illegitimate child and ancestral prop

7/23/2019 Illegitimate Child and Ancestral Prop

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Supreme Court of India

Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors on 1 May!

"#1#

Author: . B. ChauhanBen$h% B.S. Chauhan! Satanter 'umar

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 710 o! "00#

$%arat%a Mat%a & A'r. .......Appella't(

Ver()(

R. V*+a,a Re'-a'at%a' & Or(. .........Re(po'e't(

ORDER

Dr. B. S. CHAUHAN, J



1. This appeal has been preferred against the Judgent and !rder of the High Court of

Judi"ature at #adras dated 1$th Jul%, &$$1 allo'ing the appeal filed b% the respondent

No.1 against the (udgent and de"ree of the )st Appellate Court dated 1*.+.1+-

affiring the (udgent and de"ree of the Trial Court dated *..1+** in !.S. No.&-+/1+*0instituted b% the prede"essorininterest of the present appellants for "laiing the

propert% in dispute and den%ing the share to the respondent Nos. & to 0 or their

prede"essorininterest.



&. The fa"ts and "ir"ustan"es gi2ing rise to the present "ase are that the prede"essor

ininterest of the present appellants, 3eria #ariaal instituted a suit, being !.S. No.

&-+ of 1+*0 against the respondents and their prede"essorin interest "laiing the

share of her brother #uthu 4eddiar, on the ground that he died unarried and intestateand that St. 4engaal, the defendant No. 1 in the suit 'as a legall% 'edded 'ife of

one Alagarsai 4eddiar, 'ho 'as still ali2e, therefore, her "lai that she had li2ein

relationship 'ith plaintiff5s brother #uthu 4eddiar and had t'o "hildren fro hi, had

to be ignored. The defendants/respondents "ontested the suit den%ing the arriage

bet'een defendant No. 1 and the said Alagarsai 4eddiar. The Trial Court de"reed the

suit 2ide Judgent and de"ree dated *th #ar"h, 1+** re"ording the finding that

4engaal, defendant No.1 in the suit 'as 'ife of Alagarsai 4eddiar 'ho 'as ali2e at

thetie of filing the suit. There had been no legal separation bet'een the. Therefore,the 6uestion of li2einrelationship of St. 4engaal 'ith #uthu 4eddiar "ould not

arise.

. Being aggrie2ed, the defendants therein filed the 7irst Appeal. The respondent No. 1

herein, 8i(a%a 4enganathan, pur"hased the suit propert% in 1+* i.e. during the

penden"% of the 7irst Appeal for a su of about 4s. 1$,$$$/ and got hiself ipleaded

in the appeal as a part%. The 7irst Appeal 'as disissed b% the Appellate Court 2ide

(udgent and de"ree dated 1*th Septeber, 1+-. The said pur"haser, respondent No.1,

alone filed the Se"ond Appeal under Se"tion 1$$ of Code of Ci2il 3ro"edure, 1+$9hereinafter "alled as C3C5; before the High Court 'hi"h has been allo'ed. Hen"e, this

appeal.



<. =earned "ounsel for the appellants has subitted that St. 4engaal, original

defendant No.1 'as legall% 'edded 'ife of Alagarsai and he 'as still ali2e. Therefore,

the 6uestion of presuption of arriage for ha2ing li2ein relationship 'ith #uthu

4eddiar "ould not arise. )n su"h e2entualit%, #uthu 4eddiar "ould be liable for offen"eof Adulter% under Se"tion <+* of )ndian 3enal Code, 1-$ 9hereinafter "alled as )3C5;.

#ore so, e2en if li2einrelationship is aditted and it is further aditted that the t'o

"hildren 'ere born due to that li2einrelationship, the said "hildren "ould not inherit

the "opar"ener% propert% and in absen"e of an% finding re"orded b% an% Court belo'

that the suit land 'as selfa"6uired propert% of #uthu 4eddiar, the (udgent of the

High Court is liable to be set aside. At the ost, the respondent No. 1 herein "an "lai

re"o2er% of the sale "onsideration fro his 2endors as the possession is still 'ith the

present appellants.

http://indiankanoon.org/doc/1833006/







0. !n the "ontrar%, learned "ounsel for the respondent No.1 has 2eheentl% opposed the

subission of the learned "ounsel for the appellants, "ontending that the High Court

after reappre"iating the e2iden"e on re"ord "ae to the "on"lusion that the fa"tu of

arriage of St. 4engaal 'ith Alagarsai 4eddiar "ould not be pro2ed b% theappellants herein and be"ause of their li2einrelationship, a presuption of arriage

bet'een #uthu 4eddiar and St. 4engaal "ould be dra'n and, therefore, in 2ie' of

the pro2isions of Se"tion 1- of the Hindu #arriage A"t, 1+00 9hereinafter "alled as, >the

A"t>;, the t'o "hildren born out of that li2ein relationship 'ere entitled to inherit the

propert% of #uthu 4eddiar and thus, the appeal is liable to be disissed.

-. ?e ha2e "onsidered the ri2al subissions of the learned "ounsel for the parties and

perused the re"ord.






*. The Trial Court as 'ell as the 7irst Appellate Court ha2e re"orded a "ategori"al

finding of fa"t that St. 4engaal, defendant No.1 had been arried to Alagarsai

4eddiar 'ho 'as ali2e on the date of institution of the suit and, therefore, the 6uestion

of arriage b% presuption bet'een St. 4engaal and #uthu 4eddiar 'ould notarise and for deterining the sae all the aterial on re"ord had been ta@en into

"onsideration in"luding the stateent of Seethaal, D?1 along 'ith all other defen"e

'itnesses and the do"uents, parti"ularl%, ts.B1<, B1, B1+ and B&.

. Ho'e2er, the High Court fraed t'o substantial 6uestions of la', nael%:

9a; ?hether on the aditted long "ohabitation of the 7irst defendant and #uthu

4eddiar, a legal presuption of a la'ful 'edlo"@ is not established

and

9b; ?hether the spe"ifi" "ase of prior and subsisting arriage bet'een defendant and

Alagarsai 4eddiar set up b% 3laintiff is established as re6uired b% la' and she "ould

ha2e a preferential "lai o2er defendants 1 to



+. ?hile deterining the substantial 6uestion 9b; the High Court onl% "onsidered the

stateent of Seethaal, D?1, the step other of #uthu 4eddiar and did not ta@e into

"onsideration the e2iden"e of plaintiff5s 'itnesses 'hi"h had been relied upon b% the

"ourts belo', parti"ularl%,Euarasa% 3?& and Eandasa% 3?0 and reappre"iatedthe do"uentar% e2iden"e. Therefore, the 6uestion does arise as to 'hether su"h a

"ourse is perissible 'hile de"iding the Se"ond Appeal under Se"tion 1$$ C3C.

1$. )n Sheel Chand 8s. 3ra@ash Chand, A)4 1++ SC $-, this Court held that 6uestion

of reappre"iation of e2iden"e and fraing the substantial 6uestion as to 'hether the

findings relating to fa"tual atri b% the "ourt belo' "ould 2itiate due to irrele2ant

"onsideration and not under la', being 6uestion of fa"t "annot be fraed.

11. )n 4a(appa Hanaantha 4ano(i 8s. #ahade2 Channabasappa F !rs. A)4 &$$$ SC

&1$, this Court held that it is not perissible for the High Court to de"ide the Se"ond

Appeal b% reappre"iating the e2iden"e as if it 'as de"iding the 7irst Appeal unless it

"oes to the "on"lusion that the findings re"orded b% the "ourt belo' 'ere per2erse.



1&. )n Eul'ant Eaur F !rs. 8s. Gurdial Singh #ann 9dead; b% =.4s. A)4 &$$1 SC 1&*,

this Court held that the 6uestion 'hether =o'er Court5s finding is per2erse a% "oe

'ithin the abit of substantial 6uestion of la'. Ho'e2er, there ust be a "lear finding

in the (udgent of the High Court as to per2ersit% in order to sho' "oplian"e 'ithpro2isions of Se"tion 1$$ C3C. Thus, this Court re(e"ted the proposition that s"rutin% of

e2iden"e is totall% prohibited in Se"ond Appeal.

1. Thus, it is e2ident that High Court "an interfere 'ith the finding of fa"t 'hile

de"iding the Se"ond Appeal pro2ided the findings re"orded b% the Courts belo' are

per2erse.



1<. )n H.B. Gandhi, "ise F Taation !ffi"er"u Assessing Authorit%, Earnal F !rs.

8s. #/s. Gopi Nath F Sons F !rs. 1++& Supp.9&; SCC 1&, this Court held that if a

finding of fa"t is arri2ed at b% ignoring or e"luding rele2ant aterial or b% ta@ing into

"onsideration irrele2ant aterial or if the finding so outrageousl% defies logi" as tosuffer fro the 2i"e of irrationalit% in"urring the blae of being per2erse, then the

finding is rendered infir in la'. )n #/s. Tri2eni 4ubber F 3lasti"s 8s. Colle"tor of

Central "ise, Co"hin A)4 1++< SC 1<1, this Court held that the order suffers fro

per2ersit% in "ase soe rele2ant e2iden"e has not been "onsidered or that "ertain

inadissible aterial has been ta@en into "onsideration or 'here it "an be said that the

findings of the authorities are based on no e2iden"e or that the% are so per2erse that no

reasonable person 'ould ha2e arri2ed at those findings. )n Euldeep Singh 8s.

Coissioner of 3oli"e F !rs. 91+++; & SCC 1$, this Court held that if a de"ision isarri2ed at on no e2iden"e or e2iden"e 'hi"h is thoroughl% unreliable and no reasonable

person 'ould a"t upon it, the order 'ould be per2erse. But if there is soe e2iden"e on

re"ord 'hi"h is a""eptable and 'hi"h "annot be relied upon, ho'soe2er "opendious it

a% be, the "on"lusions 'ould not be treated as per2erse and the findings 'ould not be

interfered 'ith. )n Ga%a Din 9dead; thr. =rs. F !rs. 8s. Hanuan 3rasad 9dead; thr. =rs.

F !rs. A)4 &$$1 SC -, it has been held that order of an authorit% is per2erse in the

sense that the order is not supported b% the e2iden"e brought on re"ord or it is against

the la' or it suffers fro the 2i"e of pro"edural irregularit%. )n 4a(inder Euar Eindra

8s. Delhi Adinistration, thr. Se"retar% 9=abour; F !rs. A)4 1+< SC 1$0, this Court

'hile dealing 'ith a "ase of dis"iplinar% pro"eedings against an eplo%ee "onsidered the

issue and held as under:

>1*. )t is e6uall% 'ellsettled that 'here a 6uasi (udi"ial tribunal or arbitrator re"ords

findings based on no legal e2iden"e and the findings are either his ipse diit or based on

"on(e"tures and surises, the en6uir% suffers fro the additional infirit% of non

appli"ation of ind and stands 2itiated. ....The High Court, in our opinion, 'as "learl% in

error in de"lining to eaine the "ontention that the findings 'ere per2erse on theshort, spe"ious and 'holl% untenable ground that the atter depends on appraisal of

e2iden"e.>



10. )n the instant "ase, the Courts belo' had appre"iated the entire e2iden"e and "ae

to the "on"lusion that St. 4engaal, defendant no.1 'as legall% 'edded 'ife of

Alagarsai 4eddiar and thus did not presue her arriage 'ith #uthu 4eddiar. The

High Court 'ithout a@ing an%referen"e to the e2iden"e of the plaintiff5s 'itnesses,parti"ularl%, Euarasa%3.?.& and Eandasa%3?.0 re2ersed the finding of fa"t and

rea"hed the "on"lusion that erel% li2einrelationship bet'een the said t'o parties

'ould lead the presuption of arriage bet'een the. The High Court erred in not

appre"iating that the (udgents of the Courts belo' "ould be based on another

presuption pro2ided under Se"tion 11& of the 2iden"e A"t, 1*& 9hereinafter "alled as

the 2iden"e A"t5;.








1-. Se"tion 11& of the 2iden"e A"t pro2ides for a presuption of a "hild being

legitiate and su"h a presuption "an onl% be displa"ed b% a strong preponderan"e of

e2iden"e and not erel% b% a balan"e of probabilities as the la' has to li2e in fa2our of

inno"ent "hild fro being bastardised. )n the instant "ase, as the proof of nona""ess bet'een 4engaal and Alagarsai had ne2er been pleaded 'hat to tal@ of pro2ing the

sae, the atter has not been eained b% the High Court in "orre"t perspe"ti2e. )t is

settled legal proposition that proof of nona""ess bet'een the parties to arriage during

the rele2ant period is the onl% 'a% to rebut that presuption. 2ide #ohabbat Ali Ehan

8s. #uhaad )brahi Ehan F !rs. A)4 1+&+ 3C 10 Chilu@uri 8en@ates'arlu 8s.

Chilu@uri 8en@atanara%ana A)4 1+0< SC 1*- #ahendra #anilal Nana2ati 8s. Sushila

#ahendra Nana2ati A)4 1+-0 SC -< 3erual Nadar 9Dead; b% =rs. 8s. 3onnus'ai

Nadar 9inor; A)4 1+*1 SC &0& Aar(it Eaur 8s. Harbha(an Singh and Anr. 9&$$; 1$SCC && Sobha H%a2athi De2i 8s. Setti Gangadhara S'a% and !rs. A)4 &$$0 SC

$$ and Shri Banarsi Dass 8s. Tee@u Dutta 9#rs.; and Anr. 9&$$0; < SCC <<+I





1*. The High Court has de"ided the issue regarding the fa"tu of arriage bet'een

Alagarsai and 4engaal onl% pla"ing relian"e upon the stateent of St.

Seethaal, D?1, step other of #uthu 4eddiar 'ho had been disbelie2ed b% the

Courts belo' b% gi2ing "ogent reasons and ta@ing note of the fa"t that she had arrangedtheir arriage spending a su of 4s.1$ onl%. The High Court has also reappre"iated the

do"uentar% e2iden"e and too@ a 2ie' "ontrar% to the 2ie'ta@en b% the "ourt5s belo'. )t

'as not appropriate for the High Court to reappre"iate the e2iden"e in Se"ond Appeal

as no substantial 6uestion of la' in2ol2ed therein. Both the Courts belo' found that

4engaal 'as legall% 'edded 'ife of Alagarsai. The Courts belo' had pla"ed 2er%

hea2% relian"e upon the 'itnesses eained b% the appellant/plaintiff parti"ularl%,

Euarasa% 3? & and Eandasa% 3? 0.

1. )n 2ie' of the fa"t that the High Court did not e2en ta@e note of the deposition of the

plaintiff5s 'itnesses, findings re"orded b% the High Court itself be"oe per2erse and

thus liable to be set aside.



1+. Be that as it a%, Se"tion 091; of the A"t la%s do'n "onditions for a Hindu arriage.

)t pro2ides that arriage a% be solenied bet'een an% t'o Hindus if neither of the

is a spouse li2ing at the tie of arriage. Se"tion 11 pro2ides that an% arriage 'hi"h is

in "ontra2ention of Se"tion 091; of the A"t, 'ould be 2oid. Se"tion 1- of the A"t stoodaended 2ide Aendent A"tof 1+*- and the aended pro2isions read as under:

>=egitia"% of "hildren of 2oid and 2oidable arriages 91; Not'ithstanding that a

arriage is null and 2oid under se"tion 11, an% "hild of su"h arriage 'ho 'ould ha2e

been legitiate if the arriage had been 2alid, shall be legitiate........

9&; ?here a de"ree of nullit% is granted in respe"t of a 2oidable arriage under se"tion

1&, an% "hild begotten or "on"ei2ed before the de"ree is ade, 'ho 'ould ha2e been the

legitiate "hild of the parties to the arriage if at the date of the de"ree it had beendissol2ed instead of being annulled, shall be deeed to be their legitiate "hild

not'ithstanding the de"ree of nullit%.

9; Nothing "ontained in subse"tion 91; or sub se"tion 9&; shall be "onstrued as

"onferring upon an% "hild of a arriage 'hi"h is null and 2oid or 'hi"h is annulled b% a

de"ree of nullit% under se"tion 1&, an% rights in or to the propert% of an% person, other

than the parents, in an% "ase 'here, but for the passing of this A"t, su"h "hild 'ould

ha2e been in"apable of possessing or a"6uiring an% su"h rights b% reason of his not

being the legitiate "hild of his parents.> 9phasis added;

&$. Thus, it is e2ident that Se"tion 1- of the A"t intends to bring about so"ial refors,

"onferent of so"ial status of legitia"% on a group of "hildren, other'ise treated as

illegitiate, as its prie ob(e"t.


























&1. )n S.3.S. Balasubraan%a 8s. Surutta%an K Andali 3ada%a"hi F !rs. A)4 1++& SC

*0-, this Court held that if an and 'oan are li2ing under the sae roof and

"ohabiting for a nuber of %ears, there 'ill be a presuption under Se"tion 11< of the

2iden"e A"t that the% li2e as husband and 'ife and the "hildren born to the 'ill not be illegitiate.

&&. )n S. Ehushboo 8s. Eanniaal F Anr. JT &$1$ 9<; SC <*, this Court, pla"ing

relian"e upon its earlier de"ision in =ata Singh 8s. State of U.3. F Anr. A)4 &$$- SC

&0&&, held that li2einrelationship is perissible onl% in unarried a(or persons of

heterogeneous se. )n "ase, one of the said persons is arried, an a% be guilt% of

offen"e of adulter% and it 'ould aount to an offen"e under Se"tion <+* )3C.








&. )n St. 3..E. Ealliani Aa F !rs. 8s. E. De2i F !rs. A)4 1++- SC 1+-, this

Court held that Se"tion 1- of the A"t is not ultra 2ires of the Constitution of )ndia. )n

2ie' of the legal fi"tion "ontained in Se"tion 1-, the illegitiate "hildren, for all pra"ti"al

purposes, in"luding su""ession to the properties of their parents, ha2e to be treated aslegitiate. The% "annot, ho'e2er, su""eed to the properties of an% other relation on the

basis of this rule, 'hi"h in its operation, is liited to the properties of the parents.

&<. )n 4aesh'ari De2i 8s. State of Bihar F !rs. A)4 &$$$ SC *0, this Court dealt

'ith a "ase 'herein after the death of a Go2ernent eplo%ee, "hildren born

illegitiatel% b% the 'oan, 'ho had been li2ing 'ith the said eplo%ee, "laied the

share in pension/gratuit% and other death"uretiral benefits along 'ith "hildren born

out of a legal 'edlo"@. This Court held that under Se"tion 1- of the A"t, "hildren of 2oid

arriage are legitiate. As the eplo%ee, a Hindu, died intestate, the "hildren of the

de"eased eplo%ee born out of 2oid arriage 'ere entitled to share in the fail%

pension, death"uretiral benefits and gratuit%.











&0. )n Jinia Eeotin F !rs. 8s. Euar Sitara #an(hi F !rs. 9&$$; 1 SCC *$, this

Court held that 'hile engrafting a rule of fi"tion in Se"tion 1- of the A"t, the illegitiate

"hildren ha2e be"oe entitled to get share onl% in selfa"6uired properties of their

parents. The Court held as under :

><...........Under the ordinar% la', a "hild for being treated as legitiate ust be born in

la'ful 'edlo"@. )f the arriage itself is 2oid on a""ount of "ontra2ention of the statutor%

pres"riptions, an% "hild born of su"h arriage 'ould ha2e the effe"t, per se, or on being

so de"lared or annulled, as the "ase a% be, of bastardising the "hildren born of the

parties to su"h arriage. 3ol%ga%, 'hi"h 'as perissible and 'idel% pre2alent aong

the Hindus in the past and "onsidered to ha2e e2il effe"ts on so"iet%, "ae to be put an

end to b% the andate of the 3arliaent in ena"ting the Hindu #arriage A"t, 1+00. The

legitiate status of the "hildren 'hi"h depended 2er% u"h upon the arriage bet'een

their parents being 2alid or 2oid, thus turned on the a"t of parents o2er 'hi"h the

inno"ent "hild had no hold or "ontrol. But for no fault of it, the inno"ent bab% had to

suffer a peranent set ba"@ in life and in the e%es of so"iet% b% being treated as

illegitiate. A laudable and noble a"t of the legislature indeed in ena"ting Se"tion 1- to

put an end to a great so"ial e2il.









At the sae tie, Se"tion 1- of the A"t, 'hile engrafting a rule of fi"tion in ordaining the

"hildren, though illegitiate, to be treated as legitiate, not'ithstanding that the

arriage 'as 2oid or 2oidable "hose also to "onfine its appli"ation, so far as su""ession

or inheritan"e b% su"h "hildren are "on"erned to the properties of the parents onl%.

0. So far as Se"tion 1- of the A"t is "on"erned, though it 'as ena"ted to legitiise

"hildren, 'ho 'ould other'ise suffer b% be"oing illegitiate, at the sae tie it

epressl% pro2ide in Subse"tion 9; b% engrafting a pro2ision 'ith a nonobstante

"lause stipulating spe"ifi"all% that nothing "ontained in Subse"tion 91; or Subse"tion

9&; shall be "onstrued as "onferring upon an% "hild of a arriage, 'hi"h is null and 2oid

or 'hi"h is annulled b% a de"ree of nullit% underSe"tion 1&, an% rights in or to the

propert% of an% person, other than the parents, in an% "ase 'here, but for the passing of

this A"t, su"h "hild 'ould ha2e been in"apable of possessing or a"6uiring an% su"h

rights b% reason of this not being the legitiate "hild of his parents5. )n the light of su"h

an epress andate of the legislature itself there is no roo for a""ording upon su"h

"hildren 'ho but for Se"tion 1- 'ould ha2e been branded as illegitiate an% further

rights than en2isaged therein b% resorting to an% presupti2e or inferential pro"ess of

reasoning, ha2ing re"ourse to the ere ob(e"t or purpose of ena"ting Se"tion 1- of the

A"t. An% attept to do so 'ould aount to doing not onl% 2iolen"e to the pro2ision

spe"ifi"all% engrafted in Subse"tion 9; of Se"tion 1- of the A"t but also 'ould attept

to "ourt relegislating on the sub(e"t under the guise of interpretation, against e2en the 'ill epressed in the ena"tent itself. Conse6uentl%, 'e are unable to "ountenan"e the

subissions on behalf of the appellants.......>
















&-. This 2ie' has been appro2ed and follo'ed b% this Court in Neelaa and others 8s.

Saro(aa and others 9&$$-; + SCC -1&.

&*. Thus, it is e2ident that in su"h a fa"tsituation, a "hild born of 2oid or 2oidablearriage is not entitled to "lai inheritan"e in an"estral "opar"ener% propert% but is

entitled onl% to "lai share in self a"6uired properties, if an%.

&. )n the instant "ase, respondents had not pleaded at an% stage that the Suit land 'as

a self a"6uired propert% of #uthu 4eddiar. )t is e2ident fro the re"ord that #uthu

4eddiar did not partition his (oint fail% properties and died issueless and intestate in

1+*<. Therefore, the 6uestion of inheritan"e of "opar"ener% propert% b% the illegitiate

"hildren, 'ho 'ere born out of the li2einrelationship, "ould not arise. Thus, the

(udgent of the High Court is liable to be set aside onl% on this sole ground.



&+. )n 2ie' of the abo2e, the appeal su""eeds and is allo'ed. The (udgent and order of

the High Court dated 1$th Jul%, &$$1 is hereb% set aside. No order as to "ost.

$. Ho'e2er, it shall be open to 4.0 to resort to legal pro"eedings, perissible in la' forre"o2er% of the sale "onsideration fro his 2endors as he has pur"hased the propert% in

lis pendis and the appellants are still in possession of the suit propert%.



.........................................J. 9Dr. B.S. CHAUHAN; .........................................J.

9S?ATANT4 EU#A4; Ne' Delhi, #a% 1*, &$1$ )N TH SU34# C!U4T !7

)ND)A C)8)= A33==AT JU4)SD)CT)!N JUDG#NT T! B 34!N!UNCD BL

H!N5B= D4. JUST)C B.S. CHAUHAN !N &0.0.&$1$ 9TUSDAL; )N THSU34# C!U4T !7 )ND)A C)8)= A33==AT JU4)SD)CT)!N Ci2il Appeal No.

*1$ of &$$ Bharatha #atha F Anr. .......Appellants 8ersus 4. 8i(a%a 4enganathan F

!rs. .........4espondents Dear brother A draft (udgent in the abo2e entioned atter is

being sent here'ith for %our @ind perusal and fa2ourable "onsideration.



?ith regards, Lours sin"erel%, 9Dr. B.S. CHAUHAN; 1+.0.&$1$ H!N5B= #4. JUST)C

S?ATANT4 EU#A4 )N TH SU34# C!U4T !7 )ND)A C)8)= A33==AT

JU4)SD)CT)!N C)8)= A33A= N!. *1$ of &$$ Bharatha #atha F Anr.

.......Appellants 8ersus 4. 8i(a%a 4enganathan F !rs. .........4espondents !4D4 D)CTATD BL H!N5B= D4. JUST)C B.S. CHAUHAN !N 1*.0.&$1$



Rasala Surya Prakasarao And ... vs Rasala Venkateswararao And ... on 21February, 1992

Showing the contexts in which legitimate cild appears in the document

1+. Coing to the legal position after theHindu #arriage A"t "ae into eisten"e, 'e

find that original Se"tion 1- laid do'n that 'here a de"ree of nullit% is granted in

respe"t of an% arriage under Se"tion 11 or Se"tion 1&, an% $hi(d begotten or "on"ei2ed

before the de"ree is ade 'ho 'ould ha2e been the (egitimate $hi(d of the parties to

the arriage if it had been dissol2ed instead of ha2ing been de"lared null and 2oid or

annulled b% ade"ree of nullit% shall be deeed to be

their (egitimate $hi(d not'ithstanding the de"ree of nullit%. The first de"ision of

Andhra 3radesh High Court 'hi"h dealt 'ith the effe"t of se"tion 1- of the Hindu

#arriage A"t on the rights of an il(egitimate son of a Sudra is =a@shaa 2.

Narasaa, 91+*; & Andh =T &$0;. )n this de"ision, Justi"e Jee2an 4edd% "onsidered

the s"ope and effe"t of old Se"tion 1- as 'ell as the aended Se"tion 1- of the Hindu

#arriage A"t. The fa"ts of that de"ision are rele2ant to understand the prin"iple

enun"iated b% the "ourt. !ne Narasappa, 'ho died on <1+--, had t'o 'i2es. Theplaintiffs other is the se"ond 'ife. After the death of Narasappa, the se"ond 'ife and

plaintiff filed a suit !. S. No. 0 of 1+- for partition and separate possession of their

share in the estate of Narasappa. That suit 'as disissed on t'o grounds one, that the

arriage of the se"ond 'ife 'ith Narasappa being a nullit%, she "annot ha2e an% "lai

in the properties t'o, sin"e the present plaintiff 'as born before the de"laration of

nullit% 'as obtained, plaintiff is disentitled fro an% share in the properties of

Narasappa. After that suit 'as disissed, the se"ond 'ife filed an appli"ation under

Se"tion f 1 of the Hindu #arriage A"5 !. 3. No. <0 of 1+-+ and obtained de"ree of

annualent of the arriage on 1&1+*1. An appeal filed against that order ended in

disissal. Then the se"ond suit 'as filed "laiing for partition and separate possession

of 1/rd share. )n su"h a "ontet, the "ourt dealt 'ith the legal position of the

il(egitimate $hi(d. !ne other pe"liar fa"t is that the se"ond suit for partition 'as

disissed on &++1+*0 and 'hen an appeal 'as filed and the appeal 'as

pending, Se"tion 1- of the Hindu #arriage A"t 'as aended. !ld Se"tion 1- 'as

























repla"ed or substituted b% a ne' one. The appellate "ourt held that aended Se"tion

1- "oes to the res"ue of the plaintiff and that she is entitled to the share in the

properties of Narasappa. After 6uoting the pro2isions of aendedSe"tion 1-, the learned

(udge obser2ed in paragraph - as follo's :

>A reading of subse"tion 91; in % opinion, does not lea2e an% doubt that the

3arliaent intended to benefit all the $hi(dren before or after the "oen"eent of

the Aendent A"tand those born before or after the de"ree of nullit%, b% de"laring

the as 5(egitimate5. Subse"tion 9; also pro2ides 5"lue to the intention of the

3arliaent that su"h de"laration of (egitima"% 'as not intended to be an ept% one but

'as supposed to be integrall% "onne"ted 'ith the de2olution of properties also. The

se"tion sa%s that the $hi(dren born of 2oid arriages shall be deeed to be (egitimate

as if the arriage had been 2alid, not'ithstanding the fa"t that the arriage is de"lared

to be a nullit% 'hether before or after the birth of the $hi(d, and not'ithstanding the

further fa"t that the $hi(d is bo before or after the aendent. As a result of the said

se"tion, the plaintiff ust be deeed to be the (egitimate $hi(d of Narasappa. )f she is

a (egitimate $hi(d, she 'ould be undoubtedl% entitled to a share in the properties of

Narasappa. A""epting the respondent5s "ontention 'ould ean that the plaintiff 'ould

be deeed to be a (egitimate $hi(d of Narasappa ol% fro the date of "oing into.

for"e of the Aendent A"t, she 'ould be the (egitimate daughter of Narasappa, but

shall ha2e no share in his properties. Su"h "ould not ha2e been the intention of the

3arliaent. )f she is (egitimate, she is (egitimate fro her birth. )n other 'ords, she isa (egitimate $hi(d of Narasappa for all purposes. )f so, she is entitled to a share in his

properties a""ording to la'.>

)n paragraph &*, the Di2ision Ben"h suarised the propositions of la' as follo's:

>). )n regard to a $hi(d of a 2oid arriage :

91; a $hi(d of a arriage 'hi"h is 2oid under the pro2isions of Hindu #arriage A"t,

'hether a de"ree of nullit% is passed or not, is a (egitimate $hi(d S. 1-91;, Hindu#arriage A"t, 9&; Su"h a$hi(d does not a"6uire right to propert% 'hi"h

a (egitimate $hi(d 'ould, but the (egitima"% "onfers upon hi right to propert% of his

parents. 9S. 1-9;, Hindu .#arriage A"t;

>But ha2ing ade it "lear that the $hi(dren born of su"h arriage 'ould be regarded

as(egitimate $hi(dren, not'ithstanding the de"ree for nullit%, 'hi"h 'ould other'ise























ha2e the effe"t, be"ause of the relation ba"@ prin"iple, of enabling su"h $hi(dren for

purpose of su""ession, the right of su"h $hi(dren to inherit should be liited and

"onfined to the interest of their parents. The effe"t of the pro2iso is to liit the logi"al

result of legitiiation 'ith, relation ba"@ to the date of birth. The pro2iso forbids

"onferent of an% right on the (egitimatied $hi(d in the propert% of an% person other

than the parents, 'here, but for the passing of the A"t, su"h$hi(d "ould ha2e been

in"apable of possession or a"6uiring an% su"h rights b% reason of his not being

the (egitimate $hi(d of his parents. )n other 'ords, if S. 1- 'ere not there, the result of

de"laring the arriage as nullit% 'ould be to regard the $hi(dren born of su"h arriage

as il(egitimate in 'hi"h "ase, the% 'ould not be entitled to an% share at all in the

properl% of the father, or to inherit an% other propert%. But be"ause of

the (egitimiation, the% should be regarded as (egitimate sons born of the arriage

de"lared 2oid. But, in that "ase, the poli"% of S. 1- ta@en along 'ith pro2iso appears to benot to enable su"h $hi(d to ha2e the full rights of (egitimate sons.>





illegitimate child and ancestral prop

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