1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 567 OF 2007 IN REG. CIVIL APPEAL NO. 222 OF 1992 IN REG. CIVIL SUIT NO. 215 OF 1978 1. Shri Shahaji Kisan Asme ) Age 41 years ) 2. Smt. Hirabai Kisan Asme, ) Age 36 years, ) 3. Shri Netaji Kisan Asme ) Age 34 years, ) 4. Smt. Vimal Kisan Asme, ) Age 50 years, Occupatin of 1 to 4 ) 5. Shri Yashoda Hanmant Kadam ) Age 43 years, Occu: agricultgurist, ) All R/o. Ganeshwadi, Taluka Kharav, ) Dist. Satara. ).. Appellants (Nos.1 to 4 orig. Plffs & No.5 orig. deft.No.3). Versus 1. Shri Sitaram Kondi Asme ) since deceased by his heirs ) Appellant Nos. 1 to 4 and ) Respondent No.3. ) 2. Shri ramchandra Gangaram pawar, ) Age 40 years, Occu: Agriculure ) 2 3. Smt. Kalavati @ Parubai Shankar ) Kshirsagar, ) Age 65 years, Occu: Agriculture. ) 4. Smt. Khashibai Parshuraom Bhosale ) Age 55 years, Occu: Agricultural, ) (Deceased through her heirs) ) 4a. Ashok Parashuram Bhosale ) Age 55 years, Occu: Driver. ) 4b. Subhash Parashuram Bhosale ) Age 45 years, Occu: Business. ) Permanent Address: Hingnul, ) Tal. Karad, Dist. Satara. ) Both at present R/o. Tadakeshwar ) Bhayyachi Chawl, Room Nos.2 & 3, ) Gufa Road, Gufa Takadi, Ramwadi, ) Jogeshwari, Bombay – 60. ) 5. Smt. Kusum Nana Jagadale, ) Age 50 years, Occu: Agricultural. ) 6. Smt. Bhagirathi Kisan Asme, ) Age 60 years, Occu: Agriculture, ) Nos. 2, 3 6 residents of Ganeshwadi, ) Taluka Kharva, Dist. Satara. ) No. 4 at Chikhali,Taluka Karad, ) Dist. Satara. No. 5 at Hiingnule, ) Taluka Karad, Dist. Satara. ) No.7 at Revalkarwadi, Taluka ) Khatav, Dist. Satara. )..Respondents Mr. G.S.Godbole, Advocate, a/w Ms. Manjiri Parasnis, advocate, for the appellants.. Mr.Dilip Bodake, Advocate, for respondent nos. 2, 3, 4b & 5. CORAM: J.H.BHATIA,J. DATE : 24th September, 2009. 3 JUDGMENT 1. Second Appeal is filed by the original plaintiffs being aggrieved by refusal of shares to them in the property of their grandparents. 2. Before dealing with the question of law raised in this Appeal, it will be useful to state the facts in brief. Defendant No.1 – Sitaram had two sons, namely, Kisan and defendant No.2 – Ramchandra. Defendant Nos. 4, 5 and 6 are the daughters of Sitaram. His son Kisan died in 1968, leaving behind his first wife Bhagirathibai, who is defendant No.7, second wife Vimal, who is plaintiff No.4 and three sons, who are plaintiff Nos. 1 to 3 and a daughter, who is defendant No.3. They are children from his second wife Vimal. The plaintiffs i.e. the sons and the second wife of Kisan, filed Regular Civil Suit No.215 of 1978 seeking partition and separate possession of the joint family property. According to them, defendant no.2 Ramchandra was given in adoption to one Gangaram Pawar and, therefore, he did not have any right, title or interest in the suit properties which are ancestral and join family properties in the hands of Sitaram and other members of the joint family. The defendant No.2, who is the main contesting defendant, denied that he was given in adoption. According to 4 him, said Gangaram Pawar is his maternal grandfather and therefore he could not have been lawfully given in adoption to said Gangaram Pawar. He also contended that some of the suit properties are his self-acquired property and his father Sitaram had bequeathed his share in the remaining property to him under a Will. He also contended that the plaintiff No.4 was not lawfully wedded wife of Kisan and the plaintiff Nos. 1 to 3 and defendant No.3 are not the legitimate children of Kisan. Therefore, they cannot claim any share in the ancestral property of the joint family. 3. Several issues were framed by the trial Court. After hearing the evidence led by the parties, the trial Court came to conclusion that plaintiff No.4 Vimal was not lawfully wedded wife of Kishan because his first marriage with defendant no.7 Bhagirathibai was subsisting when he married plaintiff No.4. As a result of this, plaintiff No.4 could not claim any share in the property and the plaintiff Nos. 1 to 3 and defendant No.3 being the illegitimate children of deceased Sitaram and plaintiff No.4 Vimal, they can claim share only in the share of deceased Kisan, but not in the joint family property. The trial Court also held that the plaintiffs had failed to prove that defendant No.2 was given in adoption. The trial Court held that the defendant no.1 had bequeathed his estate in favour of defendant No.2 by Will. The claim of defendant No.2 that some properties 5 were self-acquired was also accepted. The trial Court came to conclusion that in the notional partition of the joint family property, on death of Kisan in 1968, his 1/4th share would be inherited by succession by the plaintiff Nos. 1 to 3 and defendant Nos. 3 and 7, his mother Draupadabai. Accordingly, the trial Court granted 1/24th share in the property to each of the plaintiff Nos. 1 to 3 and defendant No.3.Draupadabai, wife of defendant No.1 and mother of deceased Kisan and defendant No.2 Ramchandra, died in 1976. However, the trial Court held that the plaintiff Nos. 1 to 3 and defendant No.3, being it legitimate children of Kisan, cannot get any share in the estate of their grandmother Draupadabai on her death. 4. Being not satisfied with the judgment and decree passed by the trial Court, the plaintiffs preferred Regular Civil Appeal No.222 of 1992. Pending the appeal, defendant No.1 also died. The first appellate Court upheld the findings of the trial Court to the effect that defendant No.4 is not legally wedded wife of deceased Kisan and that the defendant No.2 was not given in adoption . However, the appellate Court held that none of the properties was self-acquired property of defendant No.2 and that the defendant No.1 had not bequeathed his share in the property to defendant No.2. Thus, whole of the property was treated as the joint family property. However, it was held that the plaintiff No.4 is not 6 even entitled to any share in the property and similarly the plaintiff Nos. 1 to 3 and defendant no.3 are held entitled only to share in the share of their father Kisan, but not in the entire ancestral property. Therefore, the plaintiffs have filed the Second Appeal. It may be noted that defendant No.2 has not filed any appeal or cross objection. 5. Even though several grounds were raised in the Appeal Memo and some additional grounds were also added later on, the learned Counsel for the plaintiffs/appellants pressed only the following two grounds in this Appeal :- “1. Whether the Courts below have completely overlooked the provisions of Section 15(1)(a) of the Hindu Succession Act, 1956 and have failed to note that the Appellants, being the children of deceased Kisan Sitaram Asme, would also be entitled to succeed to the estate of Drowpadabai, mother of Kisan, after her death in the year 1976 and whether the Courts below have failed to allot the share to the Appellants in the property of the said Drowpadabai ? 2. Whether the Courts below have failed to note that in view of the settled position of law that the word “son” used in Section 15(1) (a) of the Hindu Succession Act, 1956 is wide enough to include even the illegitimate son of a Hindu female dying intestate and would also include the children of predeceased son, whether the Appellants 7 could have been excluded from getting the share in case of intestate succession in respect of property of deceased Drowpadabai ? 6. In view of death of defendant No. 1 pending the First Appeal and the grounds raised in the Appeal Memo, following questions of law arise in the present matter :- (1) Whether the plaintiffs/appellants Nos. 1 to 3 & defendant No. 3, the children of Kisan would be entitled to succeed to the estate of Draupadabai, mother of Kisan in view of the provisions of Section 15(1)(a) of the Hindu Succession Act?. (2) Whether the plaintiff Nos. 1 to 3 and defendant no.3 would be entitled to succeed to the estate of defendant No.1 Sitaram as his grandchildren.? 7. Heard the learned Counsel for the parties. Mr. Godbole, the learned Counsel for the plaintiffs/appellants vehemently contended that in view of the difference in the language used in Section 8 read with Schedule and in Section 15(1)(a) and 15(1)(b) of the Hindu Succession Act, it must be held that as far as the property of a female is concerned, it can be succeeded by 8 her son and daughter or the children of son and daughter irrespective of whether the children of such son or daughter one legitimate or illegitimate and that they should be treated as related to the deceased. On the other hand, the learned Counsel for the respondent/defendant No.2 vehemently contended that the provisions of section 15 and the definition of word “related” in Section 3(1)(j) will have to be read with Section 16 of the Hindu Marriage Act whereby the legislature granted legitimacy to the children of void and voidable marriages for a limited purpose of succeeding to the property of parents only. 8. At this stage, there is no dispute that defendant No.7 Bhagirathibai was the first wife of deceased Kisan and the plaintiffs had failed to prove that she was divorced before the marriage of plaintiff No.4 Vimal with Kisan. She was married to Kisan after the Hindu Marriage Act came into force and at the time of her marriage, the marriage of Kisan and defendant No.7 was subsisting and it continued to subsist till death of Kisan. 9. Section 5(i) of the Hindu Marriage Act provides that a marriage may solemnize between any two Hindus if neither party had a spouse living at the time of the marriage. Section 11 provides that any marriage solemnized after 9 commencement of this Act shall be null and void and may, on a petition presented by by either party thereto be so declared by a decree of nullity if it contravenes the conditions specified in clauses (i) ,(iv) and (v) of Section 5. Therefore, in view of this, the marriage of deceased Kisan and plaintiff No.4 Vimal was void because the first marriage of Kisan was subsisting and his first wife was living at the time of the second marriage. 10. Section 6 of the Hindu Succession Act makes provision for devolution of interest in the coparcenary property. Section 8 of the Hindu Succession Act provides general rules of succession in the case of a male dying intestate. Section 15 provides general rules of succession in case of a female Hindu who dies intestate. Section 3(1)(j) of Hindu Succession Act defines the word “related” and it reads as follows :- “3(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.” 10 From this, it will be clear that whenever a person is said to be related to another for the purpose of succession, the relationship must be legitimate and therefore the illegitimate children shall not be treated as related to any person and cannot succeed such person. However, the proviso to clause (j) makes an exception and thereby the illegitimate children shall be deemed to be related to their mother and to one another and the legitimate descendants of such illegitimate children shall be deemed to be related to them and to one another. Therefore, in view of this definition, the plaintiff No.1 to 3 and defendant No.3, who are the illegitimate children of deceased Kishan and plaintiff no.4 Vimal cannot claim any legitimate kinship with anybody except their mother and among themselves. Therefore, they shall be deemed to be related to their mother Vimal and they also shall be deemed to be related to each other inter-se. 11. Section 15(1) reads as follows :- “15. General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, - (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; 11 (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.” On careful perusal of Section 15(1)(a) with definition of word “related” in Section 3(1)(j), it will become clear that the sons and daughters, whether legitimate or illegitimate, of a female Hindu the children of such pre-deceased son or daughter are entitled to succeed her. Thus, iIn view of the provisions of Section 3(1)(j) read with Section 15(1)(a) illegitimate children may inherit the property of their mother and because they are deemed to be related to each other they may succeed to each other also. However, there is no other provision in the Hindu Succession Act under which illegitimate children can succeed to the property of any other person except their mother or themselves. 12. Hindu Marriage Act was enacted in 1955. Section 16 of the Hindu Marriage Act, before its amendment in 1976 provided that only those children, who were born before marriage of their parents was declared to be void, would be deemed to be legitimate for a limited purpose of inheriting the property of their parents only. By making an amendment in section 16 by Marriage Laws (Amendment) Act, 1976, the difference was tried to be done away with between the children born before the marriage was declared null and void and the children who were born after. Section 16 reads as follows :- 12 “16. Legitimacy of children of void and voidable marriages -(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act,1976 (68 of 1976), 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 sub-section (1) of section 16, a child of a marriage which is null and void, who would have been legitimate if the marriage had been valid, shall be 13 deemed to be a legitimate child. However, sub-section (3) provides that such children of null and void marriage or the marriage which is annulled by a decree of nullity under Section 12 shall not be entitled to rights in or to the property of any person other than the parents. Section 16(3) makes an important provision in respect of succession to the property of parents and, therefore, it will have to be read along with the provisions of Hindu Succession Act. In view of the provisions of Section 16 of the Hindu Marriage Act, a child of a null and void marriage is also entitled to succession to the estate of its father under Section 8 and of mother under Section 15(1)(a) of the Hindu Succession Act. However, the word “parent” connotes father or mother and the meaning of word `parent’ cannot be extended beyond that. `Parent’ cannot mean parents of parent or the grand-parents. 13. Mr. Godbole tried to contend that in the schedule read with Section 8 of the Hindu Succession Act words used are son, daughter, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter,daughter of a pre-deceased daughter, Son of a pre-deceased son of a pre-deceased son and daughter of a pre-deceased son of a pre-deceased son and like that, which means only the particular relatives will be entitled to inherit the property of a male Hindu under section 8. However, as per the language of Section 15(1)(a), the 14 property of a female Hindu dying intestate shall devolve upon the sons and daughter (including the children of any predeceased son or daughter) and the husband. The learned Counsel contends that on death of Draupadabai, her estate would devolve upon her sons, including the children of the pre-deceased son. He contends that the plaintiffs Nos. 1 to 3 and the defendant No.3 are the children of the deceased Kisan and therefore they are is entitled to succeed to the property of Draupadabai under clause (a). In my considered opinion, the words used in the Schedule read with Section 8 and the words used in clause (a) of Section 15(1) do not support the claim of the plaintiffs. Under Section 8 property of a male devolves upon, firstly the heirs being the relatives specified in Class I of the Schedule and then secondly, if there is no Class I heir, then upon the heirs being relatives specified in Class II of the Schedule. In Class I, certain specified relatives are provided who could succeed to the property of a male Hindu prior to the Amendment of 2005, It will be interesting to note that prior to the Amendment of 2005. Class I included the following relatives: “Class I Son; daughter, widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceaed son; son of a pre- deceased son of a pre-deceased son; daughter of a pre-deceased son 15 of a pre-deceased son; widow of a pre-deceased son of a pre- deceased son; [Note: son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son added to Class I by Marriage Laws (Amendment) Act, 2005]. It is interesting to note that in this, son , daughter, son of a pre-deceased son , daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son would be entitled to be the legal heirs. It shows that the son and daughter of a pre-deceased son and daughter would be entitled. While son and daughter of a predeceased son of a pre- deceased son would also be entitled to succeed, son or daughter of a pre- deceased daughter of a pre-deceased daughter or a daughter of a pre-deceased son of a pre-deceased daughter or a daughter of a pre-deceased daughter of a pre- deceased son would not be entitled as heirs of Class I. They were in Class II. However, they were included in Class I after the amendment of 2005. For the moment, we are not concerned with the amended provisions. Thus, prior to 2005 Amendment, the legislature had made a difference between son and daughter of a pre-deceased son of a pre-deceased son on one hand and son and daughter of a 16 pre-deceased daughter of a pre-deceased daughter on the other. Thus, while son and daughter of a predeceased son of a pre-deceased son were heir in the Class I, the son and daughter of predeceased daughter of pre-deceased daughter would fall in entry III of Class II. In view of this, in the Schedule, the legislature did not use the word “children” which is neutral in respect of gender. In section 15(1)(a), the legislature provided that property of a female Hindu dying intestate shall devolve upon the sons and daughters including the children of any pre-deceased son or daughter. The word `children’ includes the sons as well as daughters of a pre-deceased son or pre-deceased daughter, but it does not go beyond the grandchildren. If a female Hindu is not succeeded by sons and daughters or grandchildren and the husband her property would devolve upon the heirs of her husband or upon her parents or upon heirs of her father and then upon heirs of her mother. 14. Mr. Godbole tried to find support from Lachman Singh vs. Kirpa Singh and Ors. (1987) 2 SCC 547, wherein the Supreme Court made the following observations in para 5 :- “...The word `sons’ in clause (a) of Section 15(1) of the act includes (i) sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons too in view of Section 3(j) of the Act and (ii) adopted sons who are deemed to be sons for 17 purposes of inheritance. Children of any predeceased son or adopted son also fall within the meaning of the expression `sons’. On reading the above observations, it only appears that children of a female Hindu, whether legitimate or illegitimate, as well as children of any pre-deceased son or adopted son fall within the meaning of expression `son’. It is impossible to hold from these observations that the illegitimate children of a son of a woman would be included in the word `son’ within section 15(1)(a). In the present case, Kisan was the legitimate son of deceased Draupadabai and Sitaram and he could certainly inherit the property of his parents and he would also be entitled to share in the coparcenary property as a coparcener. However, he had died during the lifetime of his father as well as mother. The plaintiffs Nos. 1 to 3, who sought partition and share in the property, are the illegitimate children of deceased Kisan and the plaintiff no.4 Vimal. In view of the definition of word `related’ in section 3(1)(j) read with Section 15(1), they can succeed and inherit the property of their mother Vimal and in view of Section 16(3) of the Hindu Marriage Act, they can also succeed to their mother as well as father. Section 16(3) makes it abundantly clear that they would be entitled to inherit the property of their parents only and no other relations. They being illegitimate children cannot be deemed to be related to the grandparents which necessarily requires that the 18 children must be legitimate. Therefore, they cannot claim any right over the property of their grandparents. While taking this view, I am supported by several authorities. 15. In Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors. (2003) 1 SCC 730, the Supreme Court observed as follows :- “4. We have carefully considered the submissions of the learned counsel on either side. The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act,1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for being treated as legitimate