Hindu Marriage Act, 1955
Section 16 (1)—Legitimacy of children of void and voidable marriages—In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 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.
[Para 54]
Section 16 (2)—Legitimacy of children of void and voidable marriages—In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 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.
[Para 54]
Section 16 (3)—Children born out of void and voidable marriages—Rights in or to the property of parents—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 Section 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.
[Para 54]
Hindu Successions Act, 1956
Section 3 (1) (j)—Related” means related by legitimate kinship—A child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the Hindu Marriage Act would, for the purposes of Section 3 (1) (j) of the Hindu Successions Act, 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.
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Section 6—Devolution of interest in coparcenary property—Section 6 of the Hindu Successions Act 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 sub-stitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6 of the Act.
[Para 54]
Section 6—Devolution of interest in coparcenary property—Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary—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 Section 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 sub-stitution of Section 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.
[Para 54]
Section 6—Devolution of interest in coparcenary property—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, Section 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 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.
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Hindu Law
Succession—Entitlement to share in coparcenary property—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 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 Section 16 of the HMA, 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—Provisions of the Hindu Successions Act have to be harmonized with the mandate in Section 16 (3) of the HMA 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—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) of Section 16 of the Hindu Marriage Act.
[Para 54]
ppearances :
Advocates for the Appellants : Ms. Kiran Suri, Mr. TSR Venkataramana, Sr. Advocates with Mr. S.J. Amith, Ms. Aishwarya Kumar, Ms. Vidushi Garg, Mr. Purvesh Buttan, Dr. (Mrs.) Vipin Gupta, Mr. G.S. Mani, Janaki Devi, Mr. Abhay Singh, Mr. Ramesh Singh Thakur, Mr. R. Sathish, Ms. Manju Jetley, Mr. Vivek Solshe, Mr. Amol B. Karande, Mr. Narendra Rao Thaneer, Mr. Shivang Singh, Mr. Aditya Yadav, Ms. Palak Mathur, Mr. Varun Solshe, Mr. Satyajit A. Desai, Mr. Siddharth Gautam, Mr. Abhinav K. Mutyalwar, Mr. Gajanan N. Tirthkar, Mr. Vijay Raj Singh Chouhan, Ms. Anagha S. Desai, Mr. Sudhanshu S. Choudhari, Ms. Jaikriti S. Jadeja, Vatsalya Vigya, Mr. Sdhakul R. Ghatole, Mr. Mahesh P. Shinde, Ms. Rucha A. Pande, Mr. Aman Shreyas, Mr. M. Veeraragavan, Ms. Yashaswimi Chauhan, Mr. Ranbir Singh Yadav and Mr. Nikhil Majithia
Advocates for the Respondents : Ms. V. Mohana, Mr. Vivek Chib, Mr. A.I.S. Cheema, Sr. Advocate with Ms. Bhavya Pandey, Ms. Sreha Botwe, Mr. Abid Ali Beeran P, Mr. B. Ragunath, Ms. N.C. Kavitha, Mr. Vijay Kumar, Mr. Kunal Cheema, Ms. Ruchita Kunal Cheema, Mr. Shivam Dube, Mr. Raghav Deshpande, Ms. Abha R. Sharma, Mr. Apoorv Kurup, Mr. Chandra Prakash, Mr. P.B. Suresh, Mr. Vipin Nair, Mr. S. Rajappa, Mr. Avinash B. Amarnath, Mr. Mukesh K. Giri, Mr. Nishant Ramakantrao Katneshwarkar, Mr. Samrat Krishnarao Shinde, Mr. Shirish K. Deshpande, Ms. Rucha Preavin Mandlik, Ms. Harsimra Kaur Rai, Mr. Sharangouda N. Patil, Mr. Mohit Gautam, Mr. Apoorv Sharma, Mr. Harrish Ahmed, Mr. Shanthakumar V Mahale, Mr. Rajesh Mahale, Ms. Jyotika Kalra, Mr. Aditya Jha, Ms. Annvesh Deb, Mr. Lakshmi Raman Singh, Mr. H. Chandra Sekhar and Mr. Sriram P.