Children of Void or Voidable Marriages Inherit Parent's Share on Notional Partition, Not as Coparceners: Supreme Court

Sections 16(1) and 16(2) of the Hindu Marriage Act make children of void marriages, and of voidable marriages annulled by decree, legitimate, while Section 16(3) confines their rights to the property of the parents (para 1). Two-Judge Benches, starting with Jinia Keotin, held that such children could claim self-acquired but not ancestral or coparcenary property (para 2). In Revanasiddappa v Mallikarjun a two-Judge Bench doubted those decisions, treating such children as on par with other legitimate children for both kinds of property, and referred the question (para 3). The issue was whether such a child is entitled to the parent's coparcenary property or only to separate property (para 17).

Section 16(3) circumscribes the property rights of a child conferred with legitimacy, and such a child does not ipso facto become a coparcener in the Hindu Mitakshara joint family (para 50). Since the 2005 amendment, a deceased coparcener's interest devolves by testamentary or intestate succession, and the Explanation to Section 6(3) fixes that interest by a notional partition immediately before death (paras 36, 50). The share so ascertained is distributed among the heirs under Section 10, and the child conferred with legitimacy takes a share in it (para 45). Legitimacy under Section 16 must be read into Section 3(1)(j) of the Succession Act, so such a child is related by legitimate kinship and is not an illegitimate child for the proviso (para 54). The referring judgment's statement that these children are on par with other legitimate children was made in the context of the parents' property, not the property of third persons (para 53). The reference was answered only for joint families governed by Mitakshara law (para 55).