Section 6 Hindu Succession Act | Children of Void Marriage Entitled to Coparcenary Share Despite Collusive Decree: Bombay HC

The Bombay High Court has delivered a significant judgment on the rights of children born from a void marriage under Hindu law. In a second appeal concerning partition of ancestral property, the Court held that children of a void marriage are entitled to a share in the coparcenary property, aligning with the Supreme Court's ruling in Revansidappa v. Mallikarjun. The judgment clarifies the legal status of such children and the binding nature of admissions in previous decrees on parties to the suit.

Background & Facts

The Dispute

The dispute revolves around the partition of ancestral properties between the original plaintiff, Rukmin W/o Bhima Gaikwad, and the defendants, who are descendants of Pandurang Keshav Kokate. The properties in question are agricultural lands admeasuring 3 acres 19 gunthas from Gat No. 86/B and 3 hectares 70 gunthas from Gat No. 87/2B. The plaintiff, Rukmin, is the daughter of Pandurang from his first marriage, while the defendants include Pandurang's second wife, Kalawati, and their children.

Key Facts

• Pandurang Keshav Kokate was married to Kadubai (first wife) and had a daughter, Rukmin (plaintiff)
• During the subsistence of the first marriage, Pandurang married Kalawati (defendant No. 3), and they had three children: Ashok, Bhagwan, and Daivshala (defendants No. 4, 5, and 6)
• The plaintiff filed a suit (RCS No. 284/2005) for partition of the suit properties, claiming they were ancestral joint family properties
• The defendants resisted the suit, contending that the properties were self-acquired and that a previous consent decree in RCS No. 102/2005 had already partitioned the properties
• The plaintiff argued that the decree in RCS No. 102/2005 was collusive and did not bind her as she was not a party to that suit

Procedural History

• 15.03.2005: Plaintiff filed RCS No. 284/2005 for partition of suit properties
• 19.12.2009: Trial Court dismissed the suit, holding that the plaintiff failed to prove the properties were joint family properties
• 21.01.2020: First Appellate Court allowed the appeal (RCA No. 41/2017), setting aside the Trial Court's decree and holding that the properties were ancestral
• 22.10.2021: Bombay High Court admitted the second appeal (SA No. 86/2021) and framed substantial questions of law
• 15.06.2026: High Court delivered the judgment, dismissing the second appeal

Relief Sought

The plaintiff sought partition of the suit properties, asserting her right as a coparcener in the ancestral properties. The defendants sought to uphold the Trial Court's decree, contending that the properties were self-acquired and that the previous decree in RCS No. 102/2005 barred the plaintiff's claim.

The Legal Issue

The Court framed the following substantial questions of law:

1. Whether the suit properties were the self-acquired properties of defendant No. 1?
2. Whether defendant Nos. 4 to 6 have a right and share in the suit properties, given that they are children of the second wife of deceased Pandurang?
3. What is the effect of the decree in Regular Civil Suit No. 102/2005 on the parties?
4. What are the shares of the parties in the suit properties?

Arguments Presented

For the Appellants/Original Defendants

The appellants relied on Basant Singh v. Janki Singh, AIR 1967 SC 341, to argue that admissions in previous proceedings are not conclusive and that evidence could be led to prove otherwise. They contended that the properties were self-acquired and that the previous decree in RCS No. 102/2005 did not bind the plaintiff, who was not a party to that suit. They also argued that the First Appellate Court erred in determining the shares of the parties.

For the Respondent/Original Plaintiff

The respondent supported the impugned judgment, arguing that the defendants had obtained a consent decree in RCS No. 102/2005 by admitting that the properties were ancestral. They contended that the defendants were estopped from taking a contrary plea in the present proceedings. The respondent also relied on mutation entries and admissions in the previous suit to prove that the properties were ancestral.

The Court's Analysis

The Court addressed the first substantial question of law by examining the admissions made by the defendants in RCS No. 102/2005. The First Appellate Court had observed that the defendants admitted in their plaint that the suit properties were ancestral. The High Court held that once such an admission culminated in a consent decree, it was binding on the parties to that decree. The Court distinguished Basant Singh on the ground that it dealt with an admission of fact, not a decree based on such admission. The Court ruled that the defendants could not retract their admission and claim that the properties were self-acquired.

"Once it is admitted that the Defendants in the previous proceedings bearing RCS No. 102/2005, have admitted that the properties being ancestral properties and have obtained consent decree, it would not be open for the Defendants to claim and substantiate too in the present proceedings, that the suit properties are not ancestral properties but are self-acquired properties of Defendant No. 1."

Regarding the second and fourth substantial questions, the Court applied the principles laid down by the Supreme Court in Revansidappa v. Mallikarjun, 2023 AIR(SC) 4707. The Court noted that under Section 16(1) of the Hindu Marriage Act, 1955, children born from a void marriage are entitled to a share in the coparcenary property. The Court explained that in a notional partition under Section 6 of the Hindu Succession Act, 1956, the share of the deceased coparcener would devolve upon his heirs, including children born from a void marriage. The Court held that such children are entitled to a share in their father's property, though not in the notional partition itself.

"The child who has the benefit of Section 16(1) of the HMA 1955 acquires a 1/3rd share in the 1/3rd share which was allotted to C2 presuming that the partition had taken place immediately before the death of C2. This child, unlike the child born out of a lawful marriage, is not entitled to a share in the notional partition itself."

The Court also addressed the effect of the decree in RCS No. 102/2005, holding that while it bound the parties to that suit, it did not bind the plaintiff, who was not a party to the previous proceedings.

The Verdict

The Bombay High Court dismissed the second appeal, affirming the First Appellate Court's decree. The Court held that:

1. The suit properties were ancestral joint family properties, and the defendants were estopped from claiming otherwise due to their admissions in RCS No. 102/2005
2. The children of Pandurang's second marriage (defendants No. 4 to 6) were entitled to a share in the suit properties under Section 16(1) of the Hindu Marriage Act, 1955
3. The shares of the parties were determined in accordance with the principles laid down in Revansidappa v. Mallikarjun
4. The interim relief granted to the appellants by order dated 26.10.2021 was extended for a period of 12 weeks from the date of the judgment

What This Means For Similar Cases

Binding Nature of Admissions in Decrees

• Parties to a consent decree are bound by the admissions made therein and cannot retract such admissions in subsequent proceedings
• A decree based on admissions creates an estoppel, preventing parties from taking a contrary position in later suits involving the same properties

Rights of Children from Void Marriages

• Children born from a void marriage under Section 16(1) of the Hindu Marriage Act, 1955 are entitled to a share in their father's coparcenary property
• Such children are not entitled to a share in the notional partition under Section 6 of the Hindu Succession Act, 1956, but inherit a share in their father's portion
• Practitioners must ensure that partition decrees account for the rights of all legal heirs, including children from void marriages

Effect of Decrees on Non-Parties

• A decree binds only the parties thereto and does not affect the rights of non-parties
• Non-parties to a previous decree can challenge the validity of the decree or assert their rights in subsequent proceedings, provided they were not collusive or fraudulent