KALLIANI AMMA Vs. DEVI

JUDGEMENT

(1.) THESE appeals arise out of three connected suits O. S. Nos. 38/1976, 99/1977 and 39/1976 tried together by the lower court.

(2.) ALL the three suits relate to the assets left behind by Parayankandiyil Kanhirakunnath Kurungodan Raman Nair. He died on 9-1-1975. O. S. 38/1976 is by the children of Raman Nair in his first wife Ammu Amma. The defendants in that suit are the second wife and children of Raman Nair. The plaintiffs in O. S. 38/1976 seek recovery of possession of five items of properties on the strength of the plaintiff's title. Recovery is sought from the second wife and children of Raman Nair.

(3.) LEARNED counsel for the appellants Sri. R. Bhaskaran has urged only one point before us and that is that the second wife and children are also the legal heirs of Raman Nair. According to learned counsel S. 16 of the Hindu Marriage Act confers legitimacy on the children born in the second wife and they are also the legal heirs of deceased Raman Nair. The relevant clauses of S. 16 are extracted below: " Legitimacy of children of void and voidable marriages-- (1) Notwithstanding that a marriage is null and void under S. 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. ** ** ** ** ** (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under S. 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents. " The legitimacy conferred by sub-section (1) is on the children born of a marriage null and void under S. 11. S. 11 applies only to marriages solemnized after the commencement of the Hindu Marriage Act and does not relate to marriages solemnized prior to the said Act. S. 11 reads: " Void marriages -- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes anyone of the conditions specified in clauses (i), (iv) and (v) of S. 5. " Clause (i) of S. 5 invalidates a marriage if either party has a spouse living at the time of the marriage. In the present case, however, there is no dispute that the second marriage of Raman Nair was prior to the commencement of the Hindu Marriage Act and it was at a time when his first wife Ammu Amma was living. The invalidity of the second marriage is not for the reason of S. 11 which would apply only to marriages solemnized after the commencement of the Act. The second marriage of Raman Nair was at a time when the Madras Marumakkathayam Act, 1933 was in force. S. 5 of the said Act provided that during the continuance of a prior marriage which is valid under S. 4, any marriage contracted by either of the parties thereto on or after the date on which the said Act came into force shall be void. The invalidity of the second marriage of Raman Nair was therefore for the reason of violation of S. 5 of the Madras Marumakkathayam Act. S. 16 of the Hindu Marriage Act does not purport to confer legitimacy on children born of a marriage invalid under the law in force prior to the commencement of the Act.