Holding

Children of a void or voidable marriage are legitimate heirs and entitled to a share in the notional partition of the parent’s property, and the admissions in the mortgage deed establish their status as such.

Summary

The Supreme Court examined a partition suit concerning agricultural lands of the late Muthusamy Gounder, where the trial and high courts had rejected the claim of certain parties as coparceners on the ground that the marriage of their mother to the propositus was not proved. The appellants argued that, despite the alleged void or voidable marriage, the children should be treated as legitimate heirs based on statutory provisions and admissions in a mortgage deed. The Court applied Sections 17 and 18 of the Evidence Act, 1872 to deem the mortgage deed an admission that the deceased treated the appellants as his sons, thereby establishing their status as heirs. Relying on the ratio in Revanasiddappa v. Mallikarjun, the Court held that children of void or voidable marriages are entitled to a share in the parent’s notional partition. Consequently, the lower courts' judgments were set aside and a preliminary decree of partition was passed allocating equal shares to the children of Muthusamy Gounder.

Issues considered

Whether children of a void or voidable marriage are entitled to a share in the partition of the propositus’s property
Whether the mortgage deed and related documents constitute a valid admission under Sections 17 and 18 of the Evidence Act, 1872
Whether the trial and appellate courts erred in rejecting the claim of coparcenary status for the appellants

Legislation cited

Evidence Act, 1872s. 17, s. 18

Subjects

PartitionFactum of marriageVoid or voidable marriageStatus of wifeStatus of the children through the extended familyCoparcenersAdmission by recordEntitlement of share to the children of void and voidable marriagesPreliminary decree of partitionNotional partition

Judgment

[2024] 1 S.C.R. 413 : 2024 INSC 47

Raja Gounder and Others
v.
M. Sengodan and Others
(Civil Appeal No. 600 of 2024)
19 January 2024
[M.M. Sundresh and S.V.N. Bhatti*, JJ.]

Issue for Consideration
A civil suit was filed by respondent Nos. 1 and 2 for partition
and separate possession of plaint schedule properties. During
the pendency of the suit, appellants were impleaded. The Trial
Court recorded a categorical finding that appellant no.2 and
respondent no.2 were not wives of MG, propositus of parties, and
consequently, the status of the children through the extended family
as coparceners was rejected. The issue for consideration is as to
entitlement of share to the children of void or voidable marriage.

Headnotes
Partition – Partition and separate possession of plaint schedule
properties – The Trial Court held that respondent No. 4 herein
admittedly is the first and legally wedded wife of MG – Appellant
No. 2 and respondent No. 2 did not produce evidence to prove
the factum of the marriage with MG – The evidence adduced
by the appellants or respondent Nos. 1 and 2, does not inspire
the confidence of the Court to accord to them the status as
wives of MG – The Trial Court records a categorical finding
that appellant No. 2 and respondent No. 2 are not the wives
of MG, and consequently, the status of the children through
the extended family as coparceners was rejected – High Court
accepted the view of the Trial Court – Propriety:
Held: A mere perusal of the preface to Ex. B-6, mortgage deed,
would show that MG treated appellant No. 1, respondent No. 1
and respondent No. 3 as his sons – The document was executed
for himself and on behalf of his minor sons – The statement
was made by MG during the subsistence of his interest in the
property mortgaged – The appellants also rely on the patta
dated 27.04.1984 (Ex. B-3) standing in the name of MG and

* Author
414 [2024] 1 S.C.R.

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his sons; the voters lists, viz., Exs. B-4 and B-5, to show that
MG and his sons lived as a family – By applying ss.17 and 18
of the Evidence Act, it is convincing that MG 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 s.18 of the Evidence 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 MG – At
this juncture, the status derived through an admission in Ex.
B-3 vis-à-vis appellant No.1 as a natural corollary could be
extended to appellant No.3 as a child/daughter of MG – This is
an inescapable consequential conclusion which the Court has to
record – 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 MG are void or voidable, denying the
children of MG a share in the property of notional partitioned in
favour of MG, is unsustainable in law and fact – Also, applying the
principle laid down in Revanasiddappa and another v. Mallikarjun
and others on entitlement of share to the children of void and
voidable marriages, the judgments under appeal are set aside.
[Paras 15.1, 16, 17, 18]
Evidence Act, 1872 – Admission:
Held: Admission is a conscious and deliberate act and not
something that could be inferred – An admission could be a positive
act of acknowledgement or confession – To constitute an admission,
one of the requirements is a voluntary acknowledgement through
a statement of the existence of certain facts during the judicial or
quasi-judicial proceedings, which conclude as true or valid the
allegations made in the proceedings or in the notice – The formal act
of acknowledgement during the proceedings waives or dispenses
with the production of evidence by the contesting party – The
admission concedes, for the purpose of litigation, the proposition
of fact claimed by the opponents as true – An admission is also
the best evidence the opposite party can rely upon, and though
inconclusive, is decisive of the matter unless successfully withdrawn
or proved erroneous by the other side. [Para 13.1]
[2024] 1 S.C.R. 415

Raja Gounder and Others v. M. Sengodan and Others

Case Law Cited
Revanasiddappa and another v. Mallikarjun and others
(2023) 10 SCC 1 – relied on.
Gopal Das and another v. Sri Thakurji and others AIR
1943 PC 83 – referred to.
Nirmala v. Rukminibai AIR 1994 Kar 247 – approved.

List of Acts
Evidence Act, 1872 – ss. 17 and 18.

List of Keywords
Partition; Factum of marriage; Void or voidable marriage;
Status of wife; Status of the children through the extended
family; Coparceners; Admission by record; Entitlement
of share to the children of void and voidable marriages;
Preliminary decree of partition; Notional partition.

Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.600 of 2024.
From the Judgment and Order dated 26.09.2006 of the High Court
of Judicature at Madras in AS No.929 of 1991.

Appearances for Parties
Ms. N. S. Nappinai, V. Balaji, A. Krishna Kumar, R. Mohan,
Nizamuddin, C. Kannan, Rakesh K. Sharma, Advs. for the Appellants.
Vinodh Kanna B., K. K. S. Krishnaraj, T. R. B. Sivakumar, Ms. Shagufa
Khan, Advs. for the Respondents.

Judgment / Order of the Supreme Court
Judgment
S.V.N. Bhatti, J.
1. Leave granted.
2. The Defendant Nos. 3 to 5 in O.S. No. 357 of 1985 before the
Court of the Subordinate Judge, Sankari, Coimbatore District, Tamil
Nadu, are the Appellants in the Civil Appeal. The Appellants assail
the judgment and decree of the Trial Court and the High Court of
416 [2024] 1 S.C.R.

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Judicature at Madras, dismissing the suit filed by Respondent No.
1 and Respondent No. 2 for partition and separate possession of
the plaint schedule properties.
I. FACTUAL BACKGROUND
3. A genealogy is prefaced to appreciate the relationship between the
parties: -
M.S. Muthusamy Gounder
(Died in 1982)

Ramayee (P-2/R-2) Ammasi Ammal (D-2/R-4)
Chinnammal (D-4/A-2)

Raja Gounder (D- Gangammal (D- M. Sengodan Subramani Shaktivel(Dead)
3/A-1) 5/A-3) (P-1/R-1) (D-1/R-3) [Son]
[Son] [Daughter] [Son] [Son]

4. Respondent Nos. 1 and 2 in this Civil Appeal were the Plaintiffs in O.S.
No. 357 of 1985 before the Trial Court filed for partition and separate
possession of plaint schedule properties. The plaint schedule consists
of three items of agricultural land in Amani, Kliyanoor, Agraharam
and Pallipayam villages of Tiruchengode Taluk. The suit was filed
against Respondent Nos. 3 and 4 herein. During the pendency of the
suit, the Appellants filed I.A. No. 1019 of 1987 and were impleaded
by the Trial Court as Defendant Nos. 3, 4 and 5.
5. Muthusamy Gounder is the propositus of the parties to the suit and
the claim for partition arose on his demise in the year 1982. The plaint
averments are that Respondent No. 1 is the son of the propositus
through Respondent No. 2/Ramayee. Respondent No. 3 is also the
son of the propositus through Respondent No. 4/Ammasi Ammal.
The marriage of Respondent No. 2 with the propositus is alleged
to have happened in the early 1950s. It is averred in the plaint that
Respondent Nos. 1 to 4 lived together and had a common kitchen
during the lifetime of Muthusamy Gounder. Respondent Nos. 1 and 2
claim that a coparcenary/joint Hindu family existed, and Respondent
Nos. 1 to 3 inherited the plaint schedule properties. The plaint
schedule properties are treated as joint family/ancestral properties.
[2024] 1 S.C.R. 417

Raja Gounder and Others v. M. Sengodan and Others

The demand of Respondent Nos. 1 and 2 through legal notice dated
21.06.1984 did not result in a reply from Respondent Nos. 3 and 4,
or result in partition, the suit for partition of plaint schedule into three
equal shares was filed and allot to Respondent Nos. 1 and 3, each
one such share. The other share notionally allotted to Muthusamy
Gounder, and since he died in 1982, is divided and allotted to
Respondent Nos. 1 to 4 in accordance with law.
6. We have specifically referred to the share demanded by Respondent
Nos. 1 and 2 in O.S. No. 357 of 1985 because the shares of the parties
resulted in change with the impleadment of Appellants. Respondent
Nos. 3 and 4 filed written statements denying the factum of marriage
between Respondent No. 2 and Muthusamy Gounder, stating that
Respondent No. 1 alone is a member of the Hindu Undivided Family
(HUF) of Muthusamy Gounder.
6.1 As a natural result of the denial of marriage and relationship
between Muthusamy Gounder and Respondent No. 2, the other
averments in the plaint, namely, the existence of coparcenary
and ancestral properties; the rights of Respondent Nos. 1 and 2
for partition, are specifically denied. The Appellants as Defendant
Nos. 3 to 5 claimed that Appellant Nos. 1 and 3 are the son and
daughter, respectively, of Muthusamy Gounder through Appellant
No. 2/Chinnammal. The Appellants further averred that upon the
demise of the propositus, the parties to the suit have inherited
the plaint schedule properties as the legal heirs of the late
Muthusamy Gounder. The Appellants and other legal heirs of
Muthusamy Gounder were in joint possession and enjoyment of
the plaint schedule properties. Therefore, the Appellants, along
with other legal heirs/successors of Muthusamy Gounder, pray
for partition of the coparcenary headed by Muthusamy Gounder.
The Trial Court considered the following issues: -
1. Whether the Plaintiffs are entitled to the reliefs claimed
in the suit?
2. Whether Defendant Nos. 1 to 5 are also entitled to
shares as legal heirs of the deceased Muthusamy
Gounder in his estate?
3. To what relief?
418 [2024] 1 S.C.R.

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7. The oral evidence of PW1 to 3 and DW1 to 5 was adduced. Ex. A-1
to A-10 and Ex. B-1 to B-10 were marked by the parties.
8. The Trial Court examined the claim for partition from the perspective
of the existence of a coparcenary/joint Hindu family and that the
extended family of Muthusamy Gounder through Respondent No.
2 and Appellant No. 2 as wives of Muthusamy Gounder. In fine, the
Trial Court examined the existence of coparcenary with Respondent
Nos. 1 and 2 and Appellant No. 1, and the status of marriage of
Respondent No. 2 and Appellant No. 2 with Muthusamy Gounder,
and a coparcenary existed with the extended family members. The
Trial Court held that Respondent No. 4 herein admittedly is the first
and legally wedded wife of Muthusamy Gounder. Appellant No. 2
and Respondent No. 2 did not produce evidence to prove the factum
of the marriage with Muthusamy Gounder. The evidence adduced
by the Appellants or Respondent Nos. 1 and 2, does not inspire the
confidence of the Court to accord to them the status as wives of
Muthusamy Gounder. The Trial Court records a categorical finding
that Appellant No. 2 and Respondent No. 2 are not the wives of
Muthusamy Gounder, and consequently, the status of the children
through the extended family as coparceners was rejected.
9. Appeal Nos. 394 and 929 of 1991 were filed before the High Court of
Judicature at Madras by Respondent Nos. 1 and 2 and the Appellants
herein. Through the impugned judgment, the appeals filed at the
instance of extended family members of Muthusamy Gounder, stood
dismissed. The High Court, in all particulars, accepted the view of the
Trial Court on the status of marriage claimed by Appellant No. 2 and
Respondent No. 2 as not established by the parties and the claim
for partition on the footing of the existence of the coparcenary with
the parties of the suit would not arise. The appeals stood dismissed
by the common impugned judgment dated 26.09.2006.
9.1 Hence, the Civil Appeal at the instance of the Appellants in
Appeal No. 929 of 1991.
II. SUBMISSIONS
We have heard the Counsel appearing for the parties.
10. Advocate N.S. Nappinai, appearing for the Appellants, accepting
the findings of fact recorded by the Courts below on the status of
Respondent No. 2 and Appellant No. 2 as part of the extended
[2024] 1 S.C.R. 419

Raja Gounder and Others v. M. Sengodan and Others

family of Muthusamy Gounder, argues a substantive point viz., both
the Courts below fell in a serious flaw in not moulding the relief
from admitted circumstances/evidence particularly when the suit
filed is for partition and separate possession of the plaint schedule
properties. It is argued that the Appellants and Respondent Nos. 1
and 2, assuming failed in establishing the status of a valid marriage
of Appellant No. 2 and Respondent No. 2 with Muthusamy Gounder,
still the entitlement of a share as sons/children of Muthusamy Gounder
through the extended family of Muthusamy Gounder should have
been considered. The documentary evidence shows that Muthusamy
Gounder treated Appellant No. 1, Respondent No. 1 and Respondent
No. 3 as his sons. Therefore, Appellant No. 1 and likewise Respondent
No. 1 even are children of Muthusamy Gounder through a void or
voidable marriage, still the children of Muthusamy Gounder through
extended family are entitled to a share in the half share of Muthusamy
Gounder in the schedule properties. The Counsel places reliance
on Revanasiddappa and another v. Mallikarjun and others1, for
the proposition that the children of Appellant No. 2 and Respondent
No. 2 will be entitled to a share in the property, which would have
been allotted to Muthusamy Gounder in the notional partition of plaint
schedule properties. The Counsel places reliance on Ex. B-6, a
registered mortgage deed dated 01.11.1976, executed by Muthusamy
Gounder in favour of Karuppana Gounder and on Ex. B-3 dated
27.04.1984, a joint patta in favour of Muthusamy Gounder and all
his three sons. The unrebutted documentary evidence in Exs. B-3
and B-6 constitute, firstly, an admission in the form of a substantive
piece of evidence by Muthusamy Gounder on the status of Appellant
No. 1 and Respondent No. 1 as his sons, coupled with corroborative
documentary evidence in Ex. B-4 and B-5, electoral rolls. Respondent
No. 3 claims through the common propositus, i.e., Muthusamy
Gounder, and these admissions are valid in law on Respondent
No. 3. This is the best evidence from none other than the common
propositus. The Appellants and Respondent No. 1 are entitled to a
share in the share allotted to Muthusamy Gounder. Therefore, the
Counsel argues that given the settled legal position on the status of
sons of Muthusamy Gounder through Appellant No. 2 and Respondent
No. 2, a decree for partition though not as prayed for, is passed, but
a preliminary decree of partition firstly on plaint schedule properties

1 (2023) 10 SCC 1
420 [2024] 1 S.C.R.

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between Muthusamy Gounder and Respondent No. 3 is made, and
a further decree, distributing the share of Muthusamy Gounder to
Appellant Nos. 1 and 3 and Respondent Nos. 1 and 3 is rendered.
11. Advocate Vinodh Kanna B., appearing for Respondent Nos. 3 and 4,
contends that the findings of fact recorded by the Courts below do
not warrant reconsideration of evidence by this Court under Article
136 of the Constitution of India, and alternatively, the evidence is
wanting on the status of Appellant Nos. 1 and 3 and Respondent No.
1 as the children of Muthusamy Gounder. The alternative argument
now canvassed before the Supreme Court is not available in the
circumstances of the case or from the material on record. The proof
of status as children of Muthusamy Gounder is a condition precedent
for applying the ratio of Revanasiddappa (supra), and there is no
evidence on this crucial aspect to mould the relief. Therefore, the
judgements impugned are sustainable in law and fact. He prays for
the dismissal of the Civil Appeal.
III. ANALYSIS
12. We have perused the record and noted the rival contentions
canvassed by the Counsel, briefly reiterated in this Civil Appeal, the
claim for partition in the share notionally allotted to late Muthusamy
Gounder is pressed for. Thus, it presupposes the Appellants do not
press the claim as coparceners of the family of Muthusamy Gounder;
however, from the material on record, they claim a share from the
share as the children of Muthusamy Gounder. The claim for a share
depends on the application and appreciation of Exs. B-3 to B-6.
13. Sections 17 and 18 of the Indian Evidence Act, 1872 (“the Act”)
defines “admission” and “admission by party to proceeding or his
agent”. Section 17 of the Act reads thus: -
“17. Admission defined admission is a statement, oral
or documentary, which suggests any inference as to any
fact in issue or relevant fact, and which is made by any
of the persons, and under the circumstances, hereinafter
mentioned.”
13.1 Admission is a conscious and deliberate act and not something
that could be inferred. An admission could be a positive act of
acknowledgement or confession. To constitute an admission,
one of the requirements is a voluntary acknowledgement through
[2024] 1 S.C.R. 421

Raja Gounder and Others v. M. Sengodan and Others

a statement of the existence of certain facts during the judicial
or quasi-judicial proceedings, which conclude as true or valid
the allegations made in the proceedings or in the notice. The
formal act of acknowledgement during the proceedings waives
or dispenses with the production of evidence by the contesting
party. The admission concedes, for the purpose of litigation,
the proposition of fact claimed by the opponents as true. An
admission is also the best evidence the opposite party can rely
upon, and though inconclusive, is decisive of the matter unless
successfully withdrawn or proved erroneous by the other side.
13.2 The above being the position, pithily stated on what constitutes
an admission, Section 17 of the Act does not come in aid to
answer or appreciate the documentary evidence marked in the
suit. Therefore, Section 17 has to be read along with Section
18 of the Act, which reads thus:-
“18. Admission by party to proceeding or
his agent.––Statements made by a party to the
proceeding, or by an agent to any such party, whom
the Court regards, under the circumstances of the
case, as expressly or impliedly authorised by him to
make them, are admissions.
by suitor in representative character.––Statements
made by parties to suits suing or sued in a
representative character, are not admissions, unless
they were made while the party making them held
that character.
Statements made by ––
(1) by party interested in subject-matter.––
persons who have any proprietary or pecuniary
interest in the subject-matter of the proceeding,
and who make the statement in their character
of persons so interested, or
(2) by person from whom interest derived.––
persons from whom the parties to the suit have
derived their interest in the subject-matter of the
suit, are admissions, if they are made during
the continuance of the interest of the persons
making the statements..”
422 [2024] 1 S.C.R.

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13.3 Section 18 of the Act deals with:
(i) admission by a party to a proceeding,
(ii) his agent,
(iii) by a suitor in a representative character,
(iv) statements made by a party in trusted subject matter,
(v) statements made by a person from whom interest is
derived.
The qualifying circumstances to merit as admission are subject to
satisfying the requirements.
14. The Privy Council in Gopal Das and another v. Sri Thakurji and
others2, 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. Section 18 of the Act lays down the conditions and the
requirements satisfied for applying to a statement as an admission.
We keep in our perspective Sections 17 and 18 of the Act while
appreciating Exs. B-3 and B-6.
15. The Appellants rely on Exs. B-3 to B-6 to evidence that Muthusamy
Gounder treated Appellant No. 1, Respondent No. 1 and Respondent
No. 3 as his sons. Now let us examine whether these exhibits, firstly,
contain an admission on the relevant fact in issue and secondly,
whether they satisfy the requirements under Section 18 of the Act. Ex.
B-6 is the registered mortgage deed dated 01.11.1976 executed by
Muthusamy Gounder/propositus in favour of one Karuppana Gounder.
Sy. No. 66 of Pallipayam, Agraharam Village was the mortgage deed
executed by Muthusamy Gounder in favour of Karuppana Gounder.
The mortgaged property is one of the items in the schedule in O.S.
No. 357 of 1985. Muthusamy Gounder in Ex. B-6 stated as follows: -
“Mortgage deed executed in favour of Karuppannna
Gounder, son of…Vellaya Gounder, residing at Vaagaikkadu,
Cusba Elandaikkuttai Village, Thiruchengodu Taluk, Salem
District.

2 AIR 1943 PC 83
[2024] 1 S.C.R. 423

Raja Gounder and Others v. M. Sengodan and Others

By Muthusamy Gounder (1) son of Sengoda Gounder,
residing at Malagoundenpalayam, Kaliyanoor Ayan Village,
- Do - Taluk, - Do - District, Guardian and father of the
minors Subramani (2) Raja Gounder (3) and Sengodam (4),
for himself and on behalf of the minors Nos. 2 ,3 and 4.”
15.1 A mere perusal of the preface to Ex. B-6, mortgage deed,
would show that Muthusamy Gounder treated Appellant No.
1, Respondent No. 1 and Respondent No. 3 as his sons. The
document was executed for himself and on behalf of his minor
sons. The statement is made by Muthusamy Gounder during
the subsistence of his interest in the property mortgaged.
Respondent No. 3 definitely claims through Muthusamy Gounder
for the half share notionally partitioned in favour of Muthusamy
Gounder. The Appellants also rely on the patta dated 27.04.1984
(Ex. B-3) standing in the name of Muthusamy Gounder and
his sons; the voters lists, viz., Exs. B-4 and B-5, to show that
Muthusamy Gounder and his sons lived as a family. By applying
Sections 17 and 18 of the 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. At this juncture, we
notice that the status derived through an admission in Ex. B-3
vis-à-vis Appellant No.1 as a natural corollary could be extended
to Appellant No. 3 as a child/daughter of Muthusamy Gounder.
This is an inescapable consequential conclusion which the
Court has to record.
15.2 We make a useful reference to the judgement reported in
Nirmala v. Rukminibai3. The Division Bench of the High Court
of Karnataka considered a dispute nearer to the circumstances
with the case on hand. The decision made in this case decided

3 AIR 1994 Kar 247
424 [2024] 1 S.C.R.

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the status of inheritance of one Narayanarao among the children
born out of his second marriage. The Plaintiffs were the first wife
and daughter of Narayanarao, who filed a suit for possession of
the suit properties in the estate of Narayanarao, which devolved
on the Defendants, i.e., Narayanarao’s second wife and children.
The Trial Court decreed the suit in the Plaintiffs’ favour, against
which the Defendants filed an appeal before the High Court of
Karnataka. The Defendants relied on Section 18 of the Act to
point out Narayanarao’s admission that he indeed treated the
Defendants as his legally wedded wife and legitimate children.
Accepting this argument, the High Court allowed the appeal
holding that where the children from the first wife brought a suit
for possession of their father’s property disputing the second
marriage of their father, the admission of their deceased father
that the defendant, as his legally wedded wife, was binding
on the Plaintiffs. We are in agreement with the High Court of
Karnataka’s consideration of the scope of the binding nature
of admission by a common ancestor in a matter of inheritance
under Section 18 of the Act.
16. We are of the view that the statement in Ex. B-6 is a clear admission
of Muthusamy Gounder as to how he treated Appellant No. 1,
Respondent No. 1 and Respondent No. 3 as his sons. Respondent No.
3 is claiming through Muthusamy Gounder, the common predecessor
in interest; therefore, the admission is binding on Respondent No. 3
as well. Hence, by treating Appellant Nos. 1 and 3 and Respondent
Nos. 1 and 3 as successors in the interest of Muthusamy Gounder,
the shares are worked out. 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. Appellant No. 3 claims to be the
daughter of Muthusamy Gounder, and the law, as applicable to the
separate share of Muthusamy Gounder, grants an equal share to
the daughter along with the sons of Muthusamy Gounder.
17. The above discussion takes us to point out a common infirmity in
the examination of issues by the Trial and the Appellate Courts.
The suit is one for partition, and the shares are dependent upon the
[2024] 1 S.C.R. 425

Raja Gounder and Others v. M. Sengodan and Others

nature of status and the time at which the partition is decreed. It is
axiomatic that the shares fluctuate not only with the happening of
events in the family but also with the circumstances established by
the parties to the lis. In the present case, the claim as a coparcenary
is unacceptable for want of evidence on the factum of the marriage
of Muthusamy Gounder with Appellant No. 2 and Respondent No. 2;
the courts below ought to have considered the relief from admitted
circumstances on record. Hence, the argument of Respondent No. 3
that the status of Appellant Nos. 1 and 3; and Respondent No. 1 as
the children of Muthusamy Gounder is without evidence is untenable
and rejected accordingly. At this stage, it is apposite to refer to the
conclusions laid down in Revanasiddappa (supra):-
“81. We now formulate our conclusions in the following
terms:
81.1. In terms of sub-section (1) of Section 16, a child
of a marriage which is null and void under Section 11 is
statutorily conferred with legitimacy irrespective of whether:
(i) such a child is born before or after the commencement
of the amending Act, 1976; (ii) a decree of nullity is granted
in respect of that marriage under the Act and the marriage
is held to be void otherwise than on a petition under the
enactment;
81.2. In terms of sub-section (2) of Section 16 where
a voidable marriage has been annulled by a decree of
nullity under Section 12, a child “begotten or conceived”
before the decree has been made, is deemed to be their
legitimate child notwithstanding the decree, if the child
would have been legitimate to the parties to the marriage
if a decree of dissolution had been passed instead of a
decree of nullity;
81.3. While conferring legitimacy in terms of sub-section
(1) on a child born from a void marriage and under sub-
section (2) to a child born from a voidable marriage which
has been annulled, the legislature has stipulated in sub-
section (3) of Section 16 that such a child will have rights
to or in the property of the parents and not in the property
of any other person;
426 [2024] 1 S.C.R.

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81.4. While construing the provisions of Section 3(j) of the
HSA, 1956 including the proviso, the legitimacy which is
conferred by Section 16 of the HMA, 1955 on a child born
from a void or, as the case may be, voidable marriage has
to be read into the provisions of the HSA, 1956. In other
words, a child who is legitimate under sub-section (1) or
sub-section (2) of Section 16 of the HMA would, for the
purposes of Section 3(j) of the HSA, 1956, fall within the
ambit of the explanation “related by legitimate kinship”
and cannot be regarded as an “illegitimate child” for the
purposes of the proviso;
81.5. Section 6 of the HSA, 1956 continues to recognise
the institution of a joint Hindu family governed by the
Mitakshara law and the concepts of a coparcener, the
acquisition of an interest as a coparcener by birth and
rights in coparcenary property. By the substitution of
Section 6, equal rights have been granted to daughters,
in the same manner as sons as indicated by sub-section
(1) of Section 6;
81.6. Section 6 of the HSA, 1956 provides for the devolution
of interest in coparcenary property. Prior to the substitution
of Section 6 with effect from 9-9-2005 by the amending
Act of 2005, Section 6 stipulated the devolution of interest
in a Mitakshara coparcenary property of a male Hindu by
survivorship on the surviving members of the coparcenary.
The exception to devolution by survivorship was where the
deceased had left surviving a female relative specified in
Class I of the Schedule or a male relative in Class I claiming
through a female relative, in which event the interest of
the deceased in a Mitakshara coparcenary property would
devolve by testamentary or intestate succession and not
by survivorship. In terms of sub-section (3) of Section 6
as amended, on a Hindu dying after the commencement
of the amending Act of 2005 his interest in the property of
a joint Hindu family governed by the Mitakshara law will
devolve by testamentary or intestate succession, as the
case may be, under the enactment and not by survivorship.
As a consequence of the substitution of Section 6, the
[2024] 1 S.C.R. 427

Raja Gounder and Others v. M. Sengodan and Others

rule of devolution by testamentary or intestate succession
of the interest of a deceased Hindu in the property of a
joint Hindu family governed by Mitakshara law has been
made the norm;
81.7. Section 8 of the HSA, 1956 provides general rules
of succession for the devolution of the property of a
male Hindu dying intestate. Section 10 provides for the
distribution of the property among heirs of Class I of
the Schedule. Section 15 stipulates the general rules of
succession in the case of female Hindus dying intestate.
Section 16 provides for the order of succession and the
distribution among heirs of a female Hindu;
81.8. While providing for the devolution of the interest of
a Hindu in the property of a joint Hindu family governed
by Mitakshara law, dying after the commencement of
the amending Act of 2005 by testamentary or intestate
succession, Section 6(3) lays down a legal fiction, namely,
that “the coparcenary property shall be deemed to have
been divided as if a partition had taken place”. According
to the Explanation, the interest of a Hindu Mitakshara
coparcener is deemed to be the share in the property that
would have been allotted to him if a partition of the property
has taken place immediately before his death irrespective
of whether or not he is entitled to claim partition;
81.9. For the purpose of ascertaining the interest of a
deceased Hindu Mitakshara coparcener, the law mandates
the assumption of a state of affairs immediately prior to
the death of the coparcener, namely, a partition of the
coparcenary property between the deceased and other
members of the coparcenary. Once the share of the
deceased in property that would have been allotted to him
if a partition had taken place immediately before his death
is ascertained, his heirs including the children who have
been conferred with legitimacy under Section 16 of the
HMA, 1955, will be entitled to their share in the property
which would have been allotted to the deceased upon the
notional partition, if it had taken place; and
428 [2024] 1 S.C.R.

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81.10. The provisions of the HSA, 1956 have to be
harmonised with the mandate in Section 16(3) of the HMA,
1955 which indicates that a child who is conferred with
legitimacy under sub-sections (1) and (2) will not be entitled
to rights in or to the property of any person other than the
parents. The property of the parent, where the parent had
an interest in the property of a joint Hindu family governed
under the Mitakshara law has to be ascertained in terms of
the Explanation to sub-section (3), as interpreted above.”
18. 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.
19. Hence, a preliminary decree of partition, as indicated above, is
passed. The appeal is allowed accordingly. No costs.

Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.