CASE DETAILS v. MALLIKARJUN & Ors.

From the Judgment and Order dated 07.11.2008 of the High Court of Karnataka, Circuit Bench at Gulbarga in R.S.A. No.550 of 2006. With Civil Appeal No. 2312 of 2021, SLP (C) Nos. 23397-98 of 2018, Civil Appeal No.7318 of 2014, SLP (C) No.81 of 2016, Civil Appeal No.4398 of 2019, SLP (C) Nos.14176-77 of 2016, 27834 of 2017 and 1573-74 of 2021 Appearances: Ms. Kiran Suri, TSR Venkataramana Sr. Advs., Ms. Manju Jetley, Vivek Solshe, Amol B. Karande, Raj Saheb Patil, Narendar Rao Thaneer, Varun Solshe, Shivangi Singh, Aditya Yadav, Ms. Palak Mathur, Satyajit A Desai, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, Ms. Anagha S. Desai, Sudhanshu S. Choudhari, Ms. Jaikriti S. Jadeja, Amaan Shreyas, Mahesh P. Shinde, Ms. Rucha A. Pande, M. Veeraragavan, Yashaswini Chauhan, S.J. Amith, Ms. Aishwarya Kumar, Ms. Vidushi Garg, Purvesh Buttan, Dr. (Mrs.) Vipin Gupta, Ranbir Singh Yadav, Prateek Yadav, Puran Mal Saini, Ms. Anzu K Varkey, Ritesh Patil, Yogesh Yadav, Pati Raj Yadav, Mohammed Shahrukh, R. Sathish, G S Y, Ms. Janaki Devi, Abhay Singh Yadav, Nikhil Majithia, Neeleshwar Pavani, Harshit Agarwal, Aasheesh Gupta, Kamal Kumar, Advs. for the Appellants. K. Radhakrishna, Ms. V Mohana, Vivek Chib, A.I.S. Cheema, Sr. Advs., Mrs. Rajani. K. Prasad, B. Krishna Prasad, Ms. Abha R. Sharma, Apoorv Kurup, Rohit Anil Rathi, Vijay Kumar Panpalia, Chandra Prakash, P.B. Suresh, Vipin Nair, Arindam Ghosh, Karthik Jayashankar, Anshumaan Bahadur, P. B. Sashaankh, Abid Ali Beeran P, Ms. Bhavya Pande, Ms. Sneha Botwe, Ms. Yashika Sharma, B Ragunath, Ms Vishnushankar, Mrs. Nc Kavitha, Ms. Unnati Jhujhunwala, Ms. Mansi Gupta, Vijay Kumar, S. Rajappa, V Prabhakar, Ms. Jyoti Parashar, Nj Ramchandar, R Gowrishankar, Avinash B. Amarnath, Mukesh K. Giri, Nishant Ramakantrao Katneshwarkar, Samrat Krishnarao Shinde, Kunal Cheema, Ms. Ruchita Kunal Cheema, Shivam Dube, Raghav Deshpande, Shirish K. Deshpande, REVANASIDDAPPA & ANR. v. MALLIKARJUN & ORS. 325 Ms. Rucha Pravin Mandlik, Ms. Harsimran Kaur Rai, Mohit Gautam, Apoorv Sharma, Shanthkumar V Mahale, Rajesh Mahale, Sriram P., Ms. Jyotika Kalra, Joydeep Mukherjee, Ms. Annwesha Deb, Lakshmi Raman Singh, H. Chandra Sekhar, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT DR. DHANANJAYA Y CHANDRACHUD, CJI Table of Contents A. The reference to the three Judge Bench ...................................3 B. Statutory conferment of legitimacy ..........................................6 C. Rights in or to the property of parents ....................................14 D. Issues in the reference ............................................................16 E. Submissions: ...........................................................................17 F. Joint Hindu family and coparcenary under Mitakshara .........23 G. Hindu Succession Act 1956 ....................................................27 H. Property of the Parents ...........................................................39 I. J. Legitimacy and Coparcenary ..................................................46 The referring judgment revisited: ...........................................51 K. Conclusion ..............................................................................55 A. The reference to the three Judge Bench

1. A child born to parents whose marriage is null and void under Section 11 of the Hindu Marriage Act 19551 is declared to “be legitimate” by Section 16 (1) if a child “of such marriage... would have been legitimate if the marriage had been valid.” Likewise, where a decree of nullity has 1 The Hindu Marriage Act 1955 (HMA) 326 SUPREME COURT REPORTS [2023] 14 S.C.R. been granted under Section 12 in respect of a voidable marriage, a child “begotten or conceived before the decree is made” is “deemed to be their legitimate child” if such a child would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of being annulled2. Section 16(3) enunciates that a child of a marriage that is null or void or which is annulled by a decree of nullity shall not have “any rights in or to the property of any person, other than the parents” where but for the enactment of the legislation such a child would be incapable of possessing or acquiring any such rights “by reason of his not being the legitimate child of his parents”.

2. Several decisions of this Court have considered the nature of the property rights conferred on children of parents whose marriage is either void or in respect of which a decree of nullity has been passed under Section 12. In Jinia Keotin v Kumar Sitaram Manjhi3, a two judge Bench held that merely because the children born out of a void and illegal marriage have been specifi cally safeguarded under Section 16, they ought not to be treated on par with children born from a lawful marriage for the purpose of inheritance of the ancestral property of the parents4. This Court held that in view of the express mandate of the legislature in Section 16(3), a child born from a void marriage or a voidable marriage in respect of which a decree of nullity has been passed would have no right to inheritance in respect of ancestral or coparcenary property. The decision in Jinia Keotin was followed by two judge benches in Neelamma v Sarojamma5and later in Bharatha Matha v R Vijaya Renganathan6. After adverting to the two earlier decisions, this Court held that “a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled only to claim a share in self-acquired properties.”7

3. The correctness of the decisions in Jinia Keotin, Neelamma,