Appeal No 316 of 1959
Appeal by special leave from the judgment and decree dated August 22 1959 of the Madras High Court in Appeal No 282 of 1952
GS Pathak B Dutta TR Ramchandra JB Dadachanji OC Mathur and Ravinder Narain for the appellants
HN Sanyal Solicitor General of India K Jayaram and R Ganapathy Iyer for respondent No 1 N Panchapagesa Iyer MP Swami and R Thiagarajan for respondent No 2
December 11 1963
The Judgment of the Court was delivered by DAS GUPTA J
Thirteen month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father VR Sadagopa Naidu the first defendant in the suit formed with the other nine persons impleaded as defendents 2 to 10
His case is that Padmavathi and Sadagopa were validly married on June 24 1948 and of that marriage he was born
The main contention of the contesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa s son
On both these points the Trial Court found the plaintiffs  case proved and rejected the defence pleas
At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa 913 did take place that was not a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra
The Trial Court was of opinion that Padmavathi was a Brahmin and as admittedly Sadagopa was a Shudra the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act 1949
It held however that the position had been entirely changed by section 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and not to the caste to which Sadagopa belonged the marriage is valid under the existing law
The validity of the Act itself appears to have been challenged before the Trial Court but this was rejected
In the result the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 18th share of the property set out in the plaint
Some other directions were also given in the decree with which however we are not concerned
On appeal by the defendants the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathasalam was the issue of that marriage being born of Padmavathi to Sadagopa
The High Court was however of opinion that Padmavathi was a Shudra the same as Sadagopa
Assuming however for argument s sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act 1949 and so the plaintiff would have all the rights of legitimate son vis a vis the coparcenary to which his father belonged
The validity of the Act was unsuccessfully challenged
Accordingly the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal
Against this decision of the High Court the present appeal has been filed by the defendants with special leave
In support of the appeal Mr Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa 914 and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage
Learned counsel wanted to
say that the findings of the High Court on these points were vitiated by misreading of important items of evidence
He could not however point out any such misreading nor any other error to justify our re assessment of the evidence Having failed in this attempt Mr Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa inspite of the provisions of the Hindu Marriages Validity Act 1949
According to the learned counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act
The relevant provisions of the Act is in section 3 and is in these words Notwithstanding anything contained in any other law for the time being in force or in any text or interpretation of Hindu law or in any custom or usage no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions castes sub castes or sects
 For his proposition the learned counsel could not cite any authority and that is natural because the contention raised is entirely misconceived and can be characterised as extravagant
He tried to persuade us however that a proper construction of the words used in the sectionjustifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected
He conceded that in the case of every marriage celebrated after the date of the Act the result of the marriage being valid would be that the children born of the marriage would be legitimate but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegiti 915 mate then
The illegitimate children  he argues were not made legitimate by this Act
For that purpose an express provision was necessary according to the learned counsel
In support of his arguments he has drawn our attention to the wordings of section 1 of the Hindu Widows  Re Marriage Act 1856 which is in these words No marriage contracted between Hindus shall be invalid and the issue of no such marriage shall be illegitimate by reason of the women having been previously married or betrothed to another person who was dead at the time of such marriage any custom and any inter pretation of Hindu law to the contrary notwithstanding
 The absence of any phrase similar to the issue of no such marriage shall be illegitimate in the Hindu Marriages Validity Act 1949 is claimed by the learned counsel to support his contention
We cannot agree
In our opinion the use of the words the issue of no such marriage shall be illegitimate was not really necessary in section 1 of the Hindu Widows  Re Marriage Act and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate
These words were put in the section
 by the legislature in 1856 as a matter of abundant caution
The absence of such words in the Hindu Marriages Validity Act 1949 is of no consequence
If the Act had not retrospectively validated marriages celebrated before the date of the Act the children of those marriages could not have claimed to be legitimate
The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different castes sub castes and sects
It is idle to contend that the object of the legislature was only to regu larise the status of the husband and the wife
That  certainly was part of the object
But equally important or perhaps more important object was that the children of the marriages would become legitimate
916 We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra the position in law was as found by the courts below viz it was a valid Hindu marriage and Bhakthavathasalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters
No other point was urged in appeal
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
The minor respondent No I brought a suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father Sadagopa Naidu the first defendant in the suit formed with the other nine persons impleaded as defendants 2 to 10
His case was that Padmavathi and Sada Gopa were validly married on June 24 1948 and of that marriage he was born
The case of the defendant was that the impugned marriage was not a valid marriage as Padmavathi was a Brahmin girl and Sada Gopa a Shudra
On these facts the Trial Court passed a preliminary decree for partition in favour of the respondent No 1
The Trial Court was of opinion that the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act 1949
It held however that the position had been entirely changed by section 3 of the Hindu Marriages Validity Act 1949 and that the marriage was validated by the Act of 1949
On appeal by the defendants the High Court affirmed the judgment and decree passed by the trial court
Hence this appeal
Held i The Hindu Marriages Validity Act 1949 was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different 912 castes sub castes and sects
It is idle to say that the object of the legislature was only to regularise the status of the Husband and the Wife
That certainly was part of the object
But equally important or perhaps more important object was that the children of the marriages would become legitimate
On the facts of this case it was held that the impugned marriage was a valid Hindu marriage and the respondent No 1 a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters