1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 405 OF 2007 Smt. Savita d/o Uttam Jadhav, aged about ) 33 years, occupation Household, residing at ) Ward No.1 Shrirampur Dist. Nasik. ).. Appellant Orig. Plff. Vesus 1. Smt. Kusum Uttam Jadhav, aged 58 years ) 2. Smt. Sunita Uttam Jadha, aged 30 years ) 3. Shri SunilUttam Jadhav, aged 28 years ) 4. Smt. Shalini Uttam Jadhav , aged 25 years ) Respondent Nos. 1 to 4 are residents ) of Adgaon Taluka and District Nashik. ) 5. Smt. Anusaya Pandharinath Sonawane, aged) about 53 years, resdig at Hivre Taluka ) Niphad District Nashik. ) 6. Smt. Vimal Shridhar Bhoye, aged about ) 58 years, occupation ) resding at Chumber Chawl Siddharth ) Colony No.10/2 Mumbai 400 071 ) 7. Smt. Babanbai Nakul Tejale, aged about ) 53 years, occupatioon ) residing at Wadala Naka Tejale Chowk ) Nashik District Nashik. ).. Respondents (Org.defts.) Shri Shriram S. Kulkarni, Advocate fr the appellants. Shri P.S.Dani, Advocate, or the respondent Nos. 1 to 5 & 7. CORAM: J.H.BHATIA,J. DATE : 24th September, 2009. 2 JUDGMENT 1. The present appellant filed Regular Civil Suit No.471 of 1999 for partition and separate possession of the suit property. The suit came to be dismissed on the ground that she is the illegitimate daughter of deceased Uttam Dattatraya Jadhav and that the suit property was ancestral property of the joint family. She preferred Regular Civil Appeal No.517 of 2001. That appeal was also dismissed on the same ground. 2. Following substantial questions of law are involved in the present appeal. (1)Whether the plaintiff/appellant is entitled to get a share in the property of her father in view of the provisions of Section 16(3) of the Hindu Marriage Act read with Section 8 of the Hindu Succession Act. (2) Whether the plaintiff/appellant, an illegitimate daughter, would be entitled to inherit the property of parents of her father ? 3. Heard the learned Counsel for the parties. Perused the copies of the 3 pleadings, evidence as well as the impugned Judgments of both the Courts below. 4. The facts which are no more in dispute may be stated thus: The suit property was the the ancestral joint family property in the hands of father of Uttam. Defendant No.1 is the first wife of Uttam. Defendant Nos. 2 and 4 are their daughters and defendant No.3 is their son. Uttam had entered into second marriage with mother of the plaintiff in 1968. As that marriage took place during the subsistence of the first marriage of Uttam and as defendant No.1 the first wife of Uttam was alive, the marriage of plaintiff’s mother with Uttam was void under Section 11 read with section 5(1)(a) of the Hindu Marriage Act. Uttam died on 15th July, 1983. At that time, his father, mother and 3 sisters besides the defendants and the plaintiff were alive. His father died on 11.11.1985 and his mother Salubai died on 2.12.1994. 5. Section 16 of Hindu Marriage Act reads as follows :- “16. Legitimacy of children of void and voidable marriages -(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate whether such child is born before or after the commencement of the Marriage Laws 4 (Amendment) Act,1976 (68 of 1976), ad whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights n 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 o his not being the legitimate child of his parents.” In view of Section 16(1) of the Hindu Marriage Act, notwithstanding the marriage is null and void under Sec.11, any child of such marriage, who would have been legitimate if marriage had been valid, shall be legitimate. Sub-section (3) provides that nothing contained in sub-sections (1) and (2) shall confer upon any such child of a marriage which is null and void any right in or to the property of any person other than the parents. It means even the child born from a void marriage is granted limited legitimacy for the purpose of succession to the 5 property of his or her parents. Admittedly, in the present case, the suit property was the ancestral joint family property. However, as Uttam died as a member of the joint family and co-parcener of the coparcenary in 1983, leaving behind female relatives specified in Class I of Schedule, his interest in the co-parcenary property shall devolve as per the provisions of Section 8 of the Hindu Succession Act and not by survivorship. Therefore, on death of Uttam, there has to be a notional partition. In that notional partition, Uttam, his father and mother would be entitled to 1/3rd share each. 1/3rd share of Uttam would go to his legal heirs as per the Schedule read with Section 8 of the Hindu Succession Act. Mother, wife and children would fall in Class I of the heirs. Father would not be entitled to succeed him because father falls in Class II. The plaintiff, being an illegitimate daughter, by virtue of the provisions of section 16(3) of the Hindu Marriage Act would be entitled to inherit the property of her father. Even though the suit property was originally ancestral and joint family property, on notional partition, the share of Uttam would become his individual property and that property would be devolved upon his legal heirs as per the provisions of Section 8 read with the Schedule. Therefore, his mother, wife and 2 daughters and son from legally wedded wife and the plaintiff, who was the illegitimate daughter would be entitled to inherit the property. Thus, there were in all six relatives of Uttam who could succeed him as heirs of Class I. Therefore, each of them 6 would get 1/6th share in his 1/3rd share in the property. As such, the plaintiff would be entitled to 1/6th of 1/3rd i.e. 1/18th share in the total property. This aspect has been ignored by the Courts below. 6. The learned Counsel for the plaintiff/appellant contends that the plaintiff would also be entitled to inherit from the share of the grandparents i.e. father and mother of her father Uttam as she is related to them. The word “related” is defined in section 3(1)(j) of the Hindu Succession Act. Thus: “3. Definitions and interpretation – (1) In this Act, unless the context otherwise requires - (j) “related” means related by legitimate kinship: Provided that illegitimate children shall be deemed to be related to their mothers and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly.” On reading this definition, it is clear that “related” means related by legitimate kinship and under the proviso to this definition, even illegitimate children are deemed to be related only to their mother and to one another and then to their own legitimate descendants. They cannot be deemed to be related to the parents of their own parents. Under Section 15(1) of the Hindu Succession Act read with 7 Section 3(1)(j), illegitimate children can inherit the property of their mother and in view of the provisions of Section 16(3) of the Hindu Marriage Act read with Section 8 and Schedule of the Hindu Succession Act, an illegitimate child can also inherit the property of father, but there is no provision under which illegitimate child can inherit the property of the parents’ parents. Therefore, there is no substance in this contention of the learned Counsel for the plaintiff/appellant. 7. In view of the legal position and the facts noted above, it is clear that both the Courts committed error in refusing a share to the plaintiff/appellant who is entitled to 1/18th share, being 1/6th of the 1/3rd share of Uttam in the joint family property 8. For the aforesaid reasons, the Appeal is allowed. The impugned judgments are hereby set aside. The suit is decreed and it is hereby declared that the plaintiff shall have 1/18th share in the suit property as mentioned in para 1 of the plaint and she shall be put in separate possession her sharere in the suit property after partition. In respect of the agricultural lands, the decree shall be referred to the Collector for effecting partition either himself or through any gazetted subordinate. The Executing Court shall appoint a Commissioner for 8 effecting partition for house property. 9. The plaintiff shall also be entitled to mesne profits from the date of suit till she is actually put in separate possession after partition. For the purpose of determining mesne profits, enquiry shall be held under Order XX Rule 12 of C.P.C. The defendants shall bear their own costs and shall also pay the costs to the appellant/plaintiff throughout. Preliminary decree be prepared accordingly. 10. As the Second Appeal is finally disposed of, C.A. No.1856 of 2004 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)