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TMI Blog2011 (3) TMI 1763X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legitimate 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itimate children. 16. In P.M.A.M. Vellaiyappa Chetty and Ors. v. Natarajan and 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 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 and Anr. 1889-90 Indian Appeals 128, the facts were that the Raja was a Sudra and died leaving behind a leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Ors. v. Kumar Sitaram Manjhi and 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 socioeconomic 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) xxx (e) xxx (f) that children are given opportunities and facilities to develop in a healthy 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 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 (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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