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Raghunath Alias Ashok Nana Patil Vs. Nana Rama Patil - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case Number Second Appeal No. 243 of 1979
Judge
Reported in(1985)87BOMLR488; 1986MhLJ106
AppellantRaghunath Alias Ashok Nana Patil
RespondentNana Rama Patil
DispositionAppeal allowed
Excerpt:
.....of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - , the said nana rama patil and this is precisely his suit. section 16 is large in its amplitude and covers every kind of property 'of the parents'.the provisions of section 16 are clearly calculated to bring about a change, if not so much in the social, but certainly in the economic position of an illegitimate child, and must now be construed so as to impugned as little as possible on the broad sweep of the ameliorative position......2. the facts that give rise to this appeal are that one rama aba patil had two sons viz., nana rama patil (respondent no. 1 herein) and annappa rama patil (respondent no. 4 herein). gojabai, (wrongly described in the paper book as yojabai) respondent no. 3, is the first wife of the said nana rama patil. respondent no. 1. shripati, respondent no. 2, is the son of the said nana and gojabai respondent no. 3. on or about the april 23, 1966, the said nana rama patil respondent no. 1 contracted a second marriage viz., with one ratnabai. raghunath (the appellant herein) and one sonabai and one anutai are the children of this second marriage. the said sonatai and anutai are, however, not parties to these proceedings. the said rama aba patil died on may 18, 1966, and on his death, his.....
Judgment:

N.K. Parekh, J.

1. The appellant in this matter is the original plaintiff in Regular Civil Suit No. 78 of 1975 on the file of the Court of the Civil Judge, Junior Division, Radhanagari at Radhanagari and the appellant in Regular Civil Appeal No. 360 of 1977 on the file of the Extra Assistant Judge, Kolhapur.

2. The facts that give rise to this appeal are that one Rama Aba Patil had two sons viz., Nana Rama Patil (respondent No. 1 herein) and Annappa Rama Patil (respondent No. 4 herein). Gojabai, (wrongly described in the paper book as Yojabai) respondent No. 3, is the first wife of the said Nana Rama Patil. respondent No. 1. Shripati, respondent No. 2, is the son of the said Nana and Gojabai respondent No. 3. On or about the April 23, 1966, the said Nana Rama Patil respondent No. 1 contracted a second marriage viz., with one Ratnabai. Raghunath (the appellant herein) and one Sonabai and one Anutai are the children of this second marriage. The said Sonatai and Anutai are, however, not parties to these proceedings. The said Rama Aba Patil died on May 18, 1966, and on his death, his properties devolved upon the said Nana Rama Patil (respondent No. 1) and Annappa Rama Patil (respondent No. 4). They divided the said property between them each taking one half of the same. It appears that certain disputes and differences having arisen between Nana Rama Patil, respondent No. 1 and his second wife Ratnabai, Raghunath the appellant herein through his mother Ratnabai filed a suit being Regular Civil Suit No. 78 of 1975 in the Court of the Civil Judge, Junior Division, Radha-agari. In this suit, the said Raghunath (the appellant herein) averred that the property of Rama Aba Patil was partitioned between his father i.e. Nana Rama Patil respondent No. 1 herein and the said Annappa Rama Patil respondent No. 4 herein. He also contended that the said Nana Rama Patil respondent No. 1 was neglecting his mother Ratnabai and that she had to live separately from the said Nana Rama Patil respondent No. 1. In the suit, he also claimed' that he the appellant (herein) was a Class I heir, and was entitled to claim a partition of the property in the hands of his parent i.e., Nana Rama Patil (respondent No. 1 herein) and he claimed one-fourth share in the property. Shripati (respondent No. 2 herein) and Gojabai (respondent No. 3 herein) filed their written statement, inter alia, contending that Nana Rama Patil respondent No. 1 having married Gojabai i.e. respondent No. 3, could never have contracted a second marriage with Ratnabai. That the said marriage with Ratnabai was void. That Raghunath (the appellant) was, therefor, an illegitimate son and he could not claim a partition and/or a right in any property coming to the hands of the said Nana Rama Patil, respondent No. 1, much less, in the ancestral property coming into the hands of Nana Rama Patil, respondent No. 1. That the said Raghunath (the appellant herein) was hence not entitled to any relief.

3. In this matter, issues came to be framed and the matter was proceeded with. The learned Trial Judge, by his judgment and decree dated July 27, 1977, inter alia, held that since Raghunath, the appellant herein, was an illegitimate son, he could claim no interest to the property that had come to the hands of his father Nana Rama Patil during the life time of his father the said Nana Rama Patil and dismissed the suit. Being aggrieved by this judgment, the said Raghunath preferred an appeal, being appeal No. 360 of 1977 on the file of the Court of the Extra Assistant Judge at Kolhapur. By an order dated November 24, 1978, the said appeal came to be dismissed. Being aggrieved by the same, the appellant has filed this second appeal. The same is contested by the respondents.

4. The questions that now arise are that if the marriage of Nana (respondent No. 1) with Ratnabai is void or voidable, and Raghunath the appellant herein is an illegitimate son, does he take an interest in the property that has come to the hands of his father Nana Rama Patil from his (i.e., the latter's) ancestors- If the answer is in the affirmative, can Raghunath the appellant institute proceedings for a partition of this property during the life time of his father Nana Rama Patil, respondent No. 1? If the answer to the second question is in the affirmative, what is the share of Raghunath, the appellant?

5. Now, insofar as the ancestral property in question is concerned, admittedly, the same belonged to Rama Aba Patil. Then again, it is not in dispute that on the death of the said Rama Aba Patil, the same devolved on his two sons the said Nana Rama Patil (respondent No. 1) and Annappa Rama Patil (respondent No. 4), Raghunath the appellant has in his plaint stated that on such devolution, the property came to be partitioned between the said Nana respondent No. 1 and Annappa respondent No. 4. None of the respondents have disputed this position at the trial. Hence, this fact was never in issue. Not only this but insofar as Shripati respondent No. 2 is concerned', he had, in an earlier suit filed by him being Suit No. 6 of 1970, pleaded that the property derived from Rama Aba Patil was partitioned between Nana Rama Patil (respondent No. 1 herein) and Annappa Rama Patil (respondent No. 4 herein). So much so for the character of the ancestral property in question isn the hands of Nana Rama Patil respondent No. 1.

6. In so far as the legal status of Raghunath is concerned, it is an admitted position that Nana Rama Patil had two wives, one being Gojabai (respondent No. 3) who is his first wife, and the second being Ratnabai, the mother of the appellant. Even if it be held that the marriage with Ratnabai is void and/or voidable, then Raghunath the appellant would be an illegitimate son of the said Nana Rama Patil, respondent No. 1. One must now turn to Section 16 of the Hindu Marriage Act, 1955.

7. The present Section 16 has been substituted for the original Section 16. Clause (1) of the present Section 16 of the Hindu Marriage Act 1955 provides that any child of a marriage which is null and void under Section 11 of the Hindu Marriage Act shall be considered as legitimate whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and irrespective of a decree of nullity having been passed. In other words, the illegitimate child is equated with a legitimate child. Section 16(1) confers certain property rights on the illegitimate child in so far as the property of the parents is concerned, thus removing the handicap under which such illegitimate children laboured. However, the section also provides that the said rights so conferred do not extend to the (property 'of any other person, other than the parents'. Hence, if Raghunath is an illegitimate child,, by reason of Section 16(1) of the Hindu Marriage Act, Raghunath must now be equated to the legitimate offspring viz., Shripati respondent No. 2 (i.e., the son of Nana Rama Patil through his first wife Gojabai, respondent No. 3 herein). The appellant would, therefore, have the same rights in his father's property, i.e. the property of Nana (respondent No. 1), as Shripati respondent No. 2 would have in the property of Nana respondent No. 1. Raghunath, the appellant would, therefore, be entitled to seek a partition of the property of his parents viz., the said Nana Rama Patil and this is precisely his suit.

8. Mr. Bandivadekar, the learned Counsel for the respondents argued that even if Section 16(J) confers any rights on an illegitimate child the claim by Raghunath the appellant to the property of his father Nana Rama Patil respondent No. 1 could only be made by him after the death of his father, the said Nana Rama Patil respondent No. 1 and not during his life-time. In support of this proposition, Mr. Bandivadekar relied upon a judgment in Dadoo Atmaram Patil alias Savant v. Raghunath Atmaram Patil {Savant) (1978) 82 Bom. L.R. 130.

9. Now, whilst Mr. Bandivadekar has canvassed this argument vehemently, he has been unable to point out anything contained in Section 16 which indicates that the rights conferred by the said section on an illegitimate child could only come into existence on the death of the parents and not during their life time. The argument must hence be negatived. In so far as the citation is concerned, I find Mr. Bandivadekar's reading of the citation is inaccurate. But be that as it may, I have perused the said judgment and find that in the said matter before the learned Judge, no question pertaining to Section 16 of the Hindu Marriage Act seems to have arisen and none canvassed. The citation, therefore, cannot assist Mr, Bandivadekar.

10. Mr. Bandivadekar next contended that even if Section 16 conferred a right on the illegitimate son insofar as the property in the hands of his parents is concerned, such a right can only attach to the self-acquired property of his parents and not to the ancestral property which comes to the hands of his parents. That in this case, it is an admitted position that Rama Aba Patil having died, his property devolved' on his two sons (i.e. Nana Rama Patil respondent No. 1 and Annappa Rama Patil respondent No. 4 herein). That the property was divided between these two persons, half share having come to the hands of Naina respondent No. 1 and the other half having gone to Annappa, respondent No. 4. That insofar as the appellant, who is the illegitimate son is concerned, he would only be entitled to the self-acquired property of Nana respondent No. 1 but not to the property which came to the hands of Nana respondent No. 1 from his father Rama Aba Patil (deceased). In other words, Raghunath the appellant cannot claim a right in a property which was ancestral or coparceinary in character and which has now come to the hands of Nana Rama Patil. In support of his proposition, Mr. Bandivadekar relied upon a decision in Hanmanta Laxman Thorat v. Dhondavvabai Hanmanta Thorat : AIR1977Bom191 .

11. Here again, Mr. Bandivadekar has been unable to point out anything in Section 16 of the Hindu Marriage Act which warrants any such interpretation viz., that an illegitimate child who stands equated with the legitimate child can only claim the rights in the self-acquired property of his parents and not any other property which has become his parents' property. If such a construction as canvassed was to be given, it would defeat the very purpose of the legislation. Section 16 is large in its amplitude and covers every kind of property 'of the parents'. The provisions of Section 16 are clearly calculated to bring about a change, if not so much in the social, but certainly in the economic position of an illegitimate child, and must now be construed so as to impugned as little as possible on the broad sweep of the ameliorative position. It cannot be interpreted in the manner which would rob Sub-section (5) of its efficacy and deprive an illegitimate child of the very right sought to be conferred on him.

12. As regards the citation is concerned, in view of the aforesaid discussion, and in, view of the scope of Section 16 spelt-out in the case of Laxmibai Nagappa Maliwadar v. Limbabai Nagappa Matiwadar (1983) M.LJ. 103, I am, with respect to the learned Judge, unable to subscribe to the view taken in the said case now cited.

13. Mr. Bandivadekar next urged that even, if it be held that the appellant was entitled to such a partition, his share cannot be one-fourth as claimed by him. That Nana Rama Patil respondent No. 1 had received one-half share of his father's property. That this half share would first have to be divided amongst Nana respondent No, 1, Shripati respondent No. 2 and Gojabai respondent No. 3. That it is this one third share that remains in the hands of Nana Rama Patil that would again have to be divided amongst Nana Rama Patil respondent No. 1, Shripati respondent No. 2, Gojabai respondent No. 3, Raghunath the appellant, and his two sisters viz., one being Sonatai and the other Anutai (both being illegitimate) and who are not parties to these proceedings. That in view of this, Raghunath's claim to one-fourth share cannot be sustained.

14. I am unable to accept the contention as canvassed. Mr. Bandivadekar has not invited my attention to anything that requires the property coming to the hands of respondent No. 1 to be first divided amongst respondent No. 1, Shripati respondent No. 2 and Gojabai respondent No. 3 in the first instance. On the other hand, as stated earlier, if by reason of the provisions of Section 16 of the Hindu Marriage Act, an illegitimate son is equated to a legitimate son, atleast in so far as rights to property of his parents are concerned, then in this case, Raghunath the appellant would take the same interest as Shripati respondent No. 2. The first part of Mr. Bandivadekar's argument must hence be rejected. However, the appellant's advocate has conceded that Raghunath has two other sisters who are not parties to the proceedings and if a partition does take place, these two sisters would be entitled! to shares in the property. If this be so, Raghunath's share would be one-sixth and not one-fourth as claimed.

15. Mr. Bandivadekar lastly argued that Raghunath the appellant had filed a suit as a minor and there is no evidence to show that the partition sought is in the interest of the minor and he would hence not be entitled to any relief. The question no longer survives, as admittedly, Raghunath has now attained majority.

16. In the result, the order and decree of the lower Courts are set aside. The appeal succeeds. The share of the appellant is declared to be one-sixth in the property of his father Nana Rama Patil, respondent No. 1. There will be the usual preliminary decree for partition. The respondent will pay the costs all throughout.


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