Son From Void Marriage Is Conferred With Legitimacy U/S.16(1) Of Hindu Marriage Act & Entitled To Succeed To Property Of His Father: Andhra Pradesh High Court
The Andhra Pradesh High Court was considering an appeal filed under Section 96 of the CPC arising from a suit filed for the relief of recovery of possession of the suit schedule properties.
Justice Ravi Nath Tilhari, Justice Maheswara Rao Kuncheam, Andhra Pradesh High Court
While partly allowing an appeal in a property dispute matter, the Andhra Pradesh High Court has held that the son born of a void marriage is conferred with legitimacy under Section 16(1) of the Hindu Marriage Act, 1955 and also entitled to succeed to the property of his father as per Section 16(3) read with Section 8 and Schedule-I – Class-I heir.
The High Court was considering an appeal filed under Section 96 of the Code of Civil Procedure (CPC) by the plaintiff who was aggrieved by an earlier judgment and decree. The suit, which gave rise to the appeal, was filed for the relief of recovery of possession of the suit schedule properties after setting aside/cancelling a compromise decree.
The Division Bench of Justice Ravi Nath Tilhari and Justice Maheswara Rao Kuncheam held, "So, by applying the legal provision the marriage was void under Section 11 read with Section 5(i) of the H.M. Act, 1955. Plaintiff would therefore be illegitimate son of Ch. Keshava Rao but conferred with legitimacy under Section 16(1) of the H.M.Act and also entitled to succeed to the property of his father Ch. Kesava Rao, as per Section 16(3) of the H.M.Act read with Section 8 and Schedule-I – Class-I heir."
The Bench further added, “The plaintiff being the son of Chennupati Kesava Rao, would be entitled to succeed to the estate of Pushpavathi under Section 15 (1) (b) and Section 15 (2) (b) of the Hindu Succession Act, as the legal heir (son) of Chennupati Kesava Rao, i.e the pre-deceased husband of Pushpavathi..". Holding that the plaintiff would not be regarded as an illegitimate child, even for the purpose of proviso to Section 3(1)(j) Hindu Succession Act, the Bench asserted, “On points-‘C’ & ‘D’, we hold that the plaintiff-appellant is not the absolute owner, but has 5/6th share and the defendant-respondent has 1/6th share in the estate of Ch. Keshava Rao, ‘A’ chedule property of O.S.No.197 of 2009 and ‘A’ schedule property of O.S.No.552 of 1994 taken together.”
Advocate N. Subba Rao represented the Appellant while Advocate K.S. Gopala Krishnan represented the Respondent.
Factual Background
One Chennupathi Kesava Rao was married to Chennupathi Pushpavathi. They were not having issues. Kesava Rao married Manikyamba @ Mani, and the plaintiff-appellant Naga Venkata Krishna was their son. Kesava Rao died intestate in 1990. The respondent Jagan Mohan, the defendant in the suit, is the elder brother’s son of Kesava Rao. In the suit, the plaintiff claimed that, taking advantage of the death of Kesava Rao, the defendant in contact with Pushpavathi started managing the estate of Kesava Rao, and the plaintiff was a minor at that time. The plaintiff‘s mother did not have a proper education, and the defendant, by playing fraud and misrepresentation, obtained signatures on some papers under the pretext of providing maintenance. It was the plaintiff’s case that the maternal grandfather of the plaintiff, representing as plaintiff’s guardian and next friend, filed a suit which was managed by the defendant, in which the compromise was recorded.
The plaintiff pleaded that all the records were with the maternal grandfather, and the same were misplaced. Subsequently, the plaintiff‘s mother obtained the certified copies of the judgment and decree passed in the suit. The plaintiff, after attaining the majority became aware of all these facts and filed the present suit to set aside the compromise decree. The Respondent, on the other hand, denied the marriage of Kesava Rao with Manikyamba @ Mani. The plaintiff was denied to be the son of Kesava Rao. It was further claimed that the plaintiff and his mother filed a suit for partition of the properties, against Ravamma (the mother) and Pushpavathi (the wife) of Kesava Rao.
As per the defendant, the suit was compromised and a compromise decree was passed agreeing to give an amount of Rs 5,50,000 to the plaintiff as full and final settlement of all the claims. As per the defendant, the plaintiffs later demanded some property instead of cash as agreed in the compromise decree, which was refused. The Trial Court set aside the compromise decree and held the plaintiff not entitled to the relief of a declaration of his title over the entire suit schedule properties. He was entitled to claim 1/3rd share in the properties of his father, Kesava Rao, as the illegitimate son. The plaintiff approached the High Court, being aggrieved by the Trial Court’s decision not to decree the suit as a whole.
Reasoning
The Bench explained that where there is no sanction of the Court and the next friend or guardian of a minor enters into an agreement or compromise, such compromise or agreement on behalf of the minor is voidable at the instance of the minor which the minor can avoid on attaining the age of majority within the period of limitation and if the minor chooses to avoid, it would be set aside.
The Bench held, “We are of the view, in the present case that, the plaintiff being minor at the time of the compromise which was entered without leave of the court, he on attaining the majority, within the period of limitation, could file the suit for cancellation of the compromise decree, as such a compromise decree would be voidable at the instance of the minor. In our view the suit for cancellation of a compromise decree, without leave of court, by a minor on attaining majority, would be maintainable and Order 23 Rule 3A CPC would not come in the way of filing a suit for cancellation of such a compromise decree. The remedy to apply to recall in the same suit may be open but that would not bar filing of the suit. So, O.S.No.197 of 2009 was not barred by Order 23 Rule 3A CPC.”
The Bench also referred to the judgment in Revanasiddappa and others vs. Mallikarjun and others (2023), where the Apex Court has held that the legitimacy which is conferred by Section 16 of the H.M.Act on a child born of a void marriage or voidable marriage has to be read in H.S.Act. Such a child would fall within the ambit of Explanation ‘related by legitimate kinship’ under Section 3 (1)(j) of H.S.Act and cannot be regarded as a legitimate child for the purpose of its proviso.
As per the Bench, the Plaintiff was the illegitimate son of Keshava Rao but was conferred with legitimacy under Section 16(1) of the Hindu Marriage Act, and also entitled to succeed to the property of his father Keshava Rao, as per Section 16(3) of the H.M.Act read with Section 8 and Schedule-I – Class-I heir. Considering that Keshava Rao died intestate and was survived by plaintiff- Naga Venkata Krishna (son), Ravamma (mother) and Pushpavathi (wife), the Bench held that they all would succeed in equal shares 1/3rd each being the heir of Class-I.
The Bench further held that the plaintiff was not the absolute owner but would be entitled to a 5/6th share. It explained that on the death of Kesava Rao, the plaintiff would get 1/3rd share being Class-I heir; on the death of Ravamma (grandmother), the plaintiff would get ½ of 1/3rd of Ravamma, i.e.1/6th and on the death of Pushpavathi (stepmother), the plaintiff would take her 1/3rd estate under Sections 15 (1) (b), 15 (2) (b) read with Section 16 of Hindu Succession Act.
Thus, partly allowing the appeal and affirming the Trial Court’s decree to the effect it set aside the compromise decree, the Bench held that the plaintiff-appellant would be entitled to 5/6th share and the defendant-respondent to 1/6th share in the schedule properties.
Cause Title: Chennupati Naga Venkata v. Chennupati Jagan Mohan (Appeal Suit No.841 OF 2015)