SA No. 47 of 1997 (Second Appeal) Kerala High Court, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** ## **SA.No. 47 of 1997** **AGAINST THE JUDGMENT AND DECREE DATED 30-01-1996 IN AS 196/1992 of ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 30-03-1992 IN OS 93/1990 of SUB COURT, VADAKARA** ## **APPELLANTS/DEFENDANTS 18 TO 22 AND 25/RESPONDENTS 26 TO 31:** - ***1 KIZHAKKAYIL DEVI AMMA (DIED) PAROL, MAHI. LRS IMPLEADED** - *****2 PALLIYIL KOYILOTH LAKSHMI AMMA, (DIED) J.T.ROAD, VADAKARA. LRS IMPLEADED** - ******3 .DO. KALLIANI AMMA, (DIED) .DO. LRS IMPLEADED** - **4 .DO. ROHINI AMMA, .DO.** - **5 .DO. OMANA AMMA, .DO.** - **6 ** LAKSHMIKUTTY AMMA,(DIED) .DO.** ## **LRS IMPLEADED** - **ADDL.A7 K.P.VENU NAMBIAR HUSBAND OF LATE LAKSHMYKUTTY AMMA, VANALAKSHMI, NADAKKU THAZHA P.O., VADAKARA, KOZHIKODE DISTRICT** - **ADDL.A8 VYMA D/O LATE LAKSHMIKUTTY AMMA, - DO -** **** ADDL. APPELLANTS 7 & 8 ARE IMPLEADED AS LEGAL HEIRS OF 6TH APPELLANT AS PER ORDER DATED 18.08.2007 ON IA 1354/2007. ADDL.A9 K.K.SAROJINI D/O LATE DEVI AMMA, RESIDING AT** SA.No. 47 of 1997 2 ## **MANHOLI, THALASSERI,** *** ADDL.APPELLANT 9 IS IMPLEADED BEING THE LEGAL HEIR OF DECEASED 1ST APPELLANT AS PER ORDER DATED 15.12.2011 IN IA 2761/2011** ***** APPELLANTS 4 TO 6, ADDL.APPELLANTS 7,8 & 10 TO 15 AND R1 ARE RECORDED AS LEGAL HEIRS OF DECEASED APPELLANT NO.2 AS PER ORDER DATED 15.12.2011 IN MEMO DATED 31.10.2011 BEARING CF 6793/11** **ADDL.A10P.KUNHIKRISHNAN, S/O LATE KALLANI AMMA, PUNNOLA VEEDU, P.O.ONCHIYAM, VIA CHEMBOLA, KOZHIKODE 673308, NOW RESIDING AT 16/1 GOPALAPURAM 1ST STREET, CHENNAI 56 ADDL.A11VALSALA, D/O LATE KALLANI AMMA, KUNNURANDAVIDA, KURIKKILAD P.O., VADAKARA ADDL.A12VANAJA, D/O LATE KALLANI AMMA, KOTERI VEEDU, ORUVACHALAN P.O., (VIA) MATTANNUR, KANNUR 670 702 ADDL.A13BALAKRISHNAN P., S/O LATE KALLANI AMMA, PUNNOLA VEEDU, ONCHIYAM P.O., (VIA) CHEMBOLA, KOZHIKODE 673 308 ADDL.A14SOBHANA P., D/O LATE KALLANI AMMA, NELLIYULLATHIL VEEDU, BHOOMIVATHUKKAL P.O., VALLAYAM VIA PIN 673517 ADDL.A15SREEJA P., D/O LATE KALLANI AMMA, MANIKKOTH VEEDU P.O. VALAYAM, KOZHIKODE 673517** ******ADDITIONAL APPELLANTS 10 TO 15 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 3RD APPELLANT AS PER ORDER DATED 3.4.2019 IN IA NO.3127/2011. BY ADVS. SRI.R.BHASKARAN, FOR A1 TO A6 SRI.R.PARTHASARATHY, FOR ADDL.RESPONDENTS 7,8 AND ADDL.APPELLANTS A9 TO A15. SRI.R.K.MURALEEDHARAN, FOR A1 TO A6** **RESPONDENTS/RESPONDENTS 23,PLAINTIFFS & D2 TO D16/APPELLANT RESPONDENTS 1 TO 24: *1 PALLIYIL KOYILOTH NARAYANAN OLAVILAM AMSOM, DESOM, TELLICHERRY TALUK.(DIED) *2 PUTHUKKIDI POYIL KUNHI PARVATHI AMMA, DIED CHEMMARATHOOR AMSOM, KOTTAPPALLY DESOM, VADAKARA. LRS IMPLEADED **3 SON RAJAN,(DIED) .DO. LRS IMPLEADED 4 .DO. BROTHER, CHANDRAN,** SA.No. 47 of 1997 3 ||**.DO.**| |---|---| |**5**|**.DO. SISTER, NALINI AMMA,**| ||**.DO.**| |**6**|**.DO. SISTER, VIJAYALAKSHMI,**| ||**.DO.**| |**7**|**.DO. BROTHER VIJAYAN,**| ||**.DO.**| |**8**|**.DO. SISTER, PUSHAPAVALLY,**| ||**.DO.**| |**9**|**.DO. BROTHER, RAVEENDRAN,**| ||**.DO.**| |**10**|**.DO. SISTER,SHYLAJA,**| ||**.DO.**| |**11**|**RAYAROTH DEVI AMMA,**| ||**VADAKARA AMSOM, DESOM, VADAKARA TALUK.**| |**12**|**.DO.VASANTHA,**| ||**CHORODE AMSOM, DESOM, VADAKARA TALUK.**| |**13**|**.DO. DAUGHTER NISHA,**| ||**.DO.**| |**14**|**.DO. SISTER, JISHA,**| ||**.DO.**| |**15**|**RAYAROTH R. RAJALAKSHMI,**| ||**VADAKARA AMSOM, DESOM, VADAKARA TALUK.**| |**16**|**.DO. BROTHER , RADHAKRISHNAN,**| ||**.DO.**| |**17**|**.DO. BROTHER RAMACHANDRAN,**| ||**.DO.**| |**18**|**.DO.BROTHER, RAGESH,**| ||**.DO.**| |**19**|**.DO.SISTER,CHITHRALEKHA,**| ||**.DO.**| |*****20**|**N.K.CHANDU KURUP, (DIED)**| ||**NADAKKUTHAZHA AMSOM, PUTHUR DESOM, VADAKARA.**| |**21**|**MEERA,**| SA.No. 47 of 1997 4 ||**HOUSE NO.15/108, CHITTAGUNDA TOP, GUDUR, NELLOR**| |---|---| ||**DISTRICT, ANDRAPRADESH.**| |**22**|**SON SIVAKUMAR,**| ||**.DO.**| |**23**|**SISTER, SIVAKUMARI,**| ||**.DO.**| |**24**|**SISTER, SIVAPRABHA,**| ||**.DO.**| |**25**|**BROTHER, SIVAPRASAD,**| ||**.DO.**| ||**19TH RESPONDENT REPRESENTED BY GUARDIAN 11TH**| ||**RESPONDENT AND 14TH RESPONDENT REPRESENTED BY**| ||**GUARDIAN 12TH RESPONDENT**| ## **ADDL.R26 KAMALAKSHMY AMMA W/O LATE RAJAN,** **PUTHUKUDI POYIL CHEMMARATHOOR AMSOM, KOTTAPPALLY DESOM, VADAKARA ADDL.R27 RAJESH - DO –** *** RESPONDENTS 4 TO 10 AND ADDITIONAL RESPONDENTS 26 & 27 ARE RECORDED AS LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 15.12.2011 IN MEMO DATED 31.10.2001 BEARING CF NO. 6987/11** **** ADDL.RESPONDENTS 26 & 27 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 3RD RESPONDENT AS PER ORDER DT. 16.11.2006 ON I.A.1427/2006.** ****** ADDL.R28 JANAKI AMMA, W/O LATE KUNHI CHANDU KURUP (DIED) ADDL.R29 ACHUTHAN S/O LATE KUNHI CHANDU KURUP ADDL.R30 GEETHA D/O DO ADDL.R31 MANOHARI D/O DO ADDL.R32 PANKAJAM D/O DO ADDL.R33 KAMALAKSHI D/O DO. ADDL.R34 PRABHA D/O DO. ADDL.R35 RAMACHANDRAN S/O DO. ***** ADDL.R36 JAYARATNAM, W/O LATE NARAYANAN, KOTTAYIL PUTHIYOTTIL, OLAVILAM P.O., TELLICHERRY TALUK, KANNUR DISTRICT ADDL.R37 ROOPA W/O VINODAN, KUNIYIL HOUSE, VALLLIKAD P.O., VATAKARA, KOZHIKODE DISTRICT ADDL.R38 RENISH, S/O LATE NARAYANAN, KOTTAYIL PUTHIYOTTIL, OLAVILAM P.O., TELLICHERRY TALUK, KANNUR DISTRICT *** LEGAL HEIRS OF DECEASED 20TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 28 TO 35 AS PER ORDER DATED 03.04.2019 ON I.A.2784/2011** SA.No. 47 of 1997 5 ****** THE RESPONDENTS 29 TO 35 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED 28TH RESPONDENT AS PER ORDER DATED 07.12.2018 ON VIDE MEMO DATED 07.12.2018.** ******* THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL. R36 TO R38 AS PER ORDER DATED 3.4.2019 IN IA 2597/2017.** **BY ADVS. SRI.K.MOHANAKANNAN - FOR R11, R15 TO R19 SMT.T.V.NEEMA SRI.C.VATHSALAN - FOR R11 TO R13 SRI.K.RAKESH ROSHAN -FOR R11 TO R13 SRI.V.V.ASOKAN (SR.)- FOR R2 TO R10 SRI.K.LAKSHMI NARAYANAN -ADDL R29 TO R35 SMT.SATHYASHREE PRIYA -ADDL R29 TO R35** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 47 of 1997 6 ## **JUDGMENT** Defendants 18 to 22 and 24 in a suit for partition are the appellants in the second appeal. 2. The property sought to be partitioned in the suit is an item originally held by one Kelu Kurup. Kelu Kurup gifted the property to his nieces namely Mathu, Parvathi, Lekshmi and Madhavi. Exhibit A1 is the Gift Deed executed by Kelu Kurup in this connection. The plaintiffs are persons claiming under Madhavi. The case set out by the plaintiffs in the plaint is that Ext.A1 is a gift in favour of the thavazhies of the four persons mentioned in the document and all the members of the four thavazhies are, therefore, entitled to a share in the property. A decree for partition was sought, in the circumstances, on that basis. 3. Among the donees in Exhibit A1, Parvathi was succeeded by her son Sankara Kurup. Sankara Kurup had married thrice. Defendant No.11 is the son of Sankara Kurup in his first wife. Defendant No.17 is the second wife and defendant No.19 is the third wife of Sankara Kurup. Defendant No.18 is the daughter born to Sankara Kurup in defendant No.17 and defendant Nos. 20 to 24 are the children born to Sankara Kurup in defendant No.19. In the suit, among others, defendant No.11 contended that he is the sole successor of Sankara Kurup. According to him, the marriages of Sankara Kurup with defendants 17 and 19 took place prior to the Hindu Marriage Act, 1955 SA.No. 47 of 1997 7 (the Act), at a point of time when the Madras Marumakkathayam Act 1932, was in force and the said marriages are void in terms of the provisions of the Act. It was his contention that since the said marriages are void, the children born to Sankara Kurup in the said marriages are not entitled to a share in the property of Sankara Kurup. Defendant No.23 refuted the said stand of defendant No.11. According to him, in the light of Section 16 of the Act, defendants 18 and 20 to 24 are also entitled to a share in the property inherited by Sankara Kurup, along with defendant No.11. 4. The trial court accepted the case of the plaintiffs and found that Sanakara Kurup is entitled to 1/12 share in the suit property. The court also found, placing reliance on the decision of this court in **Kalliani Amma v. Devi** (1989(2) KLT 80), that the benefit of Section 16 of the Hindu Marriage Act, 1955 conferring legitimacy to children born out of void marriages is not available to the children born out of void marriages held prior to the coming into force of the Act. Consequently, the trial court held that defendant No.11 is entitled to the share of deceased Sankara Kurup exclusively. A decree was passed by the trial court accordingly. Defendants 2 and 6 to 10 as also defendant No.23 preferred appeals challenging the decision of the trial court. The appeal filed by defendants 2 and 6 to 10 was in relation to the contention taken by them in the suit that Exhibit A1 was a gift in favour of the individuals mentioned in the document and not in favour SA.No. 47 of 1997 8 of their thavazhies as claimed by the plaintiffs. The appeal preferred by defendant No.23, on the other hand, was in relation to the exclusive right claimed by defendant No.11 over the share of property held by Sankara Kurup. The appellate court affirmed the decision of the trial court and dismissed the appeals. As noted, defendants 18 to 22 and 24 are aggrieved by the decision in the suit as affirmed in appeal. 5. Heard the learned counsel for the appellants as also the learned counsel for the contesting respondents. 6. The learned counsel for the appellants contended that the finding rendered by the trial court that defendant No.11 is the sole legal representative of deceased Sankara Kurup is based on the decision of this court in **Kalliani Amma v. Devi** (1989(2) KLT 80). According to the learned counsel, the judgment in the said case was reversed by the Apex Court holding that children born out of void marriages are also entitled to the benefit of Section 16 of the Act, notwithstanding whether the marriages took place prior to or after the commencement of the Act. The learned counsel for the appellants also brought to the notice of this court the decision rendered by the Apex Court in this connection, reported in **Kalliani Amma** v. **K.Devi** [1996(2) KLT 42 (SC)]. According to the learned counsel, in the light of the said decision, the decision of the trial court is liable to be modified making it clear that defendants 11, 18 and 20 to 24 are together entitled to 1/12 share in the suit property. SA.No. 47 of 1997 9 7. The learned counsel for defendant No.11 has not disputed the fact that the decision of this court in **Kalliyani Amma** has been reversed by the Apex Court. His contention, however, was that in terms of Section 16 of the Act, children born out of the void marriages are entitled to share only in the self acquired properties of their parents. According to the counsel, the suit property being the thavazhi property of Sankara Kurup, defendants 18 and 20 to 24 cannot claim any right in the suit property. The learned counsel placed reliance on sub-section (3) of Section 16 of the Act, in support of the said contention. It was argued by the learned counsel that in terms of the said provision, it is clarified that nothing contained in sub-sections (1) and (2) of the Section shall be construed as conferring upon any child of a marriage which is null and void any rights in or to the property of any person, other than the parents, in any case where, but for the passing of the 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. The contention of the learned counsel, in essence, was therefore, that children born out of void marriages would be able to claim rights only over the self acquired properties of their parents. The learned counsel placed reliance on the decisions of the Apex Court in **Jinia Keotin v. Kumar Sitaram** , 2003(1) KLT 348 (SC), **Neelamma and others v. Sarojamma and others** , (2006) 9 SCC 612 and **Bharatha Matha v. Vijaya Renganadhan** , AIR 2010 SA.No. 47 of 1997 10 SC 2685. The learned counsel also placed reliance on the order passed by the Apex Court in Civil Appeal No.9948 of 2016, in support of his argument. It was pointed out that since a similar matter was decided by this court without considering the issue relating to the nature of the property involved, the Apex Court, in terms of the said order remitted the matter to this court for fresh consideration. 8. In reply to the argument advanced by the learned counsel for defendant No.11, the learned counsel for the appellants pointed out that though the suit property was the thavazhi property of Sankara Kurup, as Sankara Kurup died after the Hindu Succession Act, 1956, in terms of Section 17 of the said Act, his interest in the property devolved on his Class I heirs as provided for under the Schedule to the said Act. According to the learned counsel, the prohibition under sub-section (3) of Section 16 of the Act for children born out of void marriages is only in the matter of claiming rights over the properties other than that of their parents and the said prohibition would not apply to the facts of the present case. It was also pointed out by the learned counsel that after the advent of the Kerala Joint Hindu Family System (Abolition) Act 1976, the character of the property is also changed and the share of Sankara Kurup in the said property devolved on his legal representatives has acquired all the characteristics of a separate property in contradistinction to their ancestral property. According to the learned counsel, though the SA.No. 47 of 1997 11 expression 'self acquired property' is used in the decisions cited by the learned counsel for defendant No.11, such an expression is not used in this Section and the said expression is used by the Apex Court in the decisions only to mean separate property of the parents of the children born out of void marriages. 9. Having heard the learned counsel for the appellants, the following substantial questions of law are formulated for decision in the second appeal. (1) Are the children born out of void marriages entitled, in terms of Section 16 of the Act, rights only in the self acquired properties of their parents? (2) Are the children born out of void marriages entitled, in terms of Section 16 of the Act, rights in the ancestral properties held by their parents which have the characteristics of self acquired properties? ## 10. Section 16 of the Act reads thus: “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 and whether or not the marriage is held to be void otherwise than on a petition under this Act. SA.No. 47 of 1997 12 (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.]” As evident from the extracted provision, sub-section (3) of Section 16 only precludes children born out of void marriages from claiming rights in or to the properties held by persons other than their parents, where, but for the said provision, such children would have been incapable of claiming rights by reason of them being illegitimate children of their parents. For instance, in a given case where the grandfather of the children was holding property and on his death, the children could have claimed rights in that property as the children of the predeceased son of the grandfather, but precluded from claiming rights in such properties by reason of their illegitimacy, they cannot claim the benefit of Section 16 of the Act. But as far as the present case is concerned, the right is claimed by the children born out of void marriages in a property held by the father in his capacity as a member of the joint family which unlike a coparcenary property devolved on his class I SA.No. 47 of 1997 13 shares in terms of the schedule to the Hindu Succession Act. Further, as rightly pointed out by the learned counsel for the appellants, after the advent of the Kerala Joint Hindu Family System (Abolition) Act 1976, the character of the said property is also changed and the share of Sankara Kurup in the said property devolved on his legal representatives has acquired all the characteristics of a separate property in contradistinction to their ancestral property. This is evident also from the fact that had Sankara Kurup been alive when the Kerala Joint Hindu Family System (Abolition) Act 1976 was introduced, the property sought to be partitioned would have had all the characteristics of a self-acquired property of Sankara Kurup. The object and purpose of Section 16 being to advance the socially beneficial purpose of removing the stigma of illegitimacy on children born out of void marriages who are as innocent as any other children, there is absolutely no reason why such children shall be denied rights in such properties, especially in suits instituted after the Kerala Joint Hindu Family System (Abolition) Act, 1976. The question arose for consideration in the cases cited by the learned counsel for defendant No.11 was as to whether the children born out of the void marriages are entitled to claim rights over the interest of their father in his coparcenary property. Coparcenary property, unlike marumakkathayam property, would become property of other members of the coparcenary on the death of a member. It is in that SA.No. 47 of 1997 14 context it was held by the Apex Court in the said cases that the children born out of void marriages would be entitled to claim a share only in the self acquired properties of their parents. The expression 'self acquired properties' is used in the said judgments in contradistinction to properties held by persons other than the parents of the children born out of void marriages. Those judgements, according to me, cannot have any application to the facts of the present case. The questions are thus answered in favour of the appellants. In the result, the second appeal is allowed and the decree passed by the trial court as affirmed by the appellate court is modified holding that defendants 11,18 and 20 to 24 are entitled to be treated as the legal representatives of deceased Sankara Kurup, who is entitled to 1/12 share in the suit property. ## **Sd/-** ## **P.B.SURESH KUMAR** ## **SKS** ## **JUDGE** **The expression “the learned counsel for defendant No.11 contained in paragraphs 7 and 8 of the judgment is corrected as “the learned counsel for the legal representatives of defendant No.11” as per order dated 11.07.2019 in I.A.1/2019** sd/- Deputy Registrar.