Child Born In 'Batil' Marriage Is Illegitimate, Has No Right To Succession Of Father's Property: Karnataka High Court

The Karnataka High Court has said that a son, born in 'Batil' marriage (void-ab-initio) under Mohammadan Law, is illegitimate and does not possess any right of succession under the law.

A single judge bench of Justice V Srishananda allowed the appeal filed by one Nabisab Agnnamani (original plaintiff) and set aside the order of the first appellate court which granted half share of ancestral property to Hatelsab Sannamani (original defendant), holding him to be a legitimate son born to Fakiramma through Huchchesab who is the father of the plaintiff.

The primary contention of plaintiff was that Fakiramma was married to one Moulasab Menasagi and in absence of any proof of dissolution of that marriage, her second marriage with his father was void under Section 253 of Mohammadan Law.

The bench took into account the evidence of witness examined by the plaintiff wherein he mentioned that in the 'varadi' (report) to the revenue authority for including the name of the defendant in respect of the suit lands, one Moulasab Sannamani had signed for defendant as his elder brother.

Following which the court said, “Since defendant DW1 has admitted in clear and categorical terms that one Moulasab Sannamani who is the elder brother of DW1 has signed as a guardian of DW1, it presupposes that Fakiramma must have been married Moulasab Menasagi earlier to her marriage with Huchchesab.”

Further it said “Since the defendant pleaded that he is the son born to Fakiramma through Huchchesab who is the father of the plaintiff, it was incumbent on the defendant to establish that the marriage of Fakiramma with Huchchesab was a valid marriage.”

It held that unless the first marriage of Fakiramma with Moulasab Menasagi is duly dissolved as per the Mohammadan law, her marriage with Huchchesab should be considered as a 'Batil' marriage.

"Therefore, even though the defendant is the son of Huchchesab through Fakiramma, he would be considered as an illegitimate son. The finding recorded by the First Appellate Court without there being any discussion that the defendant and his sister Fatubi are the legitimate son and daughter of Fakiramma needs interference by this Court in this appeal.”

Accordingly, it allowed the appeal and set aside the order of first appellate court. “In the absence of any plausible evidence placed on behalf of the defendant that Fakiramma was eligible to marry Huchchesab, without there being a decree of divorce or dissolution of marriage in accordance with the Mohammadan law. This Court is of the considered opinion that contrary finding recorded by the learned Judge in the First Appellate Court holding that the defendant is a legitimate son and therefore dismissing the suit, in the considered opinion of this Court is a perverse finding.”

Case Title: Nabisab s/o. Huchchesab Agnnamani AND Hatelsab s/o Huchchedab Sannamani

Case No: REGULAR SECOND APPEAL NO. 1467 OF 2007

Citation: 2023 LiveLaw (Kar) 293

Date of Order: 14-07-2023

Appearance: Advocates Sadiq N Goodwala & T.M.Nadaf for Appellants.

Advocate Suraj M Katagi for Respondent.

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