Kerala High Court
Divyalakshmi vs Bindu on 6 August, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
RSA NO. 1263 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 01.04.2014 IN AS
NO.113 OF 2011 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
ARISING OUT OF THE JUDGMENT DATED 22.03.2011 IN OS NO.21 OF 2009
OF MUNSIFF COURT, HARIPAD.
APPELLANT(S)/APPELLANTS/DEFENDANTS:
1 DIVYALAKSHMI
AGED 27 YEARS, D/O. DAKSHAYANI,
LAKSHMI NIVAS, KARAKKADU P.O., CHENGANNUR.
2 DAKSHAYANI
AGED 71 YEARS, W/O. SADASIVAN,
LAKSHMI NIVAS, KARAKKADU P.O., CHENGANNUR.
BY ADVS.
SRI. T. SETHUMADHAVAN (SR.)
SRI. M. R. ARUNKUMAR
SRI. P. SHAMMI NAVAS
SMT. DEEPA NARAYANAN
SRI. K. SUJAI SATHIAN
SMT. PREETHI P. V.
SMT. MARY LIYA SABU
SMT. AISWARYA S. ASHOKAN
SRI. NEERAJ KRISHNA KUMAR
SMT. AYISHA BASILA ASHARAF
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:
1 BINDU
AGED 43 YEARS, D/O. KAMALAKSHMI,
MULAMOOTTIL VEEDU, CHINNAKKADA P.O., KOLLAM.
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2 SUBIN (MINOR)
AGED 13 YEARS, MULAMOOTTIL VEEDU,
CHINNAKKADA P.O., KOLLAM - REPRESENTED BY HER
GUARDIAN BINDU, 1ST RESPONDENT.
3 SACHIN (MINOR)
AGED 11 YEARS, MULAMOOTTIL VEEDU,
CHINNAKKADA P.O., KOLLAM - REPRESENTED BY HER
GUARDIAN BINDU, 1ST RESPONDENT.
BY ADV.
SRI. AJAYA KUMAR G - R1 TO R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
06.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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EASWARAN S., J.
--------------------------
R.S.A. No. 1263 of 2014
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Dated this the 06th day of August, 2025
JUDGMENT
The defendants in a suit for partition have come up in the present
appeal aggrieved by the concurrent findings against them in O.S. No.
21 of 2009 of the Munsiff Court, Haripad and in A.S. No. 113 of 2011
of the Additional District Court – I, Mavelikkara.
2. The brief facts necessary for the disposal of the appeal are
as follows:
One Sadasivan, in his first marriage with Dakshayani had one
daughter named Divyalekshmi, the 1st defendant. Later, during the
subsistence of the first marriage, it appears that, Sadasivan had married
the 1st plaintiff, Bindu and their marriage is solemnized on 07.02.1999
as per the Hindu rituals and ceremonies. In the second wedlock
between Sadasivan and the 1st plaintiff, Bindu, two children were born;
plaintiffs 2 and 3. On 12.09.2002, Sadasivan died. Sadasivan had left
behind 1 acre 12 cents of land in Karthikappally Village and that the
properties were in joint possession of the 1st plaintiff and the
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defendants. Since the death of Sadasivan, though the plaintiffs
demanded partition, the same was refused and hence the suit. Initially,
only the 1st defendant was impleaded in the suit. The 1st defendant
contended that since Dakshayani, the first wife of Sadasivan is also a
necessary party, the plaintiffs impleaded Dakshayani as the 2 nd
defendant. The defendants resisted the suit by contending that the 1 st
plaintiff is not the legally wedded wife of late Sadasivan and that
plaintiffs 2 and 3 are not the children of late Sadasivan born in the
alleged wedlock with the 1st plaintiff. O.S. Nos. 320 and 392 of 2002
were two suits instituted by the creditors of late Sadasivan and that the
defendants alone discharged the liability. The suit having been filed
after 7 years of death of Sadasivan was clearly at the instigation of the
brother of Sadasivan. It is further contended that the 1st plaintiff was
a house maid in the house of the brother of late Sadasivan and hence
the suit is of a collusive nature. On behalf of the plaintiffs Exts. A1 and
A2 documents were produced and PW1 to PW3 were examined and on
behalf of the defendants Exts. B1 to B3 documents were produced and
DW1 was examined. The Trial Court, on appreciation of the oral and
documentary evidence, came to the conclusion that the marriage
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between the 1st plaintiff and late Sadasivan was solemnized during the
subsistence of a valid marriage with the 2nd defendant and, therefore,
the marriage cannot be said to be a valid one. However, as regards the
entitlement of the plaintiffs 2 and 3 to claim share over the deceased
Sadasivan’s property, the Trial Court held that they are entitled for share
along with the defendants 1 and 2 and accordingly, the Trial Court
decreed the suit by passing a preliminary decree and declared that the
plaintiffs 2 and 3 were entitled to get 1/4th share and defendants 1
and 2 are entitled to get 1/4th share.
Aggrieved by the judgment and decree, the defendants preferred
A.S. No. 113 of 2011 before the Additional District Court – I,
Mavelikara. The First Appellate Court, on reappreciation of the
evidence confirmed the findings of the Trial Court and dismissed the
appeal and, hence, the present second appeal.
3. When the appeal was admitted to file, by order dated
29.01.2016, this Court framed the substantial questions of law as
framed in the appeal, which reads as follows:
i. Were the Courts below right in holding that plaintiff No. 2 and 3
are entitled to get 1/4th share each and defendant No. 1 and 2 are
entitled to get 1/4th share each without a prayer in the plaint that the
declaration of paternity with respect to the plaintiff No. 2 and 3 was
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born out from the deceased P.K. Sadasivan is the father and Plaintiff No.
1 is the mother?
ii. Were the Courts below right in holding that plaintiffs No. 2 and 3
is entitle to get the right of inheritance in the property owned and
possessed by the appellants without seeking a declaratory relief of
paternity and non production of higher degrees of proof of paternity?
iii. Were the Courts below right in holding that the plaintiff No. 2 and
3 is the children of deceased P.K. Sadasivan only on the basis of oral
and documentary evidence of PWs 1 to 3 and Exhibit A1 and A2
documents without resorting to the conduct of scientific test such as
DNA Test to find out the question that whether P.K. Sadasivan is the
biological father of Plaintiffs No. 2 and 3?
iv. Whether the Courts below right in holding that Plaintiffs Nos. 2
and 3 is the children of the deceased, P.K. Sadasivan without the
production of evidence under Section 45 and 46 of the Indian Evidence
Act ?
v. Whether the Courts below right in holding that the paternity of
the illegitimate children can be proved under Section 112 of Indian
Evidence Act without go into the evidence under Section 45 and 46 of
Indian Evidence Act?
vi. Were the Courts below right in holding that the marriage
between the 1st plaintiff and deceased P.K. Sadasivan was solemnized
on 7.2.1999 at Kottayamkunnil Subramanya Swami Temple,
Nedumkolan, Kollam as per the rituals and ceremonies without
sufficient proof of marriage?
vii. Whether the Courts below right in holding that right of
inheritance on the immovable property of a male dying intestate under
Section 8 of Hindu Succession Act 1956 available to the illegitimate
children of the deceased P.K. Sadasivan overlooking the law laid down
by this Honourable Court in Shyamalavally Amma Vs. Kavalan Jisha
reported in 2007 (3) KLT-270.
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4. Heard Sri. T. Sethumadhavan, the learned Senior Counsel
appearing for the appellants assisted by Sri. M. R. Arunkumar and Sri.
G. Ajayakumar appearing for the 1st respondent.
5. Sri. T. Sethumadhavan, the learned Senior Counsel appearing
for the appellants raised the following submissions:
(a) The marriage of the 1st plaintiff with deceased Sadasivan
was solemnized on 07.02.1999 and admittedly, at that time the first
marriage was subsisting, and it was not dissolved.
(b) The plaintiff 2 and 3 were born respectively on 02.06.2000
and 01.10.2001 within a span of one year and 4 months and the short
gap between their date of birth probabilizes the defence of the
appellants that the plaintiffs 2 and 3 are not the children born out of
the wedlock between late Sadasivan and the 1st plaintiff.
(c) Except from Exts. A1 and A2 birth certificates, no other
evidence has been adduced by the plaintiffs to substantiate their claim
that plaintiffs 2 and 3 are born in the wedlock of late Sadasivan and
the 2nd plaintiff.
(d) The fact that the liabilities of late Sadasivan was discharged
by the defendants and the suit having filed 7 years after the death of
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Sadasivan would clearly indicate that the suit is set up by none other
than the brother of deceased Sadasivan.
(e) The specific case set out by the defendants is that the 1 st
plaintiff was working as a house maid in the house of PW3 who is the
brother of the deceased Sadasivan and the entire suit is instigated at
his instance.
(f) It is further pointed out that, when the status of plaintiffs 2
and 3 were denied by the defendants, the Court below ought to have
ordered the plaintiffs 2 and 3 to undergo the paternity test in order to
establish, beyond doubt, that they are the children of late Sadasivan.
In support of his contention, he has relied on the decision of the Single
Bench of this Court in Sathyaraj v. Jayaprakash [2008 (3) KHC 171].
(g) Lastly, it is contended that even if it is assumed for a moment
that plaintiffs 2 and 3 are the legitimate children of late Sadasivan,
unless and until the condition prescribed under Section 3(1)(j) of the
Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for
short) is satisfied, they will not get any right to claim property of late
Sadasivan by inheritance. In support of his contention, he has relied
on the decision of the learned Single Bench of this Court in Chodon
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Puthiyoth Shyamalavalli Amma and Others v. Kavalam Jisha and Another
[ 2007(2) KHC 976]. It is further contended that the Trial Court as well
as the First Appellate Court were engrossed in not directing the
plaintiffs 2 and 3 to appear for the paternity test. The power of the
Court to direct the parties to undergo a paternity test cannot be
considered as a violation of the right to personal liberty under Article
21 of the Constitution of India. In support of his contention, he has
relied on the decision of the Supreme Court in Sharda v. Dharmpal
[2003 (4) SCC 493].
6. Per contra, Sri. G. Ajayakumar, the learned Counsel
appearing for the 1st respondent contended that apart from an oral
assertion before this Court that the plaintiffs 2 and 3 ought to undergo
the paternity test, no specific request was made before the Trial Court
as well as the First Appellate Court by the defendants. The
solemnization of the marriage between the 1st plaintiff and the late
Sadasivan was successfully established by oral testimony of PW2 and
PW3. The mere discrimens in Exts. A1 and A2 birth certificates are not
conclusive enough to prove that, the plaintiffs 2 and 3 are not the
children of late Sadasivan. The learned Counsel further submitted that
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the marriage between the 2nd defendant and late Sadasivan subsisted
only for 9 years which is evident from the oral testimony of PW1. It is
because of the 2nd defendant neglecting to take care of late Sadasivan,
that late Sadasivan married the 1st plaintiff on 07.02.1999. It is further
contended that the argument of the learned Senior Counsel for the
appellants that in order to claim right by inheritance for the illegitimate
child, lineal descendant should be traced through the mother in terms
of the conditions prescribed under Section 3(1)(j) of the Act is
untenable in light of the decision of the Supreme Court in
Revanasiddappa v. Mallikarjun [2023 (5) KHC 486]. As regards the plea
that the plaintiffs 2 and 3 did not subject themselves to the paternity
test, Sri. Ajayakumar, the learned Counsel for the 1st respondent would
submit that in the light of the decisions of this Court in Pathukala
Sakkariya v. Salman Faris [2012 KHC 2965] and the decision of the
Supreme Court in Ivan Rathinam v. Milan Joseph [2025 KHC 6076], it
is up to the Courts to take a call on the question as to whether the party
should be subjected to paternity test. Inasmuch as, both the Trial Court
as well as the First Appellate Court did not find it expedient to order
the plaintiffs 2 and 3 to appear for the paternity test, the appellants
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cannot successfully maintain the said contention before this Court.
Since both the Courts have concurrently found against the defendants,
the present appeal is only liable to be dismissed.
7. I have considered the rival submissions raised across the Bar
and I have perused the judgments rendered by the Courts below and
also the records of the present case.
8. To answer the questions of law framed in the memorandum
of appeal, this Court needs to consider the question as to whether the
plaintiffs were successful in proving the solemnization of the marriage
between the 1st plaintiff and late Sadasivan. In this context, this Court
should first notice that oral evidence of PW2 and PW3 is available. PW2
is the uncle of the 1st plaintiff and PW3 is the brother of late Sadasivan.
Even if the oral testimony PW2 is excluded, being the uncle of the 1 st
plaintiff, the evidence of PW3 cannot be brushed aside lightly as
contended by the learned Counsel for the respondents. Though
extensively cross-examined PW3, defendants could not elicit any
contradictory statements in his oral testimony. As regards the
contention that, the 1st plaintiff was a house maid in the residence of
PW3, except for a vague assertion in the written statement, nothing has
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been brought out by cross examining PW3 to support the statement. It
is also not clear that PW3 had any animosity with late Sadasivan in
order to support the plaintiffs to deny the rightful claim of the
defendants over the plaint schedule property.
9. Coming to the discrepancy pointed out through Exts. A1 and
A2 birth certificates, on a perusal of Exts. A1 and A2, it is evident that
in Ext. A1 the initial of late Sadasivan is mentioned as ‘G’ whereas in
Ext. A2, the initial is not stated. The discrepancy as noticed above is
not enough to disprove the claim of plaintiffs which is otherwise
supported by the evidence of PW3. Both the Courts below have
concurrently found in favour of the plaintiffs based on the sole
testimony of PW3. Therefore, the entire consideration of this appeal
hinges upon ‘how this Court views the oral testimony of PW3 and that
whether there is any perverse appreciation of evidence by the Courts
below as regards the oral testimony of PW3?’. Read as may, this Court
is not persuaded to hold that the appreciation of evidence of PW3 by
the Courts below are perverse warranting interference under 100 of
the Code of Civil Procedure. As regards, the claim of the appellants
that the Courts below ought to have ordered paternity test of the
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plaintiffs 2 and 3 in order to establish that they are legal children of
Sadasivan, this Court finds that, it is not an invariable rule that as soon
as the paternity of a person is denied, the Courts should always order
the opposite party to undergo the paternity test. Compelling
circumstances should exist before the Court to order the paternity test
in order to resolve the dispute. If otherwise, the Courts can resolve the
dispute with the attendant evidence, it is not necessary that the persons
should always be subjected to undergo the paternity test. In this
context, this Court takes note of the judgment of the Supreme Court in
Ivan Rathinam (supra) wherein the Supreme Court had held that the
Courts are bound to protect the parties’ right to privacy and dignity
and also by evaluating the social stigma from one of them being
declared illegitimate to cause disproportionate harm. Paragraph 36 of
the judgment reads as under;
“36. On one hand, courts must protect the parties’ rights to privacy
and dignity by evaluating whether the social stigma from one of them
being declared ‘illegitimate’ would cause them disproportionate
harm. On the other hand, courts must assess the child’s legitimate
interest in knowing his biological father and whether there is an
eminent need for a DNA test.”
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10. In Pathukala Sakkariya v. Salman Faris [2012 KHC 2965],
Single Bench of this Court held that only in exceptional and deserving
cases where such a test becomes indispensable to resolve the
controversy, the Court can direct such test. Paragraph 6 of the
judgment reads as follows:
6. Though referring to S. 112 of the Evidence Act (for short, “the Act”)
it was held In Goutam Kundu v. State of West Bengal (AIR 1993 SC
2295) that courts in India cannot order blood test as a matter of
course, whatever applications are made for such prayer in order to
have a roving inquiry, the prayer for blood test cannot be entertained
and that there must be a strong prima facie case in that the husband
must establish non access in order to dispel the presumption arising
under S.112 of the Act. Further guidelines issued by the Supreme
Court are that court may carefully examine as to what would be the
consequence of ordering the blood test: whether it will have the effect
of branding a child as a bastard and the mother as an unchaste
woman and further that no one can be compelled to give sample of
blood for analysis. In Sunil v. Leelavati (supra) again referring to S.112
of the Act the Bombay High Court held that merely because either of
the parties have disputed the factum of paternity does not mean that
the Court should direct DNA test or such other test to resolve the
controversy. The parties should be directed to lead evidence to prove
or disprove the factum of paternity and only if the Court finds it
impossible to draw an Inference or adverse inference on the basis of
such evidence or the controversy in issue cannot be resolved without
a DNA test, it may direct DNA test and not otherwise. In other words,
only in exceptional and deserving cases where such a test becomes
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indispensable to resolve the controversy the Court can direct such
test. In any case it cannot be ordered as a matter of routine. Court
should record reasons as to how and why such test in the case is
necessary to resolve the controversy and is indispensable. Later
decision of this Court is Ramakrishnan v. Ramdas (supra) where it is
held that the Civil Court has implicit power to direct the parties to
undergo DNA test if it finds that will lead to the truth of the matter to
be unraveled in the suit.
11. The crust of the contention of the appellants appears to be
that the Courts below ought to have made the plaintiffs 2 and 3 to
undergo the paternity test. From the evidence adduced by the plaintiff
especially the evidence of PW3 and also coupled with the evidence of
DW1 who is the 2nd wife of Sadasivan and who was extensively cross
examined and who did not seriously challenge the paternity of the
plaintiffs 2 and 3 while being cross examined would lead to an
irresistible conclusion that the 2nd defendant was not serious as regards
the acceptance of the paternity of plaintiffs 2 and 3. Furthermore, this
Court cannot remain oblivious of the fact that the defendants never
sought the plaintiffs 2 and 3 to undergo the paternity test through an
appropriate application being filed before the Trial Court. Had such an
application been filed and the plaintiffs 2 and 3 refused to be subjected
to the paternity test, possibly, a different conclusion could have been
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drawn in the present case. Having not done so, this Court is not
persuaded to accept the argument of the learned Senior Counsel for
the appellants.
12. Coming to the next contention regarding the applicability of
Section 3(1)(j) of the Act, it is the specific case of the Sri.
T. Sethumadhavan, the learned Senior Counsel that going by the
decision of this Court in Chodon Puthiyoth Shyamalavalli Amma (supra)
that an illegitimate child is entitled to inherit the estate of the father
only if the marriage of the parent was solemnized and was null and
void as provided under Section 11 of the Act and that such
descendancy has to be traced through the female relative as provided
under Section 3(1)(j) of the Act, this Court finds that the said
proposition cannot be accepted for multiple reasons. As regards the
contention that the marriage between the 1st plaintiff and late
Sadasivan was never solemnized, this Court has already found that the
appreciation of the evidence of PW3 by the Courts below are not
perverse warranting interference by this Court under Section 100 of
Code of Civil Procedure. If that be, what remains is to consider the
impact of Section 3(1)(j) of the Act. It is in this context, this Court must
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consider the decision of the Supreme Court in Revanasiddappa (supra).
Paragraph 52 of the judgment is extracted as under:
52. J. The referring judgment revisited
The two Judge Bench of this Court in its referring judgment has
observed that:
(i) The decision in Jinia Keotin (which has been followed in
Neelamma) and later in Bharatha Matha has taken a narrow view of
S.16(3) of the HMA 1955;
(ii) The legislature has used the expression ‘property’ in S.16(3) but
is silent on whether such property is meant to be ancestral or self –
acquired:
(iii) S.16 contains an express mandate that such children are only
entitled to the property of their parents and not of any other
relation;
(iv) Children who are declared to be legitimate under sub-section
(1) or sub-section (2) of S. 16 ‘cannot be discriminated against and
they will be on a par with other legitimate children’ and are entitled
to all the rights in the property of their parents both self-acquired
and ancestral:
(v) The prohibition in S.16(3) will apply to such children with respect
to property of any person other than the parents,
(vi) With changing social norms what was illegitimate in the past
may be legitimate today and Hindu law itself has not remained
static with changes in society:
(vii) The HMA 1955 is a beneficent legislation intended to bring
about social reforms and hence the interpretation of S. 16(3) needs
to be reconsidered;
(viii) Amended S.16 alters the common law position that a child of
a marriage which is void or voidable is illegitimate ipso jure but that
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benefit is available only when there is a marriage and the marriage
is void or voidable in view of the HMA 1955;
(ix) In the case of joint family property such children would be
entitled to a share only in the property of their parents but cannot
claim it in their own right. On the partition of ancestral property, the
property falling to the share of the parents of such children is
regarded as their self acquired and absolute property, and there is
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 a valid marriage. However, the only limitation
is that during the lifetime of their parents such children cannot ask
for partition but they can exercise this right only after the death of
the parent;
(x) The interpretation of the Court must be guided by the
constitutional principle of individual dignity. Hence, though, the
relationship between the parents may not be sanctioned by law but
the birth of a child in such a relationship must be viewed
independently. However, there still exists some limitation of the
property rights of the children in that their right is confined to the
property of their parents; and
(xi) S. 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 and hence such children will have a right to whatever
becomes the property of their parents, whether self-acquired or
ancestral.
12.1. In the above said decision, the Supreme Court was called
upon to interpret Section16 of the Hindu Marriage Act and also the
provisions the Hindu Succession Act. While concluding, in paragraph
54, it was held as follows:
“54. K. Conclusion
We now formulate our conclusions in the following terms:
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(1) In terms of sub-section (1) of S.16, a child of a marriage which is
null and void under S. 11 is statutorily conferred with legitimacy
irrespective of whether (i) such a child is born before or after the
commencement of Amending Act 1976; (ii) a decree of nullity is
granted in respect of that marriage under the Act and the marriage
is held to be void otherwise than on a petition under the enactment;
(ii) In terms of sub-section (2) of S. 16 where a voidable marriage
has been annulled by a decree of nullity under S.12, a child
begotten or conceived before the decree has been made, is
deemed to be their legitimate child notwithstanding the decree, if
the child would have been legitimate to the parties to the marriage
if a decree of dissolution had been passed instead of a decree of
nullity;
(iii) While conferring legitimacy in terms of sub-section (1) on a
child born from a void marriage and under sub-section (2) to a child
born from a voidable marriage which has been annulled, the
legislature has stipulated in sub-section (3) of S. 16 that such a
child will have rights to or in the property of the parents and not in
the property of any other person;
(iv) While construing the provisions of S.3(1)(j) of the HSA 1956
including the proviso, the legitimacy which is conferred by S. 16 of
the HMA 1955 on a child born from a void or, as the case may be,
voidable marriage has to be read into the provisions of the HSA
1956. In other words, a child who is legitimate under sub-section
(1) or sub-section (2) of S. 16 of the HMA would, for the purposes of
S.3(1)(j) of the HSA 1956, fall within the ambit of the explanation
‘related by legitimate kinship’ and cannot be regarded as an
‘illegitimate child’ for the purposes of the proviso;
(v) S.6 of the HSA 1956 continues to recognize the institution of a
joint Hindu family governed by the Mitakshara law and the
concepts of a coparcener, the acquisition of an interest as a
coparcener by birth and rights in coparcenary property. By the
substitution of S.6, equal rights have been granted to daughters, in
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the same manner as sons as indicated by sub-section (1) of S.6;
(vi) S.6 of the HSA 1956 provides for the devolution of interest in
coparcenary property. Prior to the substitution of S.6 with effect
from 9 September 2005 by the Amending Act of 2005, S.6 stipulated
the devolution of interest in a Mitakshara coparcenary property of
a male Hindu by survivorship on the surviving members of the
coparcenary. The exception to devolution by survivorship was
where the deceased had left surviving a female relative specified in
Class I of the Schedule or a male relative in Class I claiming through
a female relative, in which event the interest of the deceased in a
Mitakshara coparcenary property would devolve by testamentary
or intestate succession and not by survivorship. In terms of sub-
section (3) of S.6 as amended, on a Hindu dying after the
commencement of the Amending Act of 2005 his interest in the
property of a Joint Hindu family governed by the Mitakshara law will
devolve by testamentary or intestate succession, as the case may
be, under the enactment and not by survivorship. As a
consequence of the substitution of S.6, the rule of devolution by
testamentary or intestate succession of the interest of a deceased
Hindu in the property of a Joint Hindu family governed by
Mitakshara law has been made the norm;
(vii) S.8 of the HSA 1956 provides general rules of succession for
the devolution of the property of a male Hindu dying intestate. S.10
provides for the distribution of the property among heirs of Class I
of the Schedule. S.15 stipulates the general rules of succession in
the case of female Hindus dying intestate. S. 16 provides for the
order of succession and the distribution among heirs of a female
Hindu;
(viii) While providing for the devolution of the interest of a Hindu in
the property of a Joint Hindu family governed by Mitakshara law,
dying after the commencement of the Amending Act of 2005 by
testamentary or intestate succession, S.6(3) lays down a legal
fiction namely that the coparcenary property shall be deemed to
have been divided as if a partition had taken place. According to the
Explanation, the interest of a Hindu Mitakshara coparcener is
deemed to be the share in the property that would have been
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allotted to him if a partition of the property has taken place
immediately before his death irrespective of whether or not he is
entitled to claim partition;
(ix) For the purpose of ascertaining the interest of a deceased
Hindu Mitakshara coparcener, the law mandates the assumption
of a state of affairs immediately prior to the death of the coparcener
namely, a partition of the coparcenary property between the
deceased and other members of the coparcenary. Once the share
of the deceased in property that would have been allotted to him if
a partition had taken place immediately before his death is
ascertained, his heirs including the children who have been
conferred with legitimacy under S. 16 of the HMA 1955, will be
entitled to their share in the property which would have been
allotted to the deceased upon the notional partition, if it had taken
place; and
(x) The provisions of the HSA 1956 have to be harmonized with the
mandate in S.16(3) of the HMA 1955 which indicates that a child
who is conferred with legitimacy under sub-sections (1) and (2) will
not be entitled to rights in or to the property of any person other
than the parents. The property of the parent, where the parent had
an interest in the property of a Joint Hindu family governed under
the Mitakshara law has to be ascertained in terms of the
Explanation to sub-section (3), as interpreted above.
The Supreme Court held that while construing provisions under
Section 3(1)(j) of the Act including the proviso, the legitimacy which is
conferred under Section 16 of the Hindu Marriage Act, 1955 on a child
born from a void or a voidable marriage has to be read into the
provisions of the Act. Therefore, applying the principles laid down by
the Supreme Court in the present case, it is inevitable for this Court to
conclude that even if the marriage between the 1st plaintiff and late
22
R.S.A. No. 1263 of 2014
2025:KER:60283
Sadasivan was solemnized during the subsistence of the 1st marriage
with the 2nd defendant, plaintiffs 2 and 3 cannot be denied their rightful
share to inherit out of the properties left behind by late Sadasivan.
Therefore, viewed in the above perspective, this Court does not find any
illegality or infirmity in the view taken by the Courts below warranting
interference in the present second appeal.
Resultantly, answering the substantial questions of law raised in
the memorandum of appeal against the appellants, this Court finds that
the appeal lacks merits and is liable to be dismissed. Hence, the present
appeal is dismissed. Parties are directed to suffer respective costs.
Sd/-
EASWARAN S.
JUDGE
Svn
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