REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS

Citation: 2023 INSC 783, [2023] 14 S.C.R. 320

Court: Supreme Court of India

Bench: DR. DHANANJAYA Y. CHANDRACHUD, CJI, J.B. PARDIWALA AND MANOJ MISRA, JJ.

Judgment text

SUPREME COURT OF INDIA REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. Civil Appeal No. 2844 of 2011 [2023] 14 S. C. R. 320 : 2023 INSC 783 CASE DETAILS REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. (Civil Appeal No. 2844 of 2011) SEPTEMBER 01, 2023 [DR. DHANANJAYA Y. CHANDRACHUD, CJI, J. B. PARDIWALA AND MANOJ MISRA, JJ. ] HEADNOTES Issue for consideration: Whether a child who is conferred with legislative legitimacy u/s. 16(1) or 16(2) is, by reason of s. 16(3), of the Hindu Succession Act, 1956 entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents. Hindu Marriage Act, 1955 - s. 16 - Children of void and voidable marriages - Conferment of legitimacy - Inheritance rights of legitimised children: Held: While conferring legitimacy in terms of s. 16(1) on a child born from a marriage which is void u/s. 11, and under s.

16(2) to a child born from a voidable marriage which has been annulled by a decree of nullity u/s. 12, it is stipulated in s. 16(3) that such a child will have rights to or in the property of the parents and not in the property of any other person - ss. 11, 12. [Para 54(iii)] Hindu Succession Act 1956 - s. 3(1)(j) - 'related by legitimate kinship' - Construction of the provisions of s. 3(1)(j) including the proviso: Held: Legitimacy conferred by s. 16 of the HMA 1955 on a child born from a void or, voidable marriage has to be read into the provisions of the HSA 1956 - Child who is legitimate under sub-section (1) or sub-section (2) of s. 16 of the HMA would, for the purposes of s. 3(1)(j), fall within the ambit of the explanation 'related by legitimate kinship' and cannot be 320 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 321 regarded as an 'illegitimate child' for the purposes of the proviso - Hindu Marriage Act, 1955 - s. 16. [Para 54(iv)] Hindu Succession Act 1956 - s.

6 - Devolution of interest in coparcenary property - Substitution of s. 6 by Act 39 of 2005 - Eff ect: Held: By the substitution of s. 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of s. 6 - In terms of sub-section (3) of s. 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, and not by survivorship - Said rule of devolution has been made the norm - Prior to the substitution of s. 6 by the Amending Act of 2005, s.

6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary - Exception to devolution by survivorship was where the deceased had left surviving a female relative specifi ed in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession. [Para 54(v), (vi)] Hindu Succession Act 1956 - s. 6 - Devolution of interest in coparcenary property - Ascertainment of share on basis of notional partition: Held: While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, s.

6(3) lays down a legal fi ction namely that the coparcenary property shall be deemed to have been divided as if a partition had taken place - For ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of aff airs immediately prior to the death of the coparcener - Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children conferred with legitimacy u/s. 16 of the HMA, would be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if Hindu Succession Act 1956 - s. 6(3) - Hindu Marriage Act, 1955 - s. 16 - s. 16(3) of the HMA 1955 and s. 6(3) of the HSA 1956, if inconsistent: Held: There is no inconsistency between s. 16(3) of the HMA 1955 and s. 6(3) of the HSA 1956 - Provisions of the HSA 1956 have to be harmonized with the mandate in s.

16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) of s. 16, will not be entitled to rights in or to the property of any person other than the parents - Property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3) [Para 54(x)] Judgments/orders - Two judge Bench of this Court in its referring judgment Revanasiddappa v. Mallikarjun held that the illegitimate children will have right in the coparcenary property of their parents, self acquired or ancestral - Reconsideration: Held: There is a degree of contradiction in the referring judgment which needs to be clarifi ed and set at rest - Thus, reference answered holding that the children born out of the void or voidable marriage entitled to share in the property of their deceased parents and not in the property of any other person.

[Para 53] Mitakshara Law - Joint Hindu family - Description of: Held: It comprises of male members who are lineal descendants from a common male ancestor, together with their mothers, wives or widows and unmarried daughters - Joint Hindu family has been described as 'a larger body' consisting of a group of persons united by sapindaship or family relationship. [Para 21] Mitakshara Law - Hindu coparcenary - Composition of: Held: It comprises of a propositus and three lineal descendants - Hindu coparcenary is a body which is narrower than a Hindu Undivided Family - Before 2005, it included only sons, grandsons and great-grandsons who were holders of joint property - Hallmark of a coparcenary is that a lineal male descendent up to the third generation would acquire an independent REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 323 right of ownership by birth and the interest of a deceased member would lapse on his death and merge in the coparcenary property.

[Paras 22-25] Hindu Succession Act, 1956 - s. 6 - Devolution of interest in coparcenary property in a joint Hindu family governed by Mitakshara law - Position prior to its substitution by Act 39 of 2005 and after substitution of s. 6 by Act 39 of 2005 - Coparcenary rights on daughters in Joint Hindu families governed by Mitakshara law - Explained. [Paras 26-41] Mitakshara law - Joint Hindu families governed thereunder - Provisions of the HSA 1956 in relation to Joint Hindu families of that class - Interpretation of - Hindu Succession Act, 1956. [Para 55] LIST OF CITATIONS AND OTHER REFERENCES Jinia Keotin v Kumar Sitaram Manjhi (2003) 1 SCC 730: [2002] 5 Suppl. SCR 689; Neelamma v Sarojamma (2006) 9 SCC 612; Bharatha Matha v R Vijaya Renganathan (2010) 11 SCC 483: [2010] 7 SCR 154; Revanasiddappa v Mallikarjun (2011) 11 SCC 1: [2011] 4 SCR 675; Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) v K Devi (1996) 4 SCC 76: [1996] 2 Suppl. SCR 1; Ashwani Kumar v.

Union of India (2020) 13 SCC 585: [2019] 12 SCR 30; Sushil Kumar v. Ram Prakash (1988) 2 SCC 77: [1988] 2 SCR 623; Smt Sitabai v. Ramchandra (1969) 2 SCC 544: [1970] 2 SCR 1; Gowli Buddanna v. CIT, Mysore, Bangalore AIR 1966 SC 1523: [1966] SCR 224; Surjit Lal Chhabda v. Commissioner of Income Tax Bombay (1976) 3 SCC 142: [1976] 2 SCR 164; Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1: [2020] 10 SCR 135; State Bank of India v. Ghamandi Ram (1969) 2 SCC 33: [1969] 3 SCR 681; Controller of Estate Duty, Madras v. Alladi Kuppuswamy (1977) 3 SCC 385: [1977] 3 SCR 721; State of Maharashtra v. Narayan Rao Sham Rao Deshmukh (1985) 2 SCC 321: [1985] 3 SCR 358; Vellikannu v. R Singaperumal (2005) 6 SCC 622: [2005] 1 Suppl. SCR 160; Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419: [2013] 7 SCR 897; Katama Natchier v. Rajah of Shivagunga 1863 SCC OnLine PC 11; Gurupad Khandappa v. Hirabai Khandappa Magdum (1978) 3 SCC 383: [1978] 3 SCR 761; Shantaram Tukaram Patil v.

Dagubai Tukaram Patil 1987 SCC OnLine Bom 9: 1987 Mah LJ 179; Bhaurao Shankar Lokhande Vs State of Maharashtra (1965) 2 SCR 837 - referred to. 324 SUPREME COURT REPORTS [2023] 14 S. C. R. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2844 of 2011. From the Judgment and Order dated 07. 11. 2008 of the High Court of Karnataka, Circuit Bench at Gulbarga in R. S. A. No. 550 of 2006. With Civil Appeal No. 2312 of 2021, SLP (C) Nos. 23397-98 of 2018, Civil Appeal No. 7318 of 2014, SLP (C) No. 81 of 2016, Civil Appeal No. 4398 of 2019, SLP (C) Nos. 14176-77 of 2016, 27834 of 2017 and 1573-74 of 2021 Appearances: Ms. Kiran Suri, TSR Venkataramana Sr. Advs. , Ms. Manju Jetley, Vivek Solshe, Amol B. Karande, Raj Saheb Patil, Narendar Rao Thaneer, Varun Solshe, Shivangi Singh, Aditya Yadav, Ms. Palak Mathur, Satyajit A Desai, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, Ms. Anagha S.

Desai, Sudhanshu S. Choudhari, Ms. Jaikriti S. Jadeja, Amaan Shreyas, Mahesh P. Shinde, Ms. Rucha A. Pande, M. Veeraragavan, Yashaswini Chauhan, S. J. Amith, Ms. Aishwarya Kumar, Ms. Vidushi Garg, Purvesh Buttan, Dr. (Mrs. ) Vipin Gupta, Ranbir Singh Yadav, Prateek Yadav, Puran Mal Saini, Ms. Anzu K Varkey, Ritesh Patil, Yogesh Yadav, Pati Raj Yadav, Mohammed Shahrukh, R. Sathish, G S Y, Ms. Janaki Devi, Abhay Singh Yadav, Nikhil Majithia, Neeleshwar Pavani, Harshit Agarwal, Aasheesh Gupta, Kamal Kumar, Advs. for the Appellants. K. Radhakrishna, Ms. V Mohana, Vivek Chib, A. I. S. Cheema, Sr. Advs. , Mrs. Rajani. K. Prasad, B. Krishna Prasad, Ms. Abha R. Sharma, Apoorv Kurup, Rohit Anil Rathi, Vijay Kumar Panpalia, Chandra Prakash, P. B. Suresh, Vipin Nair, Arindam Ghosh, Karthik Jayashankar, Anshumaan Bahadur, P. B. Sashaankh, Abid Ali Beeran P, Ms. Bhavya Pande, Ms. Sneha Botwe, Ms. Yashika Sharma, B Ragunath, Ms Vishnushankar, Mrs. Nc Kavitha, Ms. Unnati Jhujhunwala, Ms.

Mansi Gupta, Vijay Kumar, S. Rajappa, V Prabhakar, Ms. Jyoti Parashar, Nj Ramchandar, R Gowrishankar, Avinash B. Amarnath, Mukesh K. Giri, Nishant Ramakantrao Katneshwarkar, Samrat Krishnarao Shinde, Kunal Cheema, Ms. Ruchita Kunal Cheema, Shivam Dube, Raghav Deshpande, Shirish K. Deshpande, REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 325 Ms. Rucha Pravin Mandlik, Ms. Harsimran Kaur Rai, Mohit Gautam, Apoorv Sharma, Shanthkumar V Mahale, Rajesh Mahale, Sriram P. , Ms. Jyotika Kalra, Joydeep Mukherjee, Ms. Annwesha Deb, Lakshmi Raman Singh, H. Chandra Sekhar, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT 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 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 1 The Hindu Marriage Act 1955 (HMA) 326 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 specifi cally safeguarded under Section 16, they ought not to be treated on par with children born from a lawful 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 Sarojamma5and 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, 2 Section 16(2) of HMA 3 (2003) 1 SCC 730 4 At page 732, para 2 5 (2006) 9 SCC 612 6 (2010) 11 SCC 483 7 At page 513, para 29 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 327 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 andwill be onpar 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 benefi cial purpose of removing the stigma of illegitimacy faced by children of such marriages, since the children themselves are innocent; (iv) The benefi t 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. 8 (2011) 11 SCC 1 9 At para 29 page 9 10 At para 36 page 10 328 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 off spring 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 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 confi ned 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 specifi es, 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 fulfi lled, 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 suff ering from mental disorder of such a kind or to such an extent as to be unfi t for marriage and the procreation of REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 329 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 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. 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 theretoagainst the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specifi ed 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 specifi ed 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 specifi ed 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 330 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 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 may be, the fraud had been discovered; (b) on the ground specifi ed in clause (d) of sub-section (1) shall be entertained unless the court is satisfi ed-- (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 this Act 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 the petitioner of the existence of the said ground.

" REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 331 [DR. DHANANJAYA Y CHANDRACHUD, CJI] decree was made. 9. The manner in which Section 16 was drafted gave rise to two consequences: fi rstly, 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 protection under Section 16 was not available. Secondly, children born from void or voidable marriages were artifi cially 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 refl ected in the Act which unfortunately suff ered 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 suff er 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 14 (1996) 4 SCC 76 332 SUPREME COURT REPORTS [2023] 14 S. C. R. premises to adopt, which were thus: "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 fi lius 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 fi de 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 justifi cation 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 and whether or not the marriage is held to be void otherwise than on a petition under this Act. REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 333 [DR. DHANANJAYA Y CHANDRACHUD, CJI] (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 nullifi es only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefi t 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 eff ectively 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 classifi es 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 fi ction: by a rule of 'fi ctio 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 fi ction 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 fi ction 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. " 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 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 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 335 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 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 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 notifi cation in the Offi cial 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. 336 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 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 fi rst 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 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 337 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 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, confi ned the rights of the child to or in the property of the parents and nota 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 - fi rst, 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 specifi c 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). 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. 338 SUPREME COURT REPORTS [2023] 14 S. C. R. 19. At this stage, it would be necessary to dwellon 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 fi rst, 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.

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 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 339 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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 diff erence 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 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 fi ction, which cannot be overlooked. Once a legal fi ction 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 qualifi cation 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. 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 2 340 SUPREME COURT REPORTS [2023] 14 S. C. R. 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 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 diff erent 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 eff ect to the provisions of the Act in matters specifi cally covered thereunder. The Act does not defi ne 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 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. 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. REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 341 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 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.

The above, interpretation is questioned on the basis of the following formulations: a. There is a diff erence 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) clarifi es 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 classifi cation with an intelligible diff erentia, which justifi es treating children from various marriages diff erently due to distinct legal status. This classifi cation safeguards the interests of both legitimate off spring 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 confi ned to parental property, excluding coparcenary or ancestral property, as evidenced by the legislative history and objectives. 28 24 Written submissions on behalf of the Petitioners in Balkrishna Pandurang Halde vs Yeshodabai Balkrishna Halde by Mr. Sudhanshu Choudhari, page 8 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 (c) 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 (c) 14176-14177 of 2016 342 SUPREME COURT REPORTS [2023] 14 S. C. R. d. The Legislature has intervened multiple times to address inheritance rights of legitimised children: 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 coparcenary property. 29 Thus, there is no legislative vacuum as far as the rights of the children born out of void or voidable marriages are concerned. As such, judicial intervention to broaden the scope of the rights of such children is not warranted. e.

Through various amendments, Parliament has ensured that these children possess inheritance rights within the scope of their parents' property. 30 This process has converted inherited property into the parents' self-acquired property, thereby enabling legitimate children to utilize the benefi ts outlined in Section 16 of the HMA. In such instances, the Parliament's interventions were aimed at reconciling the Mitakshara Law with the evolving considerations of public policy, thereby striking a balance between safeguarding the interests of these children and other coparceners. 31 29 Submitted by Mr Vivek Chib, Senior Advocate on behalf of the Respondents No. 71 and 81 in Baby @ Rohini (Since Deceased) Rep by her Legal Representatives and Ors v Kamalam Kumaresan and Ors, SLP (C) No. 14176-14177 of 2016 30 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 (c) 14176-14177 of 2016 31 Submitted by Mr Vivek Chib, Senior Advocate on behalf of the Respondents No. 71 and 81 in Baby @ Rohini (Since Deceased) Rep by her Legal Representatives and Ors v Kamalam Kumaresan and Ors, SLP (C) No 14176-14177 of 2016 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 343 [DR. DHANANJAYA Y CHANDRACHUD, CJI] f. The 1976 Amendment was intended to clarify and reinforce the limited scope of inheritance rights under Section 16. 32 This is exemplifi ed by the decision in Ashwani Kumar v. Union of India33, which demonstrates how legislative actions and amendments consistently address potential legal voids, ensuring no gaps in the law concerning the inheritance rights of all legitimate Children. F. Joint Hindu family and coparcenary under Mitakshara 21. Traditionally, a Joint Hindu family comprises of male members who are lineal descendants from a common male ancestor, together with their mothers, wives or widows and unmarried daughters.

A Joint Hindu family has been described as 'a larger body' consisting of a group of persons united by sapindaship or family relationship34. 22. A Hindu coparcenary comprises of a propositus and three lineal descendants. A Hindu coparcenary is a body which is narrower than a Hindu Undivided Family. Before 2005, it included only sons, grandsons and greatgrandsons who were holders of joint property. 35 (Vineeta Sharma v. Rakesh Sharma36 ("Vineeta Sharma"). 23. In State Bank of India v. Ghamandi Ram37 ("Ghamandi Ram"), this Court observed that under the Mitakshara school of Hindu law, all the 32 Submitted by Mr. Samrat K Shinde, Advocate on Record on behalf of the Respondents in Hanumant Namdeo Jadhav & Ors v Kashibai Namdeo Jadhav & Ors, SLP (C) No. 27834 of 2017 33 (2020) 13 SCC 585 34 Sunil Kumar v. Ram Prakash:(1988) 2 SCC 77; Smt Sitabai v. Ramchandra : (1969) 2 SCC 544; Gowli Buddanna v. CIT, Mysore, Bangalore : AIR 1966 SC 1523; Surjit Lal Chhabda v.

Commissioner of Income Tax Bombay : (1976) 3 SCC 142 35 "23. Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons and great-grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great-grandson, and E is a great-great-grandson. The coparcenary will be formed up to D i. e. great-grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confi ned to three lineal descendants. Since grandsons and great-grandsons become coparceners by birth, they acquired an interest in the property. " 36 (2020) 9 SCC 1 property of a Hindu Joint Family is held in collective ownership by all the coparceners in a "quasi-corporate capacity".

The Court held that the incidents of a coparcenary are that: (i) The lineal male descendants of a person up to a third generation acquire on birth ownership in the ancestral properties of such person; (ii) Such descendants can at any time work out their rights by seeking partition; (iii) Until partition, the ownership of every member of the coparcenary extends over the entire property conjointly with the rest; (iv) The consequence of such co-ownership is that possession and enjoyment of the properties is common; (v) No alienation of the property is possible unless it is for a necessity, without the concurrence of the coparceners; and (vi) The deceased member's interest in a coparcenary lapses on his death in favor of his survivors. 24. The hallmark of a coparcenary is that a lineal male descendent up to the third generation would acquire an independent right of ownership by birth and the interest of a deceased member would lapse on his death and merge in the coparcenary property.

A member of the coparcenary has a right to demand partition. Until partition, the property is jointly owned by all, and individual shares cannot be predicated by coparceners. The principles enunciated in Ghamandi Ram (supra) were analysed and formulated in Controller of Estate Duty, Madras v. Alladi Kuppuswamy38,where the Court held: "33. ... a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, 38 (1977) 3 SCC 385 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 345 [DR.

DHANANJAYA Y CHANDRACHUD, CJI] each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is diffi cult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. " 25. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh39, this Court while reiterating that a Hindu coparcenary is a narrower body than a joint family observed: "40... "... Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary.

A coparcener acquires right in the coparcenary property by birth but his right can be defi nitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be defi nitely predicated since it is always capable of fl uctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. " The Court noted that the property of a joint family does not cease to belong to the family merely because only a single male member is left in the family. The Court elaborated on the distinction between the position in Mitakshara Hindu law and Dayabhaga law, observing: "40... 8... While under the Mitakshara Hindu law there is community of ownership and unity of possession of joint family property with all 39 (1985) 2 SCC 321 346 SUPREME COURT REPORTS [2023] 14 S. C. R.

the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defi ned share in the property and he is the owner of that share. But there is, however, unity of possession. The share does not fl uctuate by births and deaths. Thus it is seen that the recognition of the right to a defi nite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law. " Mitakshara law is founded on a community of interest which entails that the ownership of coparcenary property vests in the whole body of coparceners, jointly. The interest of a member of the coparcenary is a fl uctuating interest, one which is capable of being enlarged by deaths and diminished by births in the family. On partition, however, the coparcener's share crystallizes, and they become entitled to a defi nite share.

These principles have been reiterated in Vellikannu v. R Singaperumal40 and Rohit Chauhan v. Surinder Singh41. The interest of a coparcener is in that sense referred to as 'an undivided coparcenary' (see in this context, the decision of the Privy Council in Katama Natchier v. Rajah of Shivagunga42). The decision of the three judge Bench in Vineeta Sharma (supra) comprehensively analyses the precedents on the subject. G. Hindu Succession Act 1956 26. Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property in a joint Hindu family governed by Mitakshara law. Prior to its substitution by Act 39 of 2005, Section 6 provided as follows: "6. Devolution of interest in coparcenary property.

- When a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: 40 (2005) 6 SCC 622 41 (2013) 9 SCC 419 42 1863 SCC OnLine PC 11 REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 347 [DR. DHANANJAYA Y CHANDRACHUD, CJI] Provided that, if the deceased had left him surviving a female relative specifi ed in class I of the Schedule or a male relative specifi ed in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.

- For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2. - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. " 27. Section 6, as it stood prior to the amendment, provided that the coparcenary interest of a male Hindu who died after the commencement of the Act, would devolve by survivorship. Section 6, in other words, excluded the devolution of property by testamentary or intestate succession by expressly incorporating the principle of survivorship.

The proviso to Section 6 however contained an exception where the deceased had left surviving a female relative specifi ed in Class I of the Schedule or a male relative of the class who claimed through such a female relative in which case the interest of the deceased in the Mitakshara coparcenary property would devolve by testamentary or intestate succession of property under the Act and not by survivorship. Explanation 1 to Section 6 contained a deeming fi ction according to which for the purpose of the Section, the interest of a Hindu Mitakshara coparcener was deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. 28. The provisions of Section 6, as they stood prior to the amendment, came up for consideration before a three-judge Bench of this Court in Gurupad Khandappa v. Hirabai Khandappa Magdum43. In that case, 43 (1978) 3 SCC 383 348 SUPREME COURT REPORTS [2023] 14 S. C. R.

Khandappa, who had an interest in Mitakshara coparcenary property,died on 27 June 1960 leaving his wife Hirabai, his two sons, and three daughters. Hirabai instituted a suit for partition. Since the widow and daughters were amongst the family relatives specifi ed in Class I of the Schedule, the proviso to Section 6 came into play and the normal rule of survivorship was excluded. This Court noted that the plaintiff 's relief was determined by two things: (i) her share in her husband's share; and (ii) her husband's own share in the coparcenary property. Since the deceased was survived by two sons, three daughters and his widow, the Court observed that each of the six sharers would have an equal share of 1/6th. The next step was to determine the share which the deceased had in the coparcenary property. Elaborating on that, the Court held: "9.

The next step, equally important though not equally easy to work out, is to fi nd out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fi ction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of aff airs in which a little prior to Khandappa's death, a partition of the coparcenary property was eff ected between him and other members of the coparcenary. Though the plaintiff , not being a coparcener, was not entitled to demand partition yet if a partition were to take place between her husband and his two sons she would be entitled to receive a share equal to that of a son.

(See Mulla's Hindu Law, 14th Edn. p. 403, para 315). In a partition between Khandappa and his two sons there would be four sharers in the coparcenary property the fourth being Khandappa's wife, the plaintiff . Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons. " In a notional partition of the coparcenary property between him, his widow and his 2 sons, Khandappa would have obtained a 1/4th share. The share of the plaintiff in his 1/4th share was 1/6th, i. e. 1/24th. This Court held that there was no justifi cation to limit the share of the plaintiff to 1/24th by REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 349 [DR. DHANANJAYA Y CHANDRACHUD, CJI] ignoring the 1/4th share which she would have obtained had there been an actual partition during her husband's lifetime between him and his two sons.

The Court held that the Explanation to Section 6 "compels the assumption of a fi ction" that in fact a partition of the property had taken place immediately before the death of the person in whose property the heirs claimed a share. This Court held: "13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very fi rst step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fi ctional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.

What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle.

All the consequences which fl ow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot 350 SUPREME COURT REPORTS [2023] 14 S. C. R. generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. " 29.

In its 174th Report titled "Property Rights of Women: Proposed Reforms Under the Hindu Law" (5 May 2000). The Law Commission of India noted that "the exclusion of daughters from participating in the ownership of coparcenary property merely by reason of their sex is unjust". By the time that the Law Commission submitted its report, it noted that Andhra Pradesh, Tamil Nadu, Maharashtra, and Karnataka had incorporated amendments that would ensure that in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son (see paras 3. 1 and 3. 2. 1). Kerala, the Law Commission noted, had gone a step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetimebased on the mere fact that he or she was born in the family. "The report of the Law Commission led to the amendments of 2005 in the HSA 1956. 30.

Section 6 of the HSA 1956 was substituted by Act 39 of 2005. The HSA 2005 commenced on 9 September 2005. Section 6 (1) as amended provides as follows: "6. Devolution of interest in coparcenary property.

--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall aff ect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. " REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 351 [DR.

DHANANJAYA Y CHANDRACHUD, CJI] The Statement of Objects and Reasons accompanying the introduction of the Bill noted that: "Statement of Objects and Reasons... Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. " 31. The Parliamentary amendment, as the Statement of Objects and Reasons indicates, "proposed to remove the discrimination as contained in Section 6...

by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have". The Amendment also omitted Section 23 which disentitled a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs chose to divide their respective shares. The impact of the substitution of Section 6 of Act 39 of 2005 is that a daughter of a coparcener shall (i) become a coparcener in her own right by birth in the same manner as a son; (ii) have the same rights in the coparcenary property as she would have if she had been a son; and (iii) be subject to the same liabilities in respect of the coparcenary property as a son. 32. Amended Section 6(3) provides as follows: "(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by [2023] 14 S. C. R.

Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.

―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. " 33. Before the Amendment, Section 6 provided that on the death of "a male Hindu", his interest in Mitakshara coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the mode of succession provided in the Act. Section 6 (3) of the amended provision now stipulates that on "a Hindu" dying after the commencement of the amending Act, his interest in the property of a joint Hindu family governed by Mitakshara law devolves by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. 34. In Vineeta Sharma, this Court held: "60...

The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w. e. f. 9-9-2005, the provisions are of retroactive application; they confer benefi ts based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. " REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 353 [DR. DHANANJAYA Y CHANDRACHUD, CJI] 35. The Amending Act of 2005 substituted Section 6 of the HSA 1956 for the erstwhile provision. The insertion of sub-sections (1) and (2) conferred coparcenary rights on daughters in Joint Hindu families governed by Mitakshara law.

Property to which a female Hindu becomes entitled under sub-section (1) shall be held, in terms of sub-section (2), by her with the incidents of coparcenary ownership and is capable of being disposed of by testamentary disposition. Sub-section (3) of Section 6 has introduced a signifi cant change in the devolution of the interest in the property of a Joint Hindu family governed by Mitakshara law. Where a Hindu has died after 9 September 2005 (the date of commencement of the Amending Act), his interest in terms of sub-section (3) devolves by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. Prior to the amendment, the substantive part of Section 6 stipulated that the interest of a male Hindu in Mitakshara coparcenary property at the time of his death shall (i) devolve by survivorship upon the surviving members of the coparcenary; and (ii) not devolve in accordance with the Act.

The proviso, however, enunciated an exception where the deceased had left behind a surviving female relative specifi ed in Class I of the Schedule or a male relative in the class who claimed through such a female relative. Where the proviso applied, it stipulated that the interest of the deceased male Hindu shall (i) devolve by testamentary or intestate succession, as the case may be, under the Act; and (ii) not devolve by survivorship. 36. The principle of devolution by testamentary or intestate succession under the Act which was an exception prior to the Amending Act as set out in the proviso has now become the norm in sub-section (3) of Section 6. The daughter is in terms of sub-section (3) entitled to the same share as is allotted to a son. Prior to the Amendment of 2005, Explanation I defi ned in deeming terms the interest of a Hindu Mitakshara coparcener.

According to Explanation I, the interest of a Hindu Mitakshara coparcener was deemed to be the share in the property that would have been allotted to him if a partition 354 SUPREME COURT REPORTS [2023] 14 S. C. R. of the property had taken place immediately before his death, irrespective of whether or not he was entitled to claim partition. Explanation I as it stood prior to the Amending Act of 2005 has been introduced by the legislature as an Explanation to sub-section (3), post amendment. The Explanation to sub-section (3) mandates that the interest of a Hindu Mitakshara coparcener would be ascertained on the basis that a partition has taken place of the property immediately before his death. His interest is deemed to be the share in the property which would have been allotted in a partition at a point of time immediately before his death, irrespective of whether or not he was entitled to seek partition. 37.

The crucial words of sub-section (3) of Section 6, for the present purposes, are "shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship". Section 8 provides for the general rules of succession applicable to the devolution of the property of a male Hindu dying intestate. 44 The property devolves fi rstly, on the heirs specifi ed in Class I of the Schedule; if there is no heir of Class I, then, on the heirs specifi ed in Class II; if there is no heir in any of the two classes, on agnates and if there are no agnates, then upon the cognates of the deceased. Section 9 provides for the order of succession among the heirs in the Schedule. Section 10 provides for the distribution of property among heirs in Class I of the Schedule in the following terms: "10. Distribution of property among heirs in class I of the Schedule.

-- The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-- Rule 1. -- The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. 44 8. General Rules of Succession in the case of males. --The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-- (a) fi rstly, upon the heirs, being the relatives specifi ed in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specifi ed in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 355 [DR. DHANANJAYA Y CHANDRACHUD, CJI] Rule 2. -- The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3. -- The heirs in the branch of each pre-deceased son or each pre- deceased daughter of the intestate shall take between them one share. Rule 4. -- The distribution of the share referred to in Rule 3-- (i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions. " 38. In terms of Section 10, the division of property of an intestate among the heirs in Class - I is governed by the four Rules extracted above.

They stipulate that (i) the widow or if there is more than one all of them together shall take one share; (ii) the surviving sons and daughters and mother shall each take one share; and (iii) heirs in the branch of each pre-deceased son or each pre-deceased daughter take between them one share. 39. Rule 2 of Section 10 stipulates that "the surviving sons and daughters and the mother of the intestate shall each take one share". In using the expression "surviving sons and daughters" the HSA 1956 has not made any distinction based on the legitimacy of the child. Parliament, following well-settled principles of interpretation, would be cognizant of the legitimacy granted by the provisions of Section 16 of the HMA 1955 and the widening of the protection by the substitution of the provision in 1976. There is no reason or justifi cation to qualify the provisions of Rule 2 of Section 10 with reference to the legitimacy of the child.

Hence in dividing the property of an intestate in terms of Section 10 of the HSA 1956, no distinction can be made on the basis of such a classifi cation, once such a child is deemed 356 SUPREME COURT REPORTS [2023] 14 S. C. R. legitimate under Section 16 of the HMA 1955. Such a