Children From Void Marriage Can't Be Denied Share In Their Parent's Property : Supreme Court

The Supreme Court on Friday (January 19) held that the children born out of a void and voidable marriage shall be considered as legitimate children and be treated as an extended family of the common ancestor for the purpose of deciding a valid share in the property of the common ancestor.

Reversing the findings of the High Court, the Bench of Justices MM Sundresh and SVN Bhatti noted that once the common ancestor has admittedly considered the children born of void and voidable marriage as his legitimate children, then such children would be entitled to the same share as the successors in the property of the common ancestor as that of children born out of a valid marriage.

Briefly put, one Muthusamy Gounder (dead) is a common predecessor in interest. He had three marriages out of which two marriages were declared void. Out of these three marriages, Gounder has five children i.e., four sons and one daughter. The legitimate son (Respondent no.3) born out of a valid marriage filed the suit for partition before the trial court. Moreover, the children born out of a void marriage were also impleaded as defendants before the trial court. The trial court decreed the suit for partition in favour of the legitimate child.

Challenging the order/judgment of the trial court, the children from void marriage preferred an appeal before the High Court. However, the appeal was dismissed by the High Court.

It is against the impugned order/judgment of the High Court that the present Civil Appeal was preferred before the Supreme Court.

Issue

Whether children born out of void marriages would be entitled to share in the property of a common ancestors as his successors?

Observation

The judgment authored by Justice Bhatti noted that the admission of the common ancestor to treat the children born out of a void marriage as his legitimate children would be also considered as an evidence against his legitimate child, who is claiming through the common ancestor.

“The Privy Council in Gopal Das and another v. Sri Thakurji and others, held that a statement made by a person is not only evidence against the person but is also evidence against those who claim through him.”

In light of the admission made by the common ancestor, the court took perusal of certain documentary evidences to draw an inference that the common ancestor treated the children born out of void marriage as his legitimate children.

“By applying Sections 17 and 18 of the (Indian Evidence Act)Act, we are convinced that Muthusamy Gounder made a statement describing Appellant No. 1 and Respondent No. 1 as his sons and treated as an admission by record. This statement satisfies the ingredients of Section 18 of the Act. Further, in the absence of contrary evidence and withdrawal of admission or explained through admissible evidence, the admission in the mortgage deed, viz., Ex. B-6, coupled with the joint patta and voters lists, declares the status of Appellant No. 1, Respondent No. 1, along with Respondent No. 3 as the sons of Muthusamy Gounder”,

The court noted that the children born out of void marriages would be treated as successors in the interest of Muthusamy Gounder, and accordingly the shares need to be worked out. To this effect, the following observation of the court is meaningful:

“Once the status of the parties, other than Respondent No. 3, is established as the extended family of the propositus, irrespective of whether the marriages of Appellant No. 2 and Respondent No. 2 with Muthusamy Gounder are void or voidable, denying the children of Muthusamy Gounder a share in the property of notional partitioned in favour of Muthusamy Gounder, is unsustainable in law and fact.”

It is worthwhile to mention that the Supreme Court in Revanasiddappa and another v. Mallikarjun and others, noted that the children born out of void or voidable marriage would possess rights in their parent's property but ancestral property. While relying on the aforesaid judgment, the court in the present case upheld the entitlement of the children born out of void and voidable marriage in the common ancestor property and passed the decree of partition accordingly.

“By applying the above principle on the entitlement of share to the children of void or voidable marriages, the judgements under appeal are liable to be set aside and are accordingly set aside. We allow the appeal by passing a preliminary decree of partition for the plaint schedule properties, firstly between Respondent No. 3 and Muthusamy Gounder. Secondly, in the notionally partitioned share of Muthusamy Gounder, his children, i.e., Appellant Nos. 1 and 3, Respondent No. 1 and Respondent No. 3 are allotted equal shares.”

Accordingly, the appeals were allowed.

Advocate N.S. Nappinai, appeared for the Appellants, whereas Advocate Vinodh Kanna B. appeared for the Respondents.

Case Title: RAJA GOUNDER AND OTHERS VERSUS M. SENGODAN AND OTHERS

Citation : 2024 LiveLaw (SC) 48

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