Court have considered the nature of the property

rights conferred on children of parents whose marriage is either void or in respect

of which a decree of nullity has been passed under Section 12. In Jinia Keotin v

Kumar Sitaram Manjhi3, a two judge Bench held that merely because the children

born out of a void and illegal marriage have been specifically safeguarded under

Section 16, they ought not to be treated on par with children born from a lawful




1 The Hindu Marriage Act 1955 (HMA)
2 Section 16(2) of HMA
3 (2003) 1 SCC 730



3
 PART A

marriage for the purpose of inheritance of the ancestral property of the parents4.

This Court held that in view of the express mandate of the legislature in Section

16(3), a child born from a void marriage or a voidable marriage in respect of which

a decree of nullity has been passed would have no right to inheritance in respect

of ancestral or coparcenary property. The decision in Jinia Keotin was followed

by two judge benches in Neelamma v Sarojamma5 and later in Bharatha Matha

v R Vijaya Renganathan6. After adverting to the two earlier decisions, this Court

held that “a child born of void or voidable marriage is not entitled to claim

inheritance in ancestral coparcenary property but is entitled only to claim a share

in self-acquired properties.”7

3. The correctness of the decisions in Jinia Keotin, Neelamma, and Bharatha

Matha has been doubted by a two judge Bench in Revanasiddappa v

Mallikarjun8. In its order referring the correctness of the earlier decisions to a

larger bench, the Court has premised its doubt on the following basis:

(i) Section 16(3) does not qualify the expression ‘property’ either with

‘ancestral or self-acquired’ property. It sets out an express mandate that

such children are only entitled to the property of their parents and not of

any other relations;

(ii) Once children born from a void marriage (or a voidable marriage which

has been declared to be nullity) are declared to be legitimate by sub-

sections (1) and (2) of Section 16, they cannot be discriminated against



4 At page 732, para 2
5 (2006) 9 SCC 612
6 (2010) 11 SCC 483
7 At page 513, para 29
8 (2011) 11 SCC 1



4
 PART A

and will be on par with other legitimate children for the purpose of all the

rights in the property of their parents, both self-acquired and ancestral9;

(iii) Section 16 was amended by Act 68 of 1976. As a consequence of the

amendment, the common law view that children of a marriage which is

void or voidable ‘are illegitimate’ ‘ipso jure’ has to change completely10.

The law has a socially beneficial purpose of removing the stigma of

illegitimacy faced by children of such marriages, since the children

themselves are innocent;

(iv) The benefit of Section 16 (3) is available only when there is a marriage

but the marriage is either void or voidable in view of the provisions of the

legislation;

(v) In the case of joint family property, children born from a void or voidable

marriage will only be entitled to a share in their parents’ property but not

in their own right:

“38…Logically, on the partition of an ancestral
property, the property falling in the share of the
parents of such children is regarded as their self-
acquired 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 even after the amendment seems to be
that during the lifetime of their parents such
children cannot ask for partition but they can
exercise this right only after the death of their
parents.”


(vi) While the relationship between the parents may not be sanctioned by

law, the birth of a child in such a relationship has to be viewed

9 At para 29 page 9
10 At para 36 page 10



5
 PART B

independently of such relationship. The interpretation of Section 16(3)

must be based on the constitutional values of equality of status and

opportunity as well as individual dignity;

(vii) A child born in such a relationship is innocent and is entitled to all the

rights which are given to other children born in a valid marriage subject

to the limitation that the right is confined to the property of the parents;

and

(viii) Section 16(3) as amended does not impose any restriction on the

property rights of the children born of a void or voidable marriage except

limiting it to the property of their parents. Hence, such children will have

a right to whatever becomes the property of their parents, whether self-

acquired or ancestral.

Thus, the present reference arises before this three judge Bench.

B. Statutory conferment of legitimacy

4. Section 5 of the HMA 1955 specifies, as the marginal notes indicates,

‘Conditions for a Hindu Marriage’11.

11 5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following

conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time
of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of
them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two.

6

 PART B

5. Section 11 stipulates that a marriage solemnised after the commencement

of the Act shall be null and void and be so declared by a decree of nullity if (i) either

party has a spouse living at the time of the marriage; (ii) parties are within the

degrees of prohibited relationship except where a custom or usage governing them

permits of a marriage; and (iii) parties are sapinda of each other, unless a custom

or usage governing them permits of a marriage.12

6. Section 12 provides for the circumstances in which a marriage shall be

voidable and may be annulled by a decree of nullity.13

7. Section 16 as it was originally enacted provided as follows:

“16. Legitimacy of children of void and voidable
marriages.—Where a decree of nullity is granted in
respect of any marriage under Section 11 or Section
12 any child begotten or conceived before the



12 11. Void marriages.- 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.
13 12. Voidable marriages. — (1) Any marriage solemnized, whether before or after the commencement of this Act,

shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely—
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required
under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to
the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if—

(i) the petition presented more than one year after the force had ceased to operate or, as the case may
be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or
wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement
of thisAct within one year of such commencement and in the case of marriages solemnized after
such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by
thepetitioner of the existence of the said ground.”


7
 PART B

decree is made who would have been the legitimate
child of the parties to the marriage if it had been
dissolved instead of having been declared null and
void or annulled by a decree of nullity shall be
deemed to be their legitimate child notwithstanding
the decree of nullity:

Provided that nothing contained in this section shall
be construed as conferring upon any child of a
marriage which is declared null and void or annulled
by a decree of nullity 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.”

8. While Section 16, as originally enacted, protected the legitimacy of children

of void and voidable marriages, its applicability was conditioned by four

requirements namely:

(i) The existence of a marriage;

(ii) The marriage should be void under Section 11 or voidable under Section

12;

(iii) There must be a decree annulling the marriage under Section 11 or

Section 12; and

(iv) The child should have been begotten or conceived before the decree

was made.

9. The manner in which Section 16 was drafted gave rise to two consequences:

firstly, the status of legitimacy granted to a child born from a void or voidable

marriage was conditional upon the marriage being annulled by a decree of

annulment. Absent a decree of annulment, the child would continue to be

‘illegitimate’. If the parties had not moved a court and obtained a decree, the



8
 PART B

protection under Section 16 was not available. Secondly, children born from void

or voidable marriages were artificially divided into two groups, those born of a

marriage performed prior to the enactment of the legislation and those born after

its enactment.

10. The anomalies in the erstwhile provisions of Section 16 were succinctly

summarised in the judgment of this Court in Parayankandiyal Eravath

Kanapravan Kalliani Amma (Smt) v K Devi14. The Court noted:

“58. In spite of the foresightedness of the legislators, the
intention of Parliament could not be fully reflected in the
Act which unfortunately suffered at the hands of
persons who drafted the Bill and the various provisions
contained therein. The results were startling. Since the
Rule of Legitimacy was made dependent upon the
marriage (void or voidable) being annulled by a decree
of annulment, the children born of such marriage, would
continue to be illegitimate if the decree of annulment
was not passed, which, incidentally, would always be
the case, if the parties did not approach the court. The
other result was that the illegitimate children came to be
divided in two groups; those born of marriage held prior
to the Act and those born of marriage after the Act.
There was no distinction between these two groups of
illegitimate children, but they came to suffer hostile
legislative discrimination on account of the language
employed therein. Indeed, language is an imperfect
instrument for the expression of human thought.”

11. The Fifty-ninth Report of the Law Commission of India (March 1974)

elaborated upon the status of children born of a void marriage. Paragraph 2.36 of

the Report elaborated that there were four possible premises to adopt, which were

thus:

14 (1996) 4 SCC 76



9
 PART B

“2.36. …With reference to the status of children born
of a void marriage, theoretically, four principal views
are possible:-

(i) One view is that such children must be
regarded as illegitimate, because a void
marriage has, in law, no existence, and the
children of such a marriage can only be
regarded as filius nullius;
(ii) The second view is that they should be
entitled to succeed to their parents, as if they
were legitimate, provided that the parents
had contracted the marriage bona fide and
without knowledge of any impediment;
(iii) According to the third view, they should, in all
cases, be entitled to succeed to their parents
as if they were legitimate;
(iv) There could be a fourth view, namely, that
they must be entitled to succeed to other
relations in all cases.”



The Law Commission noted that the legislature had adopted the third view. The

report noted:

“The Hindu Marriage Act, however, has already
adopted the third view it would be a retrograde step
if it now reverts to the second view. That apart, the
third view is absolutely more fair to the innocent off-
spring of the marriage, and more in harmony with
modern social notions. We are, therefore, of the
opinion that there is no justification for reverting to
the second view.”



Section 16 was amended by Act 68 of 1976. As amended, Section 16 provides as

follows:

“16. Legitimacy of children of void and voidable
marriages.—(1) 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

10
 PART B

and whether or not the marriage is held to be void
otherwise than on a petition under this Act.
(2) 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.
(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.”

12. In Kalliani Amma (supra), a two judge Bench held that Section 16 as it was

originally enacted ‘discriminated between two groups of illegitimate children in the

matter of conferment of status of legitimacy’ and was hence violative of Article 14.

The Court noted that in its earlier form, Section 16 was linked with Sections 11 and

12. While holding that the substituted Section 16 is constitutional, the Court

analysed the impact of the non- obstante provision in sub-section 1. The Court

held:

“78. The words “notwithstanding that a marriage is
null and void under Section 11” employed in Section
16(1) indicate undoubtedly the following:
(a) Section 16(1) stands delinked from Section
11.
(b) Provisions of Section 16(1) which intend to
confer legitimacy on children born of void marriages
will operate with full vigour in spite of Section 11
which nullifies only those marriages which are held
after the enforcement of the Act and in the
performance of which Section 5 is contravened.


11

 PART B

(c) Benefit of legitimacy has been conferred
upon the children born either before or after the date
on which Section 16(1) was amended.

(d) Mischief or the vice which was the basis of
unconstitutionality of unamended Section 16 has
been effectively removed by amendment.

(e) Section 16(1) now stands on its own strength
and operates independently of other sections with
the result that it is constitutionally valid as it does not
discriminate between illegitimate children similarly
circumstanced and classifies them as one group for
conferment of legitimacy.

Section 16, in its present form, is, therefore, not ultra
vires the Constitution.”


Section 16 was held to be intra vires. The Court held that Section 16 enacts a legal

fiction: by a rule of ‘fictio juris’ the legislature has provided that children, though

“illegitimate”, shall, nevertheless, be treated as legitimate notwithstanding that the

marriage was void or voidable. Interpreting the legal fiction in Section 16, the Court

in Kalliani Amma observed that “illegitimate children, for all practical purposes,

including succession to the property of their parents have to be treated as

legitimate”. However, “they cannot …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”:

“82. 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 properties of any
other relation on the basis of this rule, which in its
operation, is limited to the properties of the parents.”




12
 PART B

13. Section 2 of the HMA 1955 contains provisions for the application of the

Act15. Under clause (a) to the Explanation, where both the parents of a child are

Hindus, Buddhists, Jainas or Sikhs ‘by religion’, the child, whether legitimate or

illegitimate, would also be a Hindu, Buddhist, Jain or Sikh, as the case may be.

Under clause (b) where one of the parents professes any of the four religions, the

child would be regarded as Hindu, Buddhist, Jain or Sikh, whether the child is

legitimate or illegitimate. Clauses (a) and (b) of the Explanation indicate that the

legitimacy of a child, one or both of whose parents profess Hinduism, Buddhism,

Jainism or Sikhism, is not relevant to the applicability of the Act to the child.

14. Sub-section (1) of Section 16 provides a declaration of legitimacy (“shall be

legitimate”) to a child born of a void marriage, while sub-section (2) contains a

deeming consequence of the legitimacy of a child (‘shall be deemed to be their


15 2. Application of Act - (1) This Act applies

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian,
Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the
Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein
if this Act had not been passed.

Explanation. - The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by
religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion
and who is brought up as a member of the tribe, community, group or family to which such parent belongs
or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members
of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central
Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not
a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this
section.



13

 PART C

legitimate child”) born of a voidable marriage in the situations envisaged in the

respective provisions. Sub-section (1) governs a situation where a marriage is null

and void under Section 11. Sub-section (2) deals with a situation where a decree

of nullity is granted in respect of a voidable marriage under Section 12. Sub-section

(1) declares that a child born from a marriage that is void under Section 11 “shall

be legitimate” if such a child would have been legitimate if the marriage had been

valid. The declaration of legitimacy under sub-section (1) operates whether the

child is born before or after the commencement of Act 68 of 1976 which substituted

the provisions of Section 16 and whether or not

(i) a decree of nullity was granted in respect of a marriage; and

(ii) the marriage was held to be void otherwise than on a petition under the

enactment.

15. In contrast to sub-section (1), sub-section (2) embodies a deeming

consequence of legitimacy, contingent on a decree of nullity under Section 12

where the child is “begotten or conceived” before the decree is made, if the child

would have been the legitimate child of the parties to the marriage if it was

dissolved instead of being annulled on the date of the decree. Once the conditions

in sub-sections (1) and (2) are met, both the provisions essentially protect the

legitimacy of the child.

C. Rights in or to the property of parents

16. Sub-section (3) of Section 16 commences with a non-obstante provision

(“nothing contained in sub-section (1) or sub-section (2)”). Parliament while

enacting sub-section (3) intends to ensure that the legislative conferment of
14
 PART C

legitimacy will not confer upon such a child born from a void or voidable marriage

as the case may be, “any rights in or to the property of any person other than the

parents” where, but for the passing of the legislation, the child would have been

incapable of possessing or acquiring any such rights by reason of their not being

the legitimate child of the parents. There are two crucial expressions in sub-section

(3): the first is “any rights in or to the property of any person other than the parents”;

and the second is “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”. Sub-section (3), in other words, circumscribes the

consequence of the legislative protection of the legitimacy of the child in relation to

the conferment of rights in property. But for sub-section (3), the conferment of

legitimacy on a child from a void or voidable marriage would have placed the child,

for all intents and purposes, at par with a legitimate child in matters relating to

property. The frame of sub-section (3), however, indicates that the conferment of

legitimacy will not confer upon the child rights in or to the property of a person other

than the parents. Sub-section (3) implicitly recognizes that the child conferred with

legitimacy by virtue of the provisions of sub-sections (1) and (2) would be entitled

to rights in or to the property of the parents of the child. But the provision equally

indicates that the conferment of legitimacy will not operate to confer rights in or to

the property of persons who are not the parents of the child. This stipulation is,

however, conditioned by the last part of sub-section (3) which provides that such a

child would not have rights in or to the property of a person who is not a parent

where but for the passing of the Act the child would have been incapable of

possessing or acquiring such rights by reason of not being the legitimate child. This


15
 PART D

last part of sub-section (3), takes us back to the position as it stood before the

passing of the Act. If, but for the enactment of the provision the child would not

have been capable of possessing or acquiring rights over the property of any

person other than the parents by virtue of the ‘illegitimacy’, the child will not have

rights to or in the property of a third party (other than the parents). By its plain

terms, Section 16(3) indicates that Parliament, while conferring legitimacy on a

child born from a void or voidable marriage, confined the rights of the child to or in

the property of the parents and not a party other than the parents.

D. Issues in the reference

17. The reference essentially raises the following issue: whether a child who is

conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of

Section 16(3), entitled to the ancestral/coparcenary property of the parents or is

the child merely entitled to the self-earned/separate property of the parents. The

questions that arise before us are - first, whether the legislative intent is to confer

legitimacy on a child covered by Section 16 in a manner that makes them

coparceners, and thus entitled to initiate or get a share in the partition - actual or

notional; second, at what point does a specific property transition into becoming

the property of the parent. For, it is solely within such property that children

endowed with legislative legitimacy hold entitlement, in accordance with Section

16(3).

16
 PART E

18. The answer to the latter question would primarily depend on interpretation

of the phrase ‘any rights in or to the property of any person, other than the parents’.

In order to understand the ambit of the phrase, and the scope of the right, it would

become necessary to analyse the provisions of the Hindu Succession Act 1956.

19. At this stage, it would be necessary to dwell on the fundamental precepts

underlying the institution of the Hindu Undivided Family. Later, having dwelt on

those precepts, the focus of the judgment will turn to the manner in which the HSA

1956 has (i) regulated the devolution of interest in coparcenary property; (ii)

prescribed general rules of succession; and (iii) stipulated principles for the

distribution of property.

E. Submissions

20. In the backdrop of the reference, and the legal position as stated above, we

shall now avert to the submissions with respect to the interpretation of Section

16(3) and the legislative intent behind the conferment of legitimacy.


The first, more expansive, formulation may be summarised as follows: i) property

of the parent includes the share in the coparcenary property - 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; ii) the provision confers all the connotations of

legitimacy on the children - including coparcenary rights in the property of the

father.

17
 PART E

On the other hand, according to the second formulation i) 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 (who are per

se considered legitimate); as such, it is not the ‘property of the parent’ as per

Section 16(3), HMA and thus, the children under Section 16(3), have no right in it;

ii) 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

covered by Section 16; and iii) thus, under Section 16(3), the only right is with

respect to the self-acquired/ self-earned property of the parent.

The more expansive interpretation is sought to be substantiated on the basis of the

following formulations:

a. Children cloaked with legitimacy under Section 16(3) of the HSA 1956 are to

be considered legitimate for the purpose of partition within the branch of the

father. They cannot claim partition in the larger coparcenary, but once the

larger coparcenary is partitioned- notionally or actually, and the property

comes in the hands of the father, all his children – legitimate per se or

legitimate by reason of S.16(3), have the same right in partition of this

property in the hands of the father. In other words, the only difference between

a legitimate child and a child conferred with legitimacy under Section 16(3) is

that after the death of the father, the latter cannot claim partition in the larger

coparcenary, unlike the children who are per se legitimate. This limitation on

their right ends once the father’s share in the larger coparcenary is

determined. In the share of the father- once determined and separated from



18
 PART E

the larger coparcenary, they have the same rights as the children who are

legitimate16.

b. The purpose of the Amendment is not just to eliminate the stigma experienced

by the children of void or voidable marriages, but to treat all legitimate children

alike. It is the logical corollary of the legal fiction, which cannot be overlooked.

Once a legal fiction is created, as has been created by Section 16(3), all

inevitable corollaries thereof, including rights in the coparcenary property are

also assumed17.

c. Section 16(3) does not qualify the word “property” with ancestral/coparcenary

or separate/self-acquired. Therefore, inserting such a qualification to exclude

the coparcenary property of the parent would be legislation by the court18. To

deny the right to the property of the parents, including the coparcenary

property, to such children born out of a void or voidable marriage, is unduly

harsh19.

d. The legislative intent of Act 68 of 1976 is to treat all legitimate children equally,

as coparceners20. Once the children born out of void and voidable marriages

have been treated as legitimate, there can be no discrimination between them

and the other legitimate children born out of lawful marriages.21




16 Written submissions on behalf of appellant in Revanasiddappa & Anr. vs. Mallikarjun & Ors. by Kiran Suri, Sr.

Advocate, page 3-4
17 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna

Halde by Mr. Sudhanshu Choudhari, page 2, para 3
18 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna

Halde by Mr. Sudhanshu Choudhari, page 7, para 2
19 Written note submitted on behalf of the appellants in Revanasiddappa vs Mallikarjun by Dr. Ravindra Chingale,

page 2
20 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna

Halde by Mr. Sudhanshu Choudhari, page 7, para 3
21 Brief Notes of Arguments in Rejoinder on Behalf of Respondent No.4 in Mankarnabai vs Niranjan, by Mr. AIS

Cheema, Sr. Advocate, page 8.

19

 PART E

e. Section 2 of the HSA 1956 makes the Act, including S. 6, which deals with

coparcenary property, applicable to the children born out of void/voidable

marriages. Section 10 Rule 1 of the Hindu Succession Act does not

distinguish between heirs born out of void or voidable marriages and those

born out of a legal marriage. Class I heirs are similarly not distinguished on

the basis of legitimacy under the Act. Impliedly, the law overall, for all

purposes including notional and actual partition does not intend different

treatment among legitimate children, for all purposes, including the rights in

and to the coparcenary property of the parents. The child conferred with

legitimacy need not be a coparcener in order to be entitled to such a right.22

f. The latter part of Section 16(3) states- “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 4

gives an overriding effect to the provisions of the Act in matters specifically

covered thereunder. The Act does not define a “coparcenary”. Therefore, the

position of law prior to the enactment of the Hindu Succession Act applies

with respect to “coparcenary”. Under the law, as it stood then, children born

from the same male ancestor were all considered coparceners, regardless of

legitimacy.23

g. Limited reading of S.16(3) violates the property rights of the children born out

of void or voidable marriages under Article 300A of the Constitution of India24.




22 Written submissions of Mr. Nikhil Majithia, in Sri. Eshwarachari vs Smt. Sarojamma, page 4.
23 Written submissions of Mr. Nikhil Majithia, in Sri. Eshwarachari vs Smt. Sarojamma, page 4-5.
24 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna

Halde by Mr. Sudhanshu Choudhari, page 8

20
 PART E

The above, interpretation is questioned on the basis of the following formulations:

a. There is a difference between conferring legitimacy on a child and elevating

them to the status of a coparcener. While Section 16 of the HMA 1955 grants

legitimacy, Section 16(3) clarifies the extent of inheritance rights.25 This

distinction becomes clear through the decision in Jinia Keotin, where the

court held that children covered by Section 16(3) have rights limited to their

parents' property.26

b. Article 14 of the Constitution of India allows reasonable classification with an

intelligible differentia, which justifies treating children from various marriages

differently due to distinct legal status. This classification safeguards the

interests of both legitimate offspring and innocent co-parceners, ensuring a

balanced approach.27

c. The legislative intent behind Section 16 is to bestow legitimacy and

inheritance rights upon children from void and voidable marriages. However,

these rights are intentionally confined to parental property, excluding

coparcenary or ancestral property, as evidenced by the legislative history and

objectives.28

d. The Legislature has intervened multiple times to address inheritance rights of

legitimised children:

25 Submitted by Shri K. Radhakrishnan, Senior Advocate on behalf of the Respondents in Revanasiddappa and

Anr v. Mallikarjun and Ors, C.A No. 2844 of 2011
26 Submitted by Mr. PB Suresh on behalf of the Respondents in Baby @ Rohini (Since Deceased) through her

legal heirs & Ors v. Kamalam Kumaresan and Ors, SLP © 14176-14177 of 2016
27 Submitted by Shri K. Radhakrishnan, Senior Advocate on behalf of the Respondents in Revanasiddappa and

Anr v. Mallikarjun and Ors, C.A No. 2844 of 2011
28 Submitted by Mrs V. Mohana, Senior Advocate on behalf of the Respondents in Baby @ Rohini (Since

Deceased) through her legal heirs & Ors v. Kamalam Kumaresan and Ors, SLP © 14176-14177 of 2016

21
 PART E

i. Initial HMA Provision (Section 16): The enactment of the Hindu

Marriage Act (HMA) included Section 16, establishing children from

void or voidable marriages as legitimate children their parents.

ii. 1976 Amendment to Section 16: In 1976, Section 16 of the HMA

was amended to rectify issues causing discrimination.

iii. HSA Amendment (Section 6(3)): Section 6 of the Hindu Succession

Act (HSA) was amended, introducing Section 6(3) that enforces

notional partition of parents' undivided interest in copar