Whether children born out of void marriage are class 1 Legal heirs as S 8 of the Hindu Succession Act?

This Court in the matter of Laxmibai

and others vrs. Limbabai, reported in 1983 Mh.L.J.103, has

recorded a finding that the children born out of the marriage

which is void cannot be termed illegitimate one and they are

covered by the expression ‘son and daughter - class-I' for

Scheduled 8 of the Hindu Succession Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATER JURISDICTION

SECOND APPEAL NO. 269 OF 1992

 Shri Vishnu Laxman Padule Vs  Laxman Rama Padule,

CORAM: N.W.SAMBRE, J .

DATE : 9 JANUARY, 2020.

Citation: 2021(2) MHLJ 288

1] This appeal is by original plaintiff. Rama was a

common ancestor who was married to Karabai. The couple

was blessed with four issues, Laxman – Defendant No.1,

Sahebrao – Defendant No.6, Tanubai – Defendant No.7 and

Sonabai – Defendant No.8.

2] Laxman claimed to have married to Shantabai –

plaintiff No.2 and was blessed with son Vishnu. It is the case

of the appellant-plaintiff that defendant No.1 drove away

plaintiff No.2 and started residing with defendant No.2

Shantabai. Defendant Nos. 3 to 5 are the sons born to

defendant No.2.

3] Since the plaintiff Shantabai and her son Vishnu

were not permitted to draw income from the ancestral

property consisting of Gat No. 323 and Gat No. 287 situated

at village Raogaon, Taluka Karmala, District Solapur, initiated

Regular Civil Suit No. 19/1975 for partition and separate

possession.

4] The suit came to be partly decreed vide

judgment and order dated 31st March, 1987, thereby allowing

the partition of Gat No. 287, thereby declaring 1/6th share to

each of the appellants, whereas the claim for partition of Gat

No. 323 was dismissed.

5] The appellant feeling aggrieved preferred

Regular Civil Appeal before the Court of learned Additional

District Judge Solapur. The appeal came to be partly

allowed, thereby modifying the shares of the appellants to the

extent of entitlement of 1/3rd instead of 1/6th in land Gat/Block

No. 287.

6] As such this appeal is by the original plaintiff,

questioning the dismissal of their claim for partition of land

Gat No. 323.

7] Heard the respective counsel. The submissions

of learned counsel for appellant Shri Aradhey is, land Gat No.

323 was initially owned by deceased Rama, who died on

21.12.1950. The said property was transferred on 23.05.1950

in favour of one Namdeo Tukaram Dhakate. The land

thereafter in 1950-51 was cultivated by one Shantaram

Jadhav. The respondent No.1 – Laxman claimed to have

started cultivating the land as a Karta of the joint family since

1953-54 and as he was in cultivating possession of the suit

property i.e. Gat No. 323 on tillers day i.e. 01.04.1957, the

sale certificate came to be issued under Section 32(m) of the

Bombay Tenancy and Agricultural Lands Act. According to

him, once the respondent No.1 was cultivating Gat No. 323 in

the capacity of Karta and the property was purchased out of

the income drawn from the cultivation of Gat No. 287 (-)

which is admittedly an ancestral property, both the Courts

below have committed an error in answering the issue in

relation to land Gat No. 323 as self acquired property of

respondent No.1. Shri Aradhye then would urge that the

provisions of Section 43 of the Bombay Tenancy and

Agricultural Lands Act will not be attracted in the case in

hand and as such the embargo on partitioning such land will

not operate against the appellant. The further contention of

Shri Aradhye is, once it is held that the original defendant

No.2 is not legally wedded wife of defendant No.1, they ought

not to have granted any share to defendant Nos. 2 to 5 in the

suit property. As such, according to Shri Aradhye, the

judgments impugned are required to be set aside thereby

decreeing the suit of the appellant in its entirety.

8] The learned counsel for respondent Nos. 1 to 3

would support both the judgments. According to him, against

the concurrent findings the present appeal is preferred which

is liable to be dismissed as there is no merit in the appeal.

9] With the assistance of respective learned

counsel, I have perused the entire record and proceedings.

10] As the respondents have come out with the case

that Gat No. 323 is not the ancestral property, but was a self

acquired property of defendant No.1, the Court below rightly

shifted the burden on the respondent No.1 to prove that land

Gat No. 323 is not an ancestral property.

11] The trial Court framed the issues at Exh. 22 as

under and were answered accordingly.

1] Whether the defendent no.1 prove that

defendant no.2 is his legally wedded wife

and that defendant nos. 3, 4 and 5 are his

legitimate sons?

In the

negative

2] Whether the defendant Nos. 1 to 5 prove

that the suit land gat no. 323 is the

ancestral property of the defendant No.1?

In the

affirmative

3] Whether the defendant Nos. 1 to 5 prove

that the plaintiffs are not entitled to claim

any share in the suit land Gat No. 323?

In the

affirmative

4] Whether the plaintiffs prove that they

have 1/3 share in the suit property?

Plaintiffs

have 1/6th

share in

Gat No.

287 only

5] Whether the plaintiffs prove that

defendants denied to allot shares to

plaintiffs in partition in response to the

plaintiff's notice dated 9.9.1974?

In the

affirmative

6] Whether the plaintiffs are entitled to

separate possession of their share by

partitioning?

In the

affirmative

only as

regard Gat

No.287.

7] Whether the defendant Nos. 1 to 5 prove

that the suit is bad for non joinder of

necessary parties ?

Does not

survive

8] Whether the plaintiffs are entitled to

mesne profit?

In the Gat

No.287

affirmative

as regards.

9] What order and decree ? The suit is

partly

decreed.

10] Do plaintiffs prove that they have right

to file this suit for partition?

In the

affirmative

11] Is the suit barred by B.P. and P.H. Act? In the

negative

12] Is the suit of plaintiffs in respect of Gat

No. 323 barred by Bombay Tenancy Act?

In the

affirmative

13] Does the defendant No.6 prove that

there took place partition in between

plaintiff and defendant nos. 1 to 6 and he

has got 1/2 share in all the suit properties?

In the

negative

14] Does he further prove that the

defendant no.2 is concubine of defendant

No.1 and defendant Nos. 3 to 5 are the

sons of defendatn No.2 and born to

defendant no.1?

In the

negative

15] Do plaintiffs prove that land Gat No.323

was obtained under the provisions of

Tenancy Act by the joint family of the

plaintiffs and defendants ?

In the

negative

16] Whether defendnt No. 7 and 8 have got

any share in the suit property ?

In the

negative

17] Do defendant No. 1 to 5 prove that they

have expended Rs.9000/- for the

improvement of land Gat No. 323?

In the

negative

12] It is established through the evidence of respective

parties that land Gat No. 323 was an ancestral property of the

plaintiffs and the defendants. Said property was mortgaged to

Namdeo and was in possession of the respondent – defendant

No.1. In his evidence plaintiff No.2/Appellant has admitted that

deceased Rama sold the suit property Gat No. 323 to Namdeo

vide sale deed dated 23rd May, 1950 - Exh.99 and the possession

thereof stood handed over to said Namdeo.

13] From the evidence of the respective parties, it has

come on record that respondent No.1 started cultivating the said

8 sa269.92.odt

land as a tenant of Namdeo with effect from 1953-54 and

continued to be in possession on tillers day i.e. 1st April, 1957.

14] Pursuant to proceedings taken out under the

provisions of the Bombay Tenancy and Agricultural Lands Act, the

land was purchased by defendant No.1 on 20th August, 1960, as

there is Section 32(m) proceedings answered in favour of

respondent No.1. Both the Courts below noticed that respondent

No.1 continued in possession of Gat No. 323 from 1953 onwards

and was earning independently from the suit property and as

such adjudicated the said property Gat No. 323 as that of self

acquired property of respondent No.1.

15] Apart from above, the fact remains that the

provisions of Section 43 of the said Act reads thus –

"(1) No land purchased by a tenant under Section 32,

32F, (32-I, 32P) (33-C or 43-1D) or sold to any person

under Sec. 32-P or 64 shall be transferred by sale,

gift, exchange, mortgage, sale or assignment or

partitioned without the previous sanction of the

Collector (such sanction shall be given by the

Collector in such circumstances, and suject to such

conditions, as may be prescribed by the State

Government"

16] As such the property cannot be subjected to partition

though a claim to that effect is made by the appellant without

there being any permission from the Collector to that effect.

17] Apart from above, the Courts below have relied on

the provisions of the Hindu Marriage Act, particularly Section 8 of

the Hindu Succession Act. This Court in the matter of Laxmibai

and others vrs. Limbabai, reported in 1983 Mh.L.J.103, has

recorded a finding that the children born out of the marriage

which is void cannot be termed illegitimate one and they are

covered by the expression ‘son and daughter - class-I' for

Scheduled 8 of the Hindu Succession Act.

18] Apart from above, fact remains that even though the

claim for partition was consented by the defendant No. 6 who

happens to be brother of defendant No.1, that by itself will not

entitle the appellant to claim partition of Gat No. 323, which was

already held to be self acquired property of defendant No.1.

19] In view of the defence raised by defendant No.1, the

burden was shifted on defendant Nos. 1 to 5 to prove the fact that

it was their self acquired property, which they have rightly

discharged.

20] The first appellant Court while reconsidering the

claim of the appellant for the share to the extent of 1/3rd in Gat

No. 287 has considered the entitlement of defendant No.6 to the

suit property being brother of defendant No.1 and as such rightly

carved out 1/3rd share in favour of the appellants.

21] In the aforesaid background, the concurrent findings

which are recorded by both the Courts below are based on

proper appreciation of legal provision and the documentary

evidence, so also the legal provisions under the provisions of

Bombay Tenancy and Agricultural Lands Act, Hindu Marriage Act

and Hindu Succession Act.

22] In my opinion, no case for interference against the

concurrent findings is made out. The appeal as such fails. It is

dismissed.

JUDGE