The plea, of the appellants, that Rami Reddy's family from the second wife and the testator's family was a composite family and the properties were joint family properties of the plaintiffs and the defendants, has not been accepted by the trial court as well as High Court. We have no justifiable reason to take a different view on this aspect. 23 40. Importantly, Rami Reddy during his life time - although he survived for about 19 years after the death of the testator - never claimed any legacy under the subject will. 41. All in all, on the construction of the will and, in the circumstances, it must be held, and we hold that no legacy came to be vested in Rami Reddy and he did not become entitled to any interest in the estate of the testator and, therefore, the plaintiffs did not acquire any right, title or interest in the properties of Bijivemula Subba Reddy. 42. In view of the above, the challenge to the findings of the High Court on the plea of adverse possession set up by the defendants and the genuineness of the will executed by Pitchamma in 1953 pale into significance and needs no consideration.

                                                                                              

                                                                    REPORTABLE





                 IN THE SUPREME COURT OF INDIA

                   CIVIL APPELLATE JURISDICTION


                   CIVIL  APPEAL NO. 2916 OF 2005





Siddamurthy Jayarami Reddy (D) by LRs.                       .... Appellants


                                    Versus


Godi Jaya Rami Reddy & Anr.                                    ....Respondents





                                JUDGMENT


R.M. Lodha, J.





             The   controversy   in   this   appeal,   by   special   leave,   is


concerned   with   will   dated   May   21,   1920   executed   by   Bijivemula


Subba   Reddy   resident   of     Chennavaran,     village   Kattera   Gandla,


Badwel   Taluq,   Cuddapah   District.     The   question   is   one   of


construction upon which the two courts - High Court and trial court -


are not in accord and, have taken divergent view.





                                                                                    1


2.            At   the   time   of   execution   of   the   will,   Bijivemula   Subba


Reddy   -   a   Hindu   -   was   aged   about   75   years.   He   had   his   wife


Subbamma, daughter Pitchamma, son-in-law Rami Reddy, widowed


sister   Chennamma,   widowed   daughter-in-law     and   granddaughter


Lakshumamma living. His only   son Sesa Reddy had died in 1917.


The testator was man of sufficient wealth.  He had landed  property


(wet   and   dry   lands   and   wells)   at   various   places,   namely,   in


Katteragandla, Rampadu,   Varikuntla and   Thiruvengala Puram. He


also   owned   few   houses   and   plots   of   lands   at   different   places.   He


had moveable properties as well in the form of bonds, securities and


promissory notes. The will recites, as indeed is the undisputed fact,


that   the   testator,   except   one   house   situate   at   Kotha   Laxmipally


village in which he had 1/3rd  share,   was the absolute owner of the


properties  specified therein.


3.            Pitchamma   had   no   child   although   she   had   married     20


years before the execution of the will.   The testator desired that his


daughter Pitchamma adopted a son with the consent of her husband


and his granddaughter Lakshumamma got   married to the adopted


son of his daughter Pitchamma.





                                                                                      2


4.            The   will   is   written   in   vernacular   (Telugu).     The


correctness   of its English translation annexed with the appeal was


disputed   by   the   respondents.     The   parties   were   then   directed   to


submit agreed translation of the will which they did and that reads as


follows:




        "I, Bijivemula Subba Reddy son of Balachennu, resident of

        Chennavaran   village   Kattera   gandla,   Badwel   Taluq

        Cuddapah   District,   cultivation,   this   the   21st  day   of   May,

        1920, with sound mind, free will executing the will.


               Now I am aged about 75 years. My wife Subbamma

        is living. I had one son by name Sesa Reddy. He died at

        the age of 24 years, about three years back. He had one

        wife   and   one   daughter   aged   about   6   years   by   name

        Lakshumma.   I  have   one   daughter  by  name  Pitchamma.   I

        have given in marriage to one Rami Reddy adopted son of

        Siddamurthi Duggi Reddy, Papireddypally village Rampadu

        Majira., though she married about 20 years back,  but she

        has no issues.


               She   intended   to   take   a   boy   in   adoption   with   the

        consent of her husband.


               As   I  am   old   I  could   not   [sic]   able   to   run   my   family.

        After   the   death   of   my   son,   since   15   years,   the   above

        persons are looking after my family and my welfare.


               I have also one widow sister by name Chennamma.

        She  is   living  with   me  since  30  years.   She  is  also  helping

        me   in   all   aspects.   I   intend   to   give   my   grand   daughter

        Lakshumamma   to   the   proposed   adopted   son   of   my

        daughter Pitchamma.


               In the said event, I intend to give all my belongings,

        moveable and immovable properties to the said Lachumma

        and   the  adopted   son  of  my  daughter   Pitchamma.   But   my



                                                                                              3


daughter and her husband so far did not take any steps for

getting a boy in adoption. Now as I am sick and suffering

from fever and other ailments, I am doubting whether I can

perform the above said acts during my life time.


        I   own   lands   in   Katteragandla   Village,   Rampadu

village, Varikuntla village, and Thiruvengala puram village,

both wet and dry lands and also wells. I also own a Midde

in   Majira.   I   have   one   Beeruva   in   Pancha   of   my   house.   I

also   have   household   articles,   kallamettelu.   I   also   have

lands   in   Papireddypally   village   of   Rampadu   Majira,   two

plots and I have absolute rights in one of the same. I also

have   one   house   in   Kotha   Laxmipally   village,   of   Kathera

gandla majira and in that I have 1/3rd     share.   I also have

bonds   and   securities   and   promissory   notes   transactions.

As   I   have   the   above   said   moveable   and   immoveable

properties   and   as   I   am   having   absolute   rights   over   the

same,   none   others   have   any   rights   whatsoever   in   the

above   said   properties.   Therefore,   I   intend   to   execute   the

will and the same shall come into force after my demise.




                The following are the terms of the will.


              1)      After   my   demise,   my     grand   daughter,

                      Lachumamma who is the daughter of my

                      son   shall   have   absolute   rights   in   my

                      entire properties.


              2)      As   my   grand   daughter   is   minor,   till   she

                      attains   the   age   of   majority   and   attains

                      power   to   manage   the   above   said

                      properties,   I   hereby   appoint   my   son   in

                      law   Siddamurthy   ramireddy   as   executor

                      of the will till then.


              3)      According   to   the   will   of   my   grand

                      daughter   Laxmamma,   in   case   to   marry

                      the  adopted son  of  my daughter,  it  shall

                      be performed.


              4)      As   I     am   having   my   wife   Subbamma,

                      Widow daughter in law, Pitchamma, and


                                                                                 4


                              my   widow   sister   Chennamma,   the

                              present   guardian,   Ramireddy   and   my

                              grand   daughter   Laxmumma,   after

                              attaining   majority,   shall   look   after   the

                              above   persons.   If   they   do   not   satisfied

                              (sic)   with   the   above   arrangements,   they

                              shall enjoy my property with limited rights

                              and   necessary   arrangements   shall   be

                              made by the guardian and after him and

                              my   grand   daughter   Laxmamma   after

                              attaining majority.


                      5)      In case, as God's grace is not in favour of

                              my   aforesaid   proposals,   namely   if   my

                              daughter did not take any boy in adoption

                              and   if   the   said   boy   will   not   accept   to

                              marry   my   grand   daughter   Laxmamma,   I

                              intend   to   give   my   aforesaid   properties,

                              1/3rd  share   to   my   daughter   Pitchamma

                              and  her  husband  who  is  also   my  son   in

                              law   Ramireddy   together.   The   remaining

                              2/3rd share is given to my grand daughter

                              Laxmumma.


                      Accordingly   I   executed   the   will   and   they   have

               the   right   to   partition   and   they   shall   enjoy   the

               properties   after   division   with   absolute   rights   during

               their life time and thereafter their legal heirs"




5.             Bijivemula Subba Reddy died within   few months of the


execution   of   the   will.       After   few   years   of   death   of   the   testator,


Pitchamma   wanted     to   adopt   Godi   Venkat   Reddy     as   her   son   but


her   husband   Rami   Reddy   did   not   agree   to   that   adoption.   Rami


Reddy left the Village Chennavaran,  his wife Pitchamma and settled


in   other   village   -   Pappireddypally.   Rami   Reddy  then   married     with




                                                                                          5


Subbamma.     Out   of   the   wedlock   of   Rami   Reddy   and   his   second


wife, two sons were born : (i)  Siddamurthy Jayarami Reddy and (ii)


Siddamurthy Rami Reddy.


6.           Lakshumamma married Godi Venkat Reddy somewhere


in 1926 and out of that wedlock one son Godi Jayarami Reddy was


born.   Unfortunately  Godi Venkat Reddy died within three  years  of


marriage.     Godi   Jayarami   Reddy   has   one   son   Godi   Ramachandra


Reddy.       Rami   Reddy   died   in   1939;   Pitchamma   died   in   1953   and


Lakshumamma died in 1971.


7.           In   1980,   the   two   sons   of   Rami   Reddy,   born   out   of


wedlock of his second wife Subbamma, filed a suit for partition of the


schedule     properties   -   the   properties     bequeathed     by   Bijivemula


Subba Reddy vide his will dated May 21, 1920 - claiming 1/3rd share


therein under that will. They also claimed rent and profits. The case


of the plaintiffs was that they and the defendants were members of a


composite family and were in joint possession and  enjoyment of the


properties of Bijivemula Subba Reddy and as per the will they were


entitled to 1/3rd  share.     During the pendency of the suit, one of the


sons   died   and   his   legal   representatives   were   brought   on   record.


The plaintiffs  are the present appellants.




                                                                                  6


8.            The   defendants   traversed   the   claim   of   the   plaintiffs   and


set up the plea that there was a dispute between Pitchamma and her


husband Rami Reddy over the adoption of Godi Venkat Reddy;  Rami


Reddy   left   the   house   somewhere   in   1924   and   settled   in   Village


Pappireddypally.   It was averred that Rami Reddy married a second


wife   and   not   only   abandoned   Pitchamma   but   also   abandoned   his


rights   to   the   property   given   under   the   will.   Pitchamma   then   looked


after   the   family   in   the   absence   of   any   male   member,   managed   the


properties   and   got   the   patta   of   these   properties   transferred   in   the


name of Lakshumamma and bequeathed her share in the property by


a will  in 1953 to Lakshumamma.


9.            The defendants also set up the plea that Lakshumamma


purchased   few   properties   mentioned   in   the   schedule   from   her   own


resources in 1955.  They gave the  details of those properties.  They


further set up the case that Lakshumamma after executing the will on


March   6,   1953   partitioned   the   properties   between   herself   and   first


defendant.   By   way   of   additional   written   statement,   the   plea   of  res


judicata was raised.  The defendants are the respondents herein.





                                                                                     7


10.           On the basis of the pleadings of the parties, the trial court


framed diverse issues; the parties let in oral as well as documentary


evidence and the trial court heard the counsel for the parties.


11.           The trial court in its judgment dated December 22, 1986


negated   the   plaintiffs'   claim   that   they   and   the   defendants   were


members  of a composite  family  and   the subject  properties  were in


their   joint   possession   and   enjoyment.       However,   the   trial   court   did


hold  that  under  the  will  dated  May 21,  1920    Pitchamma  and  Rami


Reddy   got   1/6th  share   each   in   the   properties   of   the   testator.   While


concluding     so,   the   trial   court   held   that   there   was   no   condition


imposed in the will by the testator that his daughter Pitchamma and


son-in-law   Rami   Reddy   must   adopt   a   son   and   her   granddaughter


should marry the adopted son of Pitchamma and her husband. It was


only   a   pious   wish   of   Bijivemula   Subba   Reddy   that   his   daughter


Pitchamma adopted a son with the consent of her husband and that


his  granddaughter Lakshumamma  should marry the adopted  son  of


Pitchamma   and   her   husband.   The   trial   court   further   held   that   the


plaintiffs were not claiming the property directly as legatees under the


will but as legal heirs of Rami Reddy and Pitchamma since will had


come   into   force   and   was   acted   upon   after   the   death   of   Bijivemula




                                                                                      8


Subba Reddy and, accordingly, Pitchamma and Rami Reddy got 1/6th


share   each.     The   trial   court   also  held  that   the  property   acquired  by


Pitchamma by way of bequest under the will was a separate property


and   after   her   death,   it   devolved   upon   her   husband's   heirs   (i.e.


plaintiffs)   and,   thus,   plaintiffs   were   entitled   to   1/3rd  share   in   the


schedule   properties.     The   trial   court   negated   the   plea   of   adverse


possession   set   up   by   the   defendants   and   passed   a   preliminary


decree   for   partition   in   favour   of   plaintiffs   with   regard   to   their   1/3rd


share.


12.            The   defendants   (present   respondents)     challenged   the


judgment and decree  passed by  the  trial  court  in  appeal before the


High Court.  The High Court formulated three points for determination


in the   appeal viz; (i)   whether Rami Reddy failed to comply with the


obligations  cast on him under the will dated May 21, 1920 executed


by Bijivemula Subba Reddy and  he abandoned the family and if so,


whether   his   legal   heirs   (Plaintiffs)   could     claim   his   share   in   the


property of the   testator; (ii) whether will  executed by Pitchamma in


1953   was   genuine,   true   and   bona   fide   and   (iii)   whether   the


defendants   have   acquired   rights   in   the   schedule   properties   by


adverse possession.




                                                                                            9


13.           The   High   Court   held   that   it   was   obligated   upon   Rami


Reddy under the will to maintain the dependants of the testator   and


act as an executor of the will.   Rami Reddy failed to discharge both


obligations   -   in   maintaining   the   dependants   of   the   testator   and     in


acting   -   as   executor.   The   High   Court,   thus,   concluded   that   Rami


Reddy   could   not   claim   any   property   under   the   will.   The   High   Court


overturned the finding of the trial court as regards  the will  executed


by    Pitchamma  and  held  that   the  will   executed   by  her  in   1953   was


genuine and true. As regards plea of adverse possession set up by


the defendants--although negated by the trial court--the High Court


held that  there  was ouster of  the  plaintiffs  60  years  back and there


was   no   semblance   of   any   enjoyment   of   property   by   the   plaintiffs'


predecessors-in-title along with the defendants jointly. Consequently,


the   High   Court   by   its   judgment   dated   April   20,   2003   reversed   the


judgment   and   decree   of   the   trial   court   and   allowed   the   appeal


preferred by the defendants.


14.           It   is   from   the   judgment   of   the   High   Court   that   present


appeal by special leave arises.


15.           Mr.   R.   Sundaravaradan,   learned   senior   counsel   for   the


appellants argued: The importation of Section 57 and Section 141 of




                                                                                     10


Indian   Succession   Act,   1925   (for   short,   `the   1925   Act')   is   wholly


inappropriate since the present case is concerned with the muffussil


will   of   a   Hindu   dated   May   21,   1920   with   regard   to   the     properties


situate   outside   the   city     of   Madras.   The     muffussil   wills   (executed


before   1927)   do   not   require   the   formalities   of   execution,   attestation


and revocation to be carried out in the manner required by the 1925


Act.   The   parties did not join issue about the truthfulness of the will


and   there   was   only   dispute   about   its   construction   and


implementation. Even if it be assumed that Section 141 of the 1925


Act is attracted, the same has been complied with; the  attesters were


already  dead.


16.            It was vehemently contended by Mr. R. Sundaravaradan


that   the   property   vested   in   the   executor   in   1920   on   the   death   of


testator and Section 141 of the 1925 Act, even if applicable, could not


divest   such   vesting   in   title.   Dealing   with   the   expression   "take   the


legacy" in Section 141, it was argued by learned senior counsel  that


the   said   expression   means     taking   possession   of   legacy     and     not


vesting  of the  legacy.  He submitted  that the word "executor" used


in the will has been used in loose sense of the term; Rami Reddy was


the son-in-law of the testator, he was looking after and managing the




                                                                                       11


lands and, therefore, the legacy bequeathed to him was  not because


he   was   to   be   the   executor   in   strict   sense   but   because   he   was   the


testator's son-in-law and manager.


17.            Learned senior counsel submitted that   there is no legal


evidence   of   mismanagement,   malversation   or   misappropriation   and


a vague allegation that the executor has not done his job required no


serious consideration.     He argued that the marriage of Rami Reddy


with Subbamma was with the consent of Pitchamma and there was


no legal impediment for a Hindu to have a second wife before Hindu


Succession   Act,   1956   or   Bigamy   Prevention   Act,   1949   especially


when   Pitchamma   was   barren   and   it   is   indeed   a   legal   requirement


based   on   Shastric   injunction   to   have   progeny   so   that   religious


efficacy   of   satisfying   the   souls   of   forefathers   is   completed.   Learned


senior counsel  contended that there was no voluntary and conscious


abandonment by Rami Reddy and the High Court was in clear error


in holding so.


18.            Mr. R. Sundaravaradan criticized the findings of the High


Court   on   the   plea   of   adverse   possession   set   up   by   the   defendants


and genuineness of the will executed by Pitchamma in 1953 in favour


of Lakshumamma.




                                                                                       12


19.            Mr.   P.S.   Narasimha,   learned   senior   counsel   for   the


respondents, on the other hand, supported the judgment of the High


Court.


20.            Indian   Succession   Act,   1865   (for   short,   `the   1865   Act')


was enacted to provide for intestate and testamentary succession in


British   India.   Section   331   of   the   1865   Act,   however,   excluded   its


applicability to intestate or testamentary succession to the property of


any Hindu, Muhammadan or Buddhist and it further provided that its


provisions shall not apply to any will made, or any intestacy occurring,


before January 1, 1866.


21.            By   the   Hindu   Wills   Act,   1870   (for   short,   `the   1870   Act'),


statutory   provisions   were   made   to   regulate   the   wills   of   Hindus,


Jainas, Sikhs and Buddhists in the Lower Provinces of Bengal and in


the   towns   of   Madras   and   Bombay.   Inter   alia,   Section   2   thereof


provided as follows :


          "S. 2.  The following portions of the Indian Succession Act,

          1865, namely,--


                sections   forty-six,   forty-eight,   forty-nine,   fifty,   fifty-

          one,   fifty-five   and   fifty-seven   to   seventy-seven   (both

          inclusive),


                sections  eighty-two,  eighty-three, eighty-five, eighty-

          eight to one hundred and three (both inclusive),





                                                                                         13


              sections   one   hundred   and   six   to   one   hundred   and

       seventy-seven (both inclusive),


              sections   one   hundred   and   seventy-nine   to   one

       hundred and eighty-nine (both inclusive),


              sections one hundred and ninety-one to one hundred

       and ninety-nine (both inclusive),


              so much of Parts XXX and XXXI as relates to grants

       of   probate   and   letters   of   administration   with   the   will

       annexed, and

      

              Parts   XXXIII   to   XL   (both   inclusive),   so   far   as   they

       relate   to   an   executor   and   an   administrator   with   the   will

       annexed,


              shall,   notwithstanding   anything   contained   in   section

       three hundred and thirty-one of the said Act, apply--


              (a)     to   all   wills   and   codicils   made   by   any   Hindu,

       Jaina,   Sikh   or   Buddhist,   on   or   after   the   first   day   of

       September   one   thousand   eight   hundred   and   seventy,

       within the said territories or the local limits of the ordinary

       original civil jurisdiction of the High Courts of Judicature at

       Madras and Bombay; and

      

              (b)     to   all   such   wills   and   codicils   made   outside

       those territories and limits, so far as relates to immoveable

       property situate within those territories or limits:"




22.          The 1925 Act which   came into force on September  30,


1925 has  eleven  parts.  Part VI has twenty three chapters.  Section


57 to Section 191 are covered by Part VI.   Section 57  provides thus:





       "S.57. Application of certain provisions of Part to a class of

       Wills   made   by   Hindus,   etc.  -  The   provisions   of   this   Part



                                                                                        14


        which   are   set   out   in   Schedule   III   shall,   subject   to   the

        restrictions and modifications specified therein, apply--


                  (a)    to   all   Wills   and   codicils   made   by   any   Hindu,

                         Buddhist, Sikh or Jaina on or after the first day

                         of September, 1870, within the territories which

                         at the said date were subject to the Lieutenant-

                         Governor of Bengal or within the local limits of

                         the ordinary original civil jurisdiction of the High

                         Courts   of   Judicature   at   Madras   and   Bombay;

                         and


                  (b)    to   all   such   Wills   and   codicils   made   outside

                         those   territories   and   limits   so   far   as   relates   to

                         immoveable   property   situate   within   those

                         territories or limits; and


               (c)       to   all  Wills   and   codicils   made   by   any   Hindu,

                         Buddhist, Sikh or Jaina on or after the first day

                         of January, 1927, to which those provisions are

                         not applied by clauses (a) and (b):]


               Provided that marriage shall not revoke any such Will

        or codicil."




Clauses (a) and (b) of Section 57 of the 1925 Act are pari materia to


clauses (a) and (b) of Section 2 of the 1870 Act.  Clause (c) is a new


provision.  


23.            As noticed above, present case is concerned with the will


executed in  1920.  The will  is  admittedly  a muffussil will  as it has


not   been     executed   within   the   local   limits   of   ordinary   original   civil


jurisdiction of the High Court of Judicature  at   Madras. Clause (a) of


Section 57 is apparently not attracted. The subject will also does not




                                                                                               15


relate   to   immoveable   properties   situate   within   the   local   limits   or


territories as set out in clause (a).   In this view of the matter, clause


(b)   is  also   not attracted.  Clause (c)  does  not  get   attracted,  as    it


applies to wills and codicils made on or after January 1, 1927.


24.           Since the subject will is not covered by any of the clauses


of   Section   57,   Part   VI   of   the   1925   Act   is   not   applicable   thereto.


Section 141 which falls in Chapter XIII of Part VI of the 1925 Act that


provides -   if a legacy is bequeathed to a person who is named an


executor of the will, he shall not take the legacy, unless he proves the


will or otherwise manifests an intention to act as executor -- is, thus,


not applicable to the subject will.    As a matter of fact, both  learned


senior counsel were  ad idem  that Section 141 of the 1925 Act, as it


is, has no application at all.


25.           We may also state that although the statutory provisions


concerning construction of wills from Sections 74 to 111 of the 1925


Act   do   not   apply     but   the   general   principles   incorporated   therein


would surely be relevant for construction of the subject will.


26.           It is well  settled that the court   must put itself   as far as


possible in the position of a person making a will in order to collect


the   testator's   intention   from   his   expressions;   because   upon   that




                                                                                      16


consideration   must   very  much   depend   the   effect   to   be   given   to   the


testator's   intention,   when   ascertained.       The   will   must   be   read   and


construed as a whole  to gather  the intention of the testator  and the


endeavor   of   the   court   must   be   to   give     effect   to   each   and   every


disposition.     In   ordinary   circumstances,   ordinary   words   must   bear


their   ordinary   construction   and   every   disposition   of   the   testator


contained   in     will   should   be   given   effect   to   as   far   as   possible


consistent with the testator's desire.


27.           The   above   are   the   principles   consistently   followed   and,


we   think,   ought   to   be   guided   in   determining   the   appeal   before   us.


What   then   was   the   intention   of   this   testator?   The   only   son   of   the


testator had predeceased him.   At the time of execution of   will,  he


had his wife, widowed sister, widowed  daughter-in-law, daughter and


minor granddaughter surviving;  the only other male member was his


son-in-law - Rami Reddy.    He intended to give  all his properties  to


the   granddaughter   but   he   was   aware   that   after   her   marriage,   she


would join her husband's family. The testator intended that his entire


estate remained in the family and did not go out of that and having


that   in   mind,   he   desired   that   his   daughter   adopted   a   son   with   the


consent of her husband and   his granddaughter married the adopted




                                                                                      17


son   of   his   daughter.     He,   therefore,   stated,   "I   intend   to   give   all   my


belongings,   moveable   and   immoveable   properties   to   the   said


Lakshumamma   and   the   adopted   son   of   my   daughter   Pitchamma".


He   expressed   in   unequivocal   terms,   "after   my   demise,   my


granddaughter   Lakshumamma   who   is   the  daughter   of   my  son   shall


have absolute rights in my entire properties".


28.             The testator  gave two very particular directions in the will


that   until   Lakshumamma   attained   the   age   of   majority   and   attained


power   to   manage   properties;   (one)     Rami   Reddy   shall   act     as   an


executor till then and (two) the executor shall   look after the female


members   in   the   family,   namely,   his   wife   Subbamma,   widowed


daughter-in-law,  daughter  Pitchamma,   widowed    sister  Chennamma


and   granddaughter   Lakshumamma.     Rami   Reddy,   thus,   was


obligated   to   carry   out   the   wishes   of   the   testator   by   managing   his


properties and looking after  the minor granddaughter Lakshumamma


till she attained majority and  also look after other female  members in


the family.


29.             The   clause,   however,   upon   which   the   appellants'   are


claiming  the rights in the properties of Rami Reddy is the clause that


reads "...if my daughter did not take any boy in adoption and if the




                                                                                           18


said boy will not accept to marry my granddaughter Lakshumamma, I


intend   to   give   my   aforesaid   properties,   1/3rd  share   to   my   daughter


Pitchamma and her husband, who is also my son-in-law Rami Reddy


together.   The   remaining   2/3rd  share   is   given   to   my   granddaughter


Lakshumamma".


30.              Mr. R. Sundaravaradan, senior counsel for the appellants


is   right   in   contending   that   the   above   clause   in   the   will   is   not   a


repugnant   condition   that   invalidates   the   will   but   is   a   defeasance


provision.


31.              In  Mt. Rameshwar Kuer & Anr. v.  Shiolal Upadhaya and


Ors.1,   Courtney-Terrell,   C.J.,   speaking   for   the   Bench,   explained   the


distinction   between   a   repugnant   provision   and   a   defeasance


provision thus :


          "The   distinction   between   a   repugnant   provision   and   a

          defeasance provision is sometimes subtle, but the general

          principle of law seems to be that where the intention of the

          donor  is   to  maintain  the  absolute   estate  conferred  on  the

          donee but he simply adds some restrictions in derogation

          of   the   incidents   of   such   absolute   ownership,   such

          restrictive   clauses   would   be   repugnant   to   the   absolute

          grant   and   therefore   void;   but   where   the   grant   of   an

          absolute   estate   is   expressly   or   impliedly   made   subject   to

          defeasance on the happening of a contingency and where

          the  effect  of  such defeasance  would  not  be a  violation  of

          any rule of law, the original estate is curtailed and the gift

          over must be taken to be valid and operative."



1 A.I.R. 1935 Patna 401



                                                                                        19


32.           The   distinction   between   a   repugnant   provision   and   a


defeasance   provision   explained   in  Mt.   Rameshwar   Kuer1  has   been


followed subsequently. In our view, Patna High Court  rightly explains


the   distinction   between   a   repugnant   provision   and   a   defeasance


provision.


33.           The question, however, upon which the fate of this appeal


depends  is : whether Rami Reddy became entitled to any legacy by


virtue of the defeasance clause under the will at all.


34.           The testator was clear in his mind that after his death, his


granddaughter   should   have   absolute   rights   in   his   entire   properties.


He   has   said   so   in   so   many   words   in   the   will.     However,     he


superadded   a   condition   that,   should     his   daughter   Pitchamma   and


son-in-law Rami Reddy not  adopt a son or  if his daughter and son-


in-law   adopted   a   son   but   that   boy   did   not   agree   to   marry   his


granddaughter, then 1/3rd share in his properties shall go over  to his


daughter Pitchamma and her husband Rami Reddy. The bequest  to


the extent of 1/3rd  share in the properties of the testator   in favour of


Pitchamma and her husband Rami Reddy jointly was   conditional on


happening of an uncertain event noted above. As a matter of fact and


in law,  immediately after the death of testator in 1920, what became




                                                                                 20


vested   in   Rami   Reddy   was   not   legacy   but   power   to   manage   the


properties   of   the   testator   as   an   executor;   the   legacy   vested   in


Lakshumamma, albeit, defeasibly   to the extent of 1/3rd  share.   The


only   event   on   which   the   legacy   to   Lakshumamma   to   the   extent   of


1/3rd  share   was   to   be   defeated   was   upon   happening   of   any   of   the


above events.  Mr. R. Sundaravaradan, learned senior counsel, thus,


is not right in contending that on the death of testator in 1920,   the


legacy   came   to   be   vested   in   Rami   Reddy   and   once   vesting   took


place, it could not have been divested.


35.            It has come in evidence that Pitchamma wanted to adopt


Godi     Venkat   Reddy   as     her    son,     but     her       husband   -   Rami


Reddy   -   did   not   agree   to   that   and   as   a   result   thereof   Godi   Venkat


Reddy could not be adopted by Pitchamma. On the issue of adoption


of Godi Venkat Reddy, a serious dispute ensued between Pitchamma


and her husband.   Rami Reddy left the family of the testator and the


village Chennavaran somewhere in 1924 and went to nearby village


Pappireddypally where he married second time. It may be that there


was   no   legal   impediment   for   Rami   Reddy   to   have   a   second   wife


before the Hindu Succession Act, 1956 or Bigamy Prevention Act of


1949 when no child was begotten from Pitchamma yet the fact of the




                                                                                        21


matter is that he abandoned the family of the testator.   There is no


merit in the submission of Mr. R. Sundaravaradan  that abandonment


was not voluntary and conscious.


36.           Rami   Reddy     neither   continued   as   a   guardian   of   minor


granddaughter   Lakshumamma   nor   looked     after   the   testator's   wife,


widowed  daughter-in-law, widowed  sister and daughter. The female


folk  were left in lurch with no male member to look after. He took no


care or interest in the affairs of the family or properties of the testator


and thereby failed to discharge his duties as executor.  


37.           In view of the predominant desire  that his granddaughter


should have his properties and that his properties did not go out of


the family, the testator  desired that his daughter adopted a son with


the consent of her husband and his granddaughter married that boy.


The conditional  legacy to Rami Reddy   (to the extent  of 1/3rd  share


jointly   with   Pitchamma)   was   not   intended   to   be   given   to   him   if   he


happened to  be  instrumental  in  defeating  the testator's wish   in    not


agreeing to the adoption of a son by his (testator's) daughter. Such


an intention might not have been declared by the testator in express


terms but necessary inference to that effect can safely be drawn by


reading the will as a whole.  In the  circumstances,  the  legacy to the




                                                                                      22


extent   of   1/3rd  share   cannot   be   held   to   have   ever   vested   in   Rami


Reddy jointly with Pitchamma as it was he who defeated the adoption


of son by the testator's daughter.   As a matter of fact by his conduct,


Rami Reddy rendered himself disentitled to any legacy.


38.           Not   only   that   Rami   Reddy   did   not   discharge   his


obligations   under   the   will   of     looking   after   the   family  and   managing


the   properties   as   an   executor   but   he   was   also   instrumental   in


frustrating   the   adoption   of   son   by   the   testator's   daughter.   Much


before   the   defeasance   clause   came   into   operation   when


Lakshumamma   married   Godi   Venkat   Reddy   who   could   not   be


adopted   as   son   by   Pitchamma,   Rami   Reddy   had   already   left   the


testator's family for good and abandoned the  legacy that could have


come to him under that  clause.


39.           The   plea,     of   the   appellants,   that   Rami   Reddy's   family


from the second wife and the testator's family was a composite family


and the properties were joint family properties of the plaintiffs and the


defendants, has not been accepted by the trial court as well as High


Court. We have no justifiable reason to take a different view on this


aspect.





                                                                                     23


40.            Importantly, Rami Reddy during his life time - although he


survived   for   about   19   years   after   the   death   of   the   testator   -   never


claimed any legacy under the subject will.


41.            All   in   all,   on   the   construction   of   the   will   and,   in   the


circumstances, it must be held, and we hold that  no legacy came to


be   vested   in   Rami   Reddy   and   he   did   not   become   entitled   to   any


interest  in the estate  of the testator  and, therefore,   the  plaintiffs  did


not   acquire   any  right,   title   or  interest   in   the   properties   of   Bijivemula


Subba Reddy.


42.            In view of the above, the challenge to the  findings of the


High   Court   on   the   plea   of   adverse   possession   set   up   by   the


defendants and the genuineness of the will executed by Pitchamma


in 1953 pale into significance and needs no consideration.


43.            In   fairness   to   Mr.   R.   Sundaravaradan,   learned   senior


counsel for the appellants, it must be stated that he cited the following


authorities:    (Katreddi)   Ramiah   and   another  v.  Kadiyala   Venkata


Subbamma   and   others  [A.I.R.   1926   Madras   434];  Balmakund  v.


Ramendranath   Ghosh  [A.I.R.   1927   Allahabad   497];  Ratansi   D.


Morarji  v.  Administrator-General   of   Madras  [A.I.R.   1928   Madras


1279];  Bhojraj v. Sita Ram and others [A.I.R. 1936 Privy Council 60];




                                                                                         24


Ketaki   Ranjan   Bhattacharyya   and   others            v.     Kali   Prasanna


Bhattacharyya and others [A.I.R. 1956 Tripura 18]; P. Lakshmi Reddy


v.  L.   Lakshmi   Reddy  [(1957)   SCR   195];  AL.   PR.   Ranganathan


Chettiar   and   another  v.  Al.   PR.   AL.   Periakaruppan   Chettiar   and


others  [A.I.R.   1957   S.C.   815];  Darshan   Singh   and   others  v.  Gujjar


Singh (Dead) By LRs. and others [(2002) 2 SCC 62]; Govindammal v.


R.   Perumal   Chettiar   and   others  [(2006)   11   SCC   600]   and


Govindaraja Pillai and others  v.  Mangalam Pillai and another  [A.I.R.


1933 Madras 80]. However, in view of our discussion above, we do


not think we need to deal with these authorities in detail.  


44.             In the result, appeal fails and is dismissed with no order


as to costs.





                                                          .........................J.

                                                              (Aftab Alam)





                                                           ....................... J.

                                                            (R.M. Lodha)


NEW DELHI,

APRIL 1, 2011.





                                                                               25

whether illegitimate children are entitled to a share in the coparcenary property or whether their share is limited only to the self- acquired property of their parents under Section 16(3) of the Hindu Marriage Act?

                                                  REPORTABLE



             IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION





           CIVIL APPEAL NO.           OF 2011

(Arising out of Special Leave Petition (C) No.12639/09)





Revanasiddappa & another                    ...Appellant(s)





                          - Versus -





Mallikarjun & others                       ...Respondent(s)





                        J U D G M E N T





GANGULY, J.





1.    Leave granted.





2.    The   first   defendant   had   two   wives-   the   third



plaintiff (the first wife) and the fourth defendant



(the   second   wife).   The   first   defendant   had   two



children   from   the   first   wife,   the   third   plaintiff,



namely,   the   first   and   second   plaintiffs;   and


                               1


another   two   children   from   his   second   wife,   the



fourth   defendant   namely,   the   second   and   third



defendant.





3.    The   plaintiffs   (first   wife   and   her   two



children)   had   filed   a   suit   for   partition   and



separate   possession   against   the   defendants   for



their   1/4th  share   each   with   respect   to   ancestral



property   which   had   been   given   to   the   first



defendant by way of grant. The plaintiffs contended



that   the   first   defendant   had   married   the   fourth



defendant   while   his   first   marriage   was   subsisting



and,   therefore,   the   children   born   in   the   said



second   marriage   would   not   be   entitled   to   any   share



in the ancestral property of the first defendant as



they were not coparceners.





4.    However,   the   defendants   contended   that   the



properties were not ancestral properties at all but



were   self-acquired   properties,   except   for   one



property   which   was   ancestral.   Further,   the   first




                               2


defendant   also   contended   that   it   was   the   fourth



defendant   who   was   his   legally   wedded   wife,   and   not



the   third   plaintiff   and   that   the   plaintiffs   had   no



right   to   claim   partition.   Further,   the   first



defendant   also   alleged   that   an   oral   partition   had



already taken place earlier.





5.    The   Trial   Court,   by   its   judgment   and   order



dated   28.7.2005,   held   that   the   first   defendant   had



not   been   able   to   prove   oral   partition   nor   that   he



had   divorced   the   third   plaintiff.   The   second



marriage   of   the   first   defendant   with   the   fourth



defendant   was   found   to   be   void,   as   it   had   been



conducted   while   his   first   marriage   was   still



legally subsisting. Thus, the Trial Court held that



the   third   plaintiff   was   the   legally   wedded   wife   of



the   first   defendant   and   thus   was   entitled   to   claim



partition.   Further,   the   properties   were   not   self-



acquired   but   ancestral   properties   and,   therefore,



the   plaintiffs   were   entitled   to   claim   partition   of



the   suit   properties.   The   plaintiffs   and   the   first




                                3


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



all the suit properties.





6.    Aggrieved,   the   defendants   filed   an   appeal



against   the   judgment   of   the   Trial   Court.   The   First



Appellate   Court,   vide   order   dated   23.11.2005,   re-



appreciated   the   entire   evidence   on   record   and



affirmed   the   findings   of   the   Trial   Court   that   the



suit   properties   were   ancestral   properties   and   that



the   third   plaintiff   was   the   legally   wedded   wife   of



the first defendant, whose marriage with the fourth



defendant   was   void   and   thus   children   from   such



marriage   were   illegitimate.   However,   the   Appellate



Court reversed the findings of the Trial Court that



illegitimate   children   had   no   right   to   a   share   in



the   coparcenary   property   by   relying   on   a   judgment



of   the   Division   Bench   of   the   Karnataka   High   Court



in  Smt.   Sarojamma   &   Ors.  v.  Smt.   Neelamma   &   Ors.,



[ILR 2005 Kar 3293].





                               4


7.    The   Appellate   Court   held   that   children   born



from a void marriage were to be treated at par with



coparceners and they were also entitled to the joint



family         properties                   of         the         first         defendant.



Accordingly,   the   Appellate   Court   held   that   the



plaintiffs,   along   with   the   first,   second   and   third



defendants   were   entitled   to   equal   share   of   1/6th



each in the ancestral properties.





8.    The   plaintiffs,   being   aggrieved   by   the   said



judgment of the Appellate Court, preferred a second



appeal   before   the   High   Court   of   Karnataka.   The



substantial   questions   of   law   before   the   High   Court



were:





      "a)  Whether   the   illegitimate   children   born   out



               of         void         marriage               are         regarded         as



               coparceners   by   virtue   of   the   amendment   to



               the Hindu Marriage Act, 1956?





                                                  5


       b)    At   a   partition   between   the   coparceners



             whether they are entitled to a share in the



             said properties?"





9.    The   High   Court   stated   that   the   said   questions



were no more  res integra  and had been considered in



the   judgment   of  Sri   Kenchegowda  v.  K.B.   Krishnappa



&   Ors.,   [ILR   2008   Kar   3453].   It   observed   that   both



the   lower   courts   had   concurrently   concluded   that



the   fourth   defendant   was   the   second   wife   of   the



first   defendant.   Therefore,   the   second   and   third



defendants   were   illegitimate   children   from   a   void



marriage.   Section   16(3)   of   the   Hindu   Marriage   Act



makes   it   clear   that   illegitimate   children   only   had



the   right   to   the   property   of   their   parents   and   no



one   else.   As   the   first   and   second   plaintiffs   were



the legitimate children of the first defendant they



constituted   a   coparcenary   and   were   entitled   to   the



suit  properties,  which  were  coparcenary  properties.



They   also   had   a   right   to   claim   partition   against



the other     coparcener and thus     their     suit for


                                6


partition          against         the         first         defendant             was



maintainable.            However,         the         second      and         third



defendants   were   not   entitled   to   a   share   of   the



coparcenary   property   by   birth   but   were   only



entitled   to   the   separate   property   of   their   father,



the   first   defendant.   The   High   Court   observed   that



upon   partition,   when   the   first   defendant   got   his



share   on   partition,   then   the   second   and   third



defendants   would   be   entitled   to   such   share   on   his



dying intestate, but during his lifetime they would



have no right to the said property. Hence, the High



Court   allowed   the   appeal   and   held   that   the   first



plaintiff, second plaintiff and the first defendant



would   be   entitled   to   1/3rd  share   each   in   the   suit



properties.   The   claim   of   the   third   plaintiff   and



the second, third and fourth defendants in the suit



property was rejected.





10.    As   a   result,   the   second   and   third   defendants



(present appellants) filed the present appeal.





                                     7


11.    The   question   which   crops   up   in   the   facts   of



this   case   is   whether   illegitimate   children   are



entitled   to   a   share   in   the   coparcenary   property   or



whether   their   share   is   limited   only   to   the   self-



acquired   property   of   their   parents   under   Section



16(3) of the Hindu Marriage Act?





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



reads as follows:





       "16.   Legitimacy   of   children   of   void   and

       voidable marriages-

       (1)    xxx

       (2)    xxx

       (3)   Nothing   contained   in   sub-section   (1)

       or   sub-section   (2)   shall   be   construed   as

       conferring   upon   any   child   of   a   marriage

       which   is   null   and   void   or   which   is

       annulled   by   a   decree   of   nullity   under

       section   12,   any   rights   in   or   to   the

       property   of   any   person,   other   than   the

       parents,   in   any   case   where,   but   for   the

       passing of this Act, such child would have

       been   incapable   of   possessing   or   acquiring

       any such rights by reason of his not being

       the legitimate child of his parents.





13.    Thus,   the   abovementioned   section   makes   it   very



clear   that   a   child   of   a   void   or   voidable   marriage




                                8


can   only   claim   rights   to   the   property   of   his



parents,   and   no   one   else.   However,   we   find   it



interesting   to   note   that   the   legislature   has



advisedly   used   the   word   "property"   and   has   not



qualified   it   with   either   self-acquired   property   or



ancestral   property.     It   has   been   kept   broad   and



general.





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



the   question   whether   child   of   a   void   or   voidable



marriage   is   entitled   to   self-acquired   property   or



ancestral   property   of   his   parents   was   discussed   in



a   catena   of   cases.   The   property   rights   of



illegitimate   children   to   their   father's   property



were   recognized   in   the   cases   of   Sudras   to   some



extent.





15.    In  Kamulammal (deceased) represented by Kattari



Nagaya   Kamarajendra   Ramasami   Pandiya   Naicker         v.



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



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




                              9


had   died   leaving   behind   an   illegitimate   son,   a



daughter,   his   wife   and   certain   collateral   agnates,



both   the   illegitimate   son   and   his   wife   would   be



entitled   to   an   equal   share   in   his   property.     The



illegitimate   son   would   be   entitled   to   one-half   of



what   he   would   be   entitled   had   he   been   a   legitimate



issue. An illegitimate child of a Sudra born from a



slave or a permanently kept concubine is entitled to



share   in   his   father's   property,   along   with   the



legitimate children.





16.    In     P.M.A.M.   Vellaiyappa   Chetty   &   Ors.         v.



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



that   the   illegitimate   son   of   a   Sudra   from   a



permanent   concubine   has   the   status   of   a   son   and   a



member of the family and share of inheritance given



to him is not merely in lieu of maintenance, but as



a   recognition   of   his   status   as   a   son;   that   where



the   father   had   left   no   separate   property   and   no



legitimate son, but was joint with his collaterals,



the   illegitimate   son   was   not   entitled   to   demand   a




                                10


partition   of   the   joint   family   property,   but   was



entitled   to   maintenance   out   of   that   property.   Sir



Dinshaw   Mulla,   speaking   for   the   Bench,   observed



that   though   such   illegitimate   son   was   a   member   of



the family, yet he had limited rights compared to a



son   born   in   a   wedlock,   and   he   had   no   right   by



birth.   During   the   lifetime   of   the   father,   he   could



take   only   such   share   as   his   father   may   give   him,



but   after   his   death   he   could   claim   his   father's



self-acquired   property   along   with   the   legitimate



sons.





17.    In     Raja         Jogendra          Bhupati         Hurri         Chundun



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



Indian   Appeals   128],   the   facts   were   that   the   Raja



was   a   Sudra   and   died   leaving   behind   a   legitimate



son,   an   illegitimate   son   and   a   legitimate   daughter



and   three   widows.   The   legitimate   son   had   died   and



the   issue   was   whether   the   illegitimate   son   could



succeed   to   the   property   of   the   Raja.   The   Privy





                                       11


Council held that the illegitimate son was entitled



to succeed to the Raja by virtue of survivorship.





18.    In  Gur   Narain   Das   &   Anr.  v.  Gur   Tahal   Das   &



Ors.,  [AIR 1952 SC 225], a Bench comprising Justice



Fazl Ali and Justice Bose agreed with the principle



laid down in the case of Vellaiyappa Chetty (supra)



and   supplemented   the   same   by   stating   certain   well-



settled   principles   to   the   effect   that   "firstly,



that the illegitimate son does not acquire by birth



any   interest   in   his   father's   estate   and   he   cannot



therefore   demand   partition   against   his   father



during   the   latter's   lifetime.     But   on   his   father's



death,         the     illegitimate         son         succeeds         as         a



coparcener   to   the   separate   estate   of   the   father



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



survivorship   and   is   entitled   to   enforce   partition



against   the   legitimate   son(s)   and   that   on   a



partition   between   a   legitimate   and   an   illegitimate



son,   the   illegitimate   son   takes   only   one-half   of



what   he   would   have   taken   if   he   was   a   legitimate




                                 12


son."   However,   the   Bench   was   referring   to   those



cases   where   the   illegitimate   son   was   of   a   Sudra



from a continuous concubine.







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



Ujayar   Singh   &   Ors.,  [AIR   1961   SC   1334],  the   main



question was whether an illegitimate son of a Sudra



vis-`-vis   his   self-acquired   property,   after   having



succeeded   to   half-share   of   his   putative   father's



estate,   would   be   entitled   to   succeed   to   the   other



half   share   got   by   the   widow.   The   Bench   referred   to



Chapter   1,   Section   12   of   the   Yajnavalkya   and   the



cases   of      Raja   Jogendra   Bhupati          (supra)   and



Vellaiyappa Chetty  (supra) and concluded that "once



it   is   established   that   for   the   purpose   of



succession   an   illegitimate   son   of   a   Sudra   has   the



status  of a  son and  that he  is entitled  to succeed



to   his   putative   father's   entire   self-acquired



property   in   the   absence   of   a   son,   widow,   daughter



or   daughter's   son   and   to   share   along   with   them,   we



cannot   see   any   escape   from   the   consequential   and




                                13


logical   position   that   he   shall   be   entitled   to



succeed   to   the   other   half   share   when   succession



opens after the widow's death."





20.    The amendment to Section 16 has been introduced



and   was   brought   about   with   the   obvious   purpose   of



removing the stigma of illegitimacy on children born



in   void   or   voidable   marriage   (hereinafter,   "such



children").





21.    However,   the   issues   relating   to   the   extent   of



property   rights   conferred   on   such   children   under



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



detail   in  the   case  of  Jinia  Keotin   &  Ors.  v.  Kumar



Sitaram   Manjhi   &   Ors.  [(2003)   1   SCC   730].  It   was



contended   that   by   virtue   of   Section   16(3)   of   the



Act,   which   entitled   such   children's   rights   to   the



property   of   their   parents,   such   property   rights



included   right   to   both   self-acquired   as   well   as



ancestral   property   of   the   parent.   This   Court,



repelling   such   contentions   held   that   "in   the   light




                                14


of   such   an   express   mandate   of   the   legislature



itself,   there   is   no   room   for   according   upon   such



children   who   but   for   Section   16   would   have   been



branded   as   illegitimate   any   further   rights   than



envisaged therein by resorting to any presumptive or



inferential process of reasoning, having recourse to



the mere object or purpose of enacting Section 16 of



the Act. Any attempt to do so would amount to doing



not   only   violence   to   the   provision   specifically



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



Act but also would attempt to court relegislating on



the   subject   under   the   guise   of   interpretation,



against   even   the   will   expressed   in   the   enactment



itself."   Thus,   the   submissions   of   the   appellants



were rejected.





22.    In   our   humble   opinion   this   Court   in          Jinia



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



of   the   Act.     The   same   issue   was   again   raised   in



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



612], wherein the court referred to the decision in




                                15


Jinia   Keotin  (supra)   and   held   that   illegitimate



children   would   only   be   entitled   to   a   share   of   the



self-acquired property of the parents and not to the



joint Hindu family property.





23.    Same   position   was   again   reiterated   in   a   recent



decision   of   this   court   in  Bharatha   Matha   &   Anr.  v.



R.   Vijaya   Renganathan   &   Ors.  [AIR   2010   SC   2685],



wherein this Court held that a child born in a void



or   voidable   marriage   was   not   entitled   to   claim



inheritance   in   ancestral   coparcenary   property   but



was   entitled   to   claim   only   share   in   self-acquired



properties.





24.    We   cannot   accept   the   aforesaid   interpretation



of   Section   16(3)   given   in  Jinia   Keotin  (supra),



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



reasons discussed hereunder:





25.    The legislature has used the word "property" in



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




                                 16


is   meant   to   be   ancestral   or   self-acquired.   Section



16   contains   an   express   mandate   that   such   children



are only entitled to the property of their parents,



and not of any other relation.





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



Act   we   are   of   the   view   that   the   amended   Section



postulates that such children would not be entitled



to   any   rights   in   the   property   of   any   person   who   is



not   his   parent   if   he   was   not   entitled   to   them,   by



virtue   of   his   illegitimacy,   before   the   passing   of



the   amendment.   However,   the   said   prohibition   does



not   apply   to   the   property   of   his   parents.   Clauses



(1)   and   (2)   of   Section   16   expressly   declare   that



such children shall be legitimate. If they have been



declared          legitimate,              then         they             cannot         be



discriminated   against   and   they   will   be   at   par   with



other   legitimate   children,   and   be   entitled   to   all



the   rights   in   the   property   of   their   parents,   both



self-acquired            and         ancestral.              The         prohibition



contained   in   Section   16(3)   will   apply   to   such




                                           17


children   with   respect   to   property   of  any   person



other than their parents.





27.    With   changing   social   norms   of   legitimacy   in



every society, including ours, what was illegitimate



in the past may be legitimate today. The concept of



legitimacy   stems   from   social   consensus,   in   the



shaping of which various social groups play a vital



role. Very often a dominant group loses its primacy



over   other   groups   in   view   of   ever   changing   socio-



economic scenario and the consequential vicissitudes



in   human   relationship.   Law   takes   its   own   time   to



articulate such social changes through a process of



amendment.   That   is   why   in   a   changing   society   law



cannot afford to remain static. If one looks at the



history of development of Hindu Law it will be clear



that   it   was   never   static   and   has   changed   from   time



to   time   to   meet   the   challenges   of   the   changing



social pattern in different time.





                                18


28.    The   amendment   to   Section   16   of   the   Hindu



Marriage   Act   was   introduced   by   Act   60   of   76.   This



amendment     virtually     substituted     the     previous



Section   16   of   the   Act   with   the   present   Section.



From   the   relevant   notes   appended   in   the   clause



relating to this amendment, it appears that the same



was         done         to         remove            difficulties              in         the



interpretation of Section 16.





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



Hindu Marriage Act was challenged before this Court



and         upholding               the         law,          this         Court           in



Parayankandiyal   Eravath   Kanapravan   Kalliani   Amma



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



76],   held   that   Hindu   Marriage   Act,   a   beneficial



legislation, has to be interpreted in a manner which



advances   the   object   of   the   legislation.   This   Court



also   recognized   that   the   said   Act   intends   to   bring



about   social   reforms   and   further   held   that



conferment   of   social   status   of   legitimacy   on





                                                19


innocent children is the obvious purpose of Section



16 (See para 68).





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



learned   judges   held   that   Section   16   was   previously



linked   with   Sections   11   and   12   in   view   of   the



unamended   language   of   Section   16.   But   after



amendment,   Section   16(1)   stands   de-linked   from



Section   11   and   Section   16(1)   which   confers



legitimacy   on   children   born   from   void   marriages



operates with full vigour even though provisions of



Section 11 nullify those marriages. Such legitimacy



has   been   conferred   on   the   children   whether   they



were/are born in void or voidable marriage before or



after the date of amendment.





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



learned Judges made the following observations:




       "In view of the legal fiction contained in

       Section  16,  the  illegitimate children,  for

       all         practical         purposes,         including

       succession   to   the   properties   of   their

       parents, have to be treated as legitimate.

       They   cannot,   however,   succeed   to   the


                                     20


       properties   of   any   other   relation   on   the

       basis         of         this         rule,         which         in         its

       operation, is limited to the  properties of

       the parents."





32.    It   has   been   held   in  Parayankandiyal  (supra)



that Hindu Marriage Act is a beneficent legislation



and   intends   to   bring   about   social   reforms.



Therefore,   the   interpretation   given   to   Section



16(3)   by   this   Court   in                       Jinia   Keotin                 (supra),



Neelamma  (supra)   and  Bharatha   Matha  (supra)   needs



to be reconsidered.







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



law   view   that   the   offsprings   of   marriage   which   is



void   and   voidable   are   illegitimate  `ipso-jure'  has



to   change   completely.   We   must   recognize   the   status



of   such   children   which   has   been   legislatively



declared             legitimate               and          simultaneously                   law



recognises   the   rights   of   such   children   in   the



property   of   their   parents.     This   is   a   law   to



advance the socially beneficial purpose of removing





                                              21


the stigma of illegitimacy on such children who are



as innocent as any other children.





34.    However,   one   thing   must   be   made   clear   that



benefit   given   under   the   amended   Section   16   is



available   only   in   cases   where   there   is   a   marriage



but   such   marriage   is   void   or   voidable   in   view   of



the provisions of the Act.





35.    In   our   view,   in   the   case   of   joint   family



property   such   children   will   be   entitled   only   to   a



share   in   their   parents'   property   but   they   cannot



claim   it   on   their   own   right.   Logically,   on   the



partition   of   an   ancestral   property,   the   property



falling   in   the   share   of   the   parents   of   such



children   is   regarded   as   their   self   acquired   and



absolute property. In view of the amendment, we see



no   reason   why   such   children   will   have   no   share   in



such property since such children are equated under



the   amended   law   with   legitimate   offspring   of   valid



marriage.   The   only   limitation   even   after   the




                                22


amendment   seems   to   be   that   during   the   life   time   of



their   parents   such   children   cannot   ask   for



partition   but   they   can   exercise   this   right   only



after the death of their parents.





36.    We         are         constrained                to      differ         from      the



interpretation   of   Section   16(3)   rendered   by   this



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



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



of   the   constitutional   values   enshrined   in   the



preamble   of   our   Constitution   which   focuses   on   the



concept   of   equality   of   status   and   opportunity   and



also   on   individual   dignity.   The   Court   has   to



remember   that   relationship   between   the   parents   may



not   be   sanctioned   by   law   but   the   birth   of   a   child



in such relationship has to be viewed independently



of the relationship of the parents. A child born in



such   relationship   is   innocent   and   is   entitled   to



all   the   rights   which   are   given   to   other   children



born   in   valid   marriage.   This   is   the   crux   of   the



amendment               in         Section          16(3).             However,         some




                                              23


limitation   on   the   property   rights   of   such   children



is still there in the sense their right is confined



to   the   property   of   their   parents.   Such   rights



cannot   be   further   restricted   in   view   of   the   pe-



existing common law view discussed above.



It is well known that this Court cannot interpret a



socially   beneficial   legislation   on   the   basis   as   if



the   words   therein   are   cast   in   stone.                            Such



legislation          must         be          given         a          purposive



interpretation   to   further   and   not   to   frustrate   the



eminently   desirable   social   purpose   of   removing   the



stigma   on   such   children.   In   doing   so,   the   Court



must   have   regard   to   the   equity   of   the   Statute   and



the   principles   voiced   under   Part   IV   of   the



Constitution,   namely,   the   Directive   Principles   of



State   Policy.     In   our   view   this   flows   from   the



mandate of Article 37 which provides that it is the



duty of the State to apply the principles enshrined



in Chapter IV in making laws.     It is no longer in



dispute     that     today     State   would   include   the



higher   judiciary   in   this   country.                          Considering




                                        24


Article 37 in the context of the duty of judiciary,



Justice              Mathew         in           Kesavananda         Bharati



Sripadagalvaru           v.     State   of   Kerala   and   another



[(1973) 4 SCC 225] held:





       "......I   can   see   no   incongruity   in   holding,

       when   Article   37   says   in   its   latter   part

       "it   shall   be   the   duty   of   the   State   to

       apply   these   principles   in   making   laws",

       that   judicial   process   is   `State   action'

       and that the judiciary is bound to apply

       the   Directive   Principles   in   making   its

       judgment."





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



that   Article   39   (f)   must   be   kept   in   mind   by   the



Court   while   interpreting   the   provision   of   Section



16(3)   of   Hindu   Marriage   Act.     Article   39(f)   of   the



Constitution runs as follows:





       "39. Certain   principles   of   policy   to   be

       followed by the State: The State shall, in

       particular,   direct   its   policy   towards

       securing-

       (a)    xxx

       (b)    xxx

       (c)    xxx

       (d)    xxx

       (e)    xxx

       (f)    that   children   are   given   opportunities

              and facilities to develop in a healthy


                                          25


            manner   and   in   conditions   of   freedom

            and   dignity   and         that   childhood   and

            youth         are          protected         against

            exploitation   and   against   moral   and

            material abandonment."





39.    Apart   from   Article   39(f),   Article   300A   also



comes   into   play   while   interpreting   the   concept   of



property rights. Article 300A is as follows:





            "300A.  Persons   not   to   be   deprived   of

            property   save   by   authority   of   law:  No

            person   shall   be   deprived   of   his

            property   save   by   authority   of   law."





40.    Right   to   property   is   no   longer   fundamental   but



it   is   a   Constitutional   right   and   Article   300A



contains a guarantee against deprivation of property



right save by authority of law.





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



does   not   impose   any   restriction   on   the   property



right   of   such   children   except   limiting   it   to   the



property of their parents. Therefore, such children





                                      26


will   have   a   right   to   whatever   becomes   the   property



of their parents whether self acquired or ancestral.





42.    For   the   reasons   discussed   above,   we   are



constrained   to   take   a   view   different   from   the   one



taken   by   this   Court   in         Jinia   Keotin     (supra),



Neelamma     (supra)   and     Bharatha   Matha      (supra)   on



Section 16(3) of the Act.





43.    We   are,   therefore,   of   the   opinion   that   the



matter should be reconsidered by a larger Bench and



for   that   purpose   the   records   of   the   case   be   placed



before   the   Hon'ble   the   Chief   Justice   of   India   for



constitution of a larger Bench.





                                 .......................J.

                                 (G.S. SINGHVI)





                                 .......................J.

New Delhi                        (ASOK KUMAR GANGULY)

March 31, 2011




                                27