According to the Karnataka High Court, a son born in a “Batil” marriage (void-ab-initio) under Mohammadan Law is an illegitimate child and is not entitled to inherit anything.
The original plaintiff, Nabisab Agnnamani, successfully appealed. Justice V Srishananda’s single-judge bench of the Karnataka High Court upheld the appeal and vacated the first appellate court’s decision awarding the original defendant, Hatelsab Sannamani, a half share of the ancestral property while maintaining that Sannamani was a legitimate son of Fakiramma through the plaintiff’s father, Huchchesab.
The plaintiff’s main argument was that Fakiramma was already married to one Moulasab Menasagi and that, absent evidence to the contrary, her second marriage to his father was null and void by Section 253 of Mohammadan Law.
Karnataka High Court
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The plaintiff’s witness, who testified that Moulasab Sannamani had signed for the defendant as his elder brother in the “varadi” (report) to the tax authorities, including the defendant’s name about the suit lands, was considered by the court.
Following this, the Karnataka High Court said, “Since defendant DW1 has admitted in clear and categorical terms that one Moulasab Sannamani, who is the elder brother of DW1, has signed as a guardian of DW1, it presupposes that Fakiramma must have been married Moulasab Menasagi earlier to her marriage with Huchchesab.”
Further, it said, “Since the defendant pleaded that he is the son born to Fakiramma through Huchchesab, who is the father of the plaintiff, it was incumbent on the defendant to establish that the marriage of Fakiramma with Huchchesab was a valid marriage.”
It held that unless the first marriage of Fakiramma with Moulasab Menasagi is duly dissolved as per the Mohammadan law, her marriage with Huchchesab should be considered a ‘Batil’ marriage.
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Accordingly, it allowed the appeal and set aside the order of the first appellate court. “In the absence of any plausible evidence placed on behalf of the defendant that Fakiramma was eligible to marry Huchchesab, without there being a decree of divorce or dissolution of marriage in accordance with the Mohammadan law.”
The Karnataka High Court added, “This Court is of the considered opinion that contrary finding recorded by the learned Judge in the First Appellate Court holding that the defendant is a legitimate son and therefore dismissing the suit, in the considered opinion of this Court is a perverse finding.”
