• Married daughter of first wife property share in father's property

Hi
Recently our Father in law has been passed away, he had 23 years of married life with my mother in law before they divorced. Later he married a lady who has 12 year old boy, now his second wife claiming that entire property share as he nominated her name(there is no will).
Can you please suggest whether my wife and her sister has any chance of getting share? Are there any citations on this kind of case earlier? 

Location: Bengaluru,
Karnataka
Asked 5 years ago in Property Law
Religion: Hindu

2 answers received in 10 minutes.

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23 Answers

on demise of father in law his second wife , your wife and her sister would have one third share in property

2) MIL would not be absolute owner of property

3) your wife and sister can file suit for partition for division of property by metes and bounds

Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

Hello,

No, the daughter in law and the sister does not have any right in the property of the father in law.

However, in absence of the will the son can claim his share in the property as Assigning a nominee does Not Guarantee Inheritance.

Regards

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

The property of a Hindu male dying intestate, or without a will, would be given first to heirs within Class I Heirs Means Wives Sons Daughters,

Daughter can claim Equal Share in Fathers Property, if your step mother is refusing and she is in possession daughter can file Partition suit in Civil court and claim her share.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Hi, yes they can claim the rights of the property is ancestrol in nature

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

Sorry nomination is just for disbursing the property to legal heirs your wife and her sister will have equal share in property since there is no will nomination cannot confer any ownership on them.

Your wife and sister can file a partition suit along a stay application in civil court for there share.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Though first wife if divorced will not have any share but children will.have equal.share.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Hello Mr/Mrs.

Please supply complete Information. You have not whispered about the first marriage issue, I mean whether any child had born out from the said First marriage. Secondly, you further fail to mention who is asking for shares in the deceased property and what is her/his relation with deceased. Please supply complete information thereafter, legal opinion can be possible.

Regards

G.L.Soni

Advocate

G. L. Soni
Advocate, New Delhi
92 Answers
3 Consultations

5.0 on 5.0

the deceased was a Hindu

when he dies without leaving any Will then his property goes to his legal heirs who are his mother, widow and children

children here includes the children from first wife

so your wife and her sister definitely have a legal share in their father's property being class 1 legal heirs

Yusuf Rampurawala
Advocate, Mumbai
7559 Answers
79 Consultations

5.0 on 5.0

Yes, your wife and her sister have a share in the properties left behind by your FIL.

Any nomination/transfer of property to the 2nd wife, could have been done only under a will. Thus, since there is o will, this lady cannot claim the entire property.

Vibhanshu Srivastava
Advocate, Lucknow
9632 Answers
303 Consultations

5.0 on 5.0

1) The property will be distributed among two wife's 50-50% share and her two daughters will have 50-50% share in her 50% share of property.

Ganesh Kadam
Advocate, Pune
12940 Answers
256 Consultations

4.9 on 5.0

1.The divorce you adverted to means that your mother-in-law doesn’t have a share.

2. But her children with your father-in-law—i.e., your wife and her sister—are still entitled to their respective shares for they are Class 1 heirs for the purposes of Section 8 of the Hindu Succession Act.

3. The second wife of the deceased has a share in his estate for she is his widow (Class 1 heir).

4. The second wife’s children, however, have no claim whatsoever. This is because they are the deceased’s step children who had no blood relation with him and are not his heirs.

See this recent judgement by the Bombay High Court: https://www.livelaw.in/stepson-hindu-dying-intestate-cant-claim-inheritance-hindu-succession-act-bombay-hc-read-judgment/

The above order was made in the light of the Supreme Dourt decision in Lachman Singh v. Kirpa Singh, reported in (1987) 2 SCC 547 : (AIR 1987 SC 1616). As per this decision, the Act does not refer to stepson or stepdaughter where it says son and daughter.

I hope that answers your question. Follow-up queries welcome.

Pulkit Chandna
Advocate, New Delhi
208 Answers
5 Consultations

4.9 on 5.0

Hi,

Your wife and her sister may claim share, if the property is ancestral. Further, the divorce agreement or divorce decree of your father in law may also give some clue regarding rights of your wife and her sister.

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

Let me know if I can be of further help

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

Mam it is law itself the Hindu succession act section 8, 9 suggest same.

Further there is judgement of justice OAk in division bench bomaby high court which clearly say that the right of.succession always prevail over nomination.if need be cotation.can be given for same

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

If it was not legal divorce or if the alimony was not settled till the date of death of your father in law then your mother in law has got a share. Nomination is like trustee it does not means entire property goes to her but she has to distribute the properties left by deceased among the legal heirs of deceased as per inheritance law. Secondly, the share of children of first wife is intact since he has not executed any Will. Thus your wife and her sister are entitled for a share.

Kishan Dutt Kalaskar
Advocate, Bangalore
6136 Answers
487 Consultations

4.8 on 5.0

Nominee is only trustee for legal heirs

2) in Ramdas Shivram Sattur v. Rameshchandra Popatlal Shah,the Bombay High Court, held that the purpose of nomination under section 30 of the Maharashtra Cooperative Societies Act, 1960 is essentially to provide for the discharge of the societies’ obligation and that a nomination does not lay down any special rule of succession of properties of a deceased member overriding the general rules of inheritance prescribed by the personal law of the member of a cooperative society.

Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

Thanks for your appreciation

n the context of a title dispute between a nominee and a legal heir, over a flat in a cooperative housing society in Kolkata, the Supreme Court plainly stated that the flat would be transferred to the nominee - but the actual ownership of the flat clearly lay with the legal heirs of the deceased.

Ajay Sethi
Advocate, Mumbai
95223 Answers
7612 Consultations

5.0 on 5.0

Dear Sir,

Children of first wife also entitled for a share. You may advice your wife and her sister to file partition suit as follows. Children of each wife get share. Each wife has half share in the properties left by their husband.

PRAYER

WHEREFORE, the plaintiff prays that this Hon’ble Court may be pleased to pass an judgment and decree in favour of the plaintiff and against the defendants as follows.

a) Directing the defendants to effect partition of all the suit schedule properties by metes and bounds and put the plaintiff in possession of 1/2 share.

b) For grant of costs of the suit and such other relief’s as this Hon’ble Court may deems fit under the circumstances of this case, in the interest of justice and equity.

APPLICATION UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, 1908

For the reasons stated in the accompanying affidavit it is humbly prayed, to restrain the respondents from alienating the suit schedule properties, till the disposal of this appeal, in the interest of justice and equity.

Plaintiff

Through

Advocate

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Every daughter will now be entitled for her share in her father’s property. In a landmark decision, the Supreme Court has held that the 2005 law that made daughters equal to sons in claiming right in father’s property will apply even to those girls born prior to this date. This will open a Pandora box of sorts as millions of women are likely to come forward to take advantage of the new situation.

This decision is significant since the 2005 amendment to the Hindu Succession Act did not provide for retrospective operation of the law. Although a judgment of the Supreme Court in Prakash vs Phulwati (2016) held the amendment to be retrospective as regards daughters who are living as on the date of amendment (September 9, 2005), the recent decision has made it a general rule that a daughter (living or dead) on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.

A Bench of Justices AK Sikri and Ashok Bhushan ruled, “The amended provision (Section 6 of Hindu Succession Act) now statutorily recognises the rights of coparceners of daughters as well since birth….It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.”

The case before the court came up in an appeal from Karnataka High Court which refused to recognise daughters born prior to the 2005 amendment as coparceners in father’s ancestral property. One Gurulingappa Savadi died and left behind his two sons, two daughters and a widow.

The sons and daughters got married. In the year 2001, Savadi died. A year later, his grandson filed a suit to partition the family property equally among his grandmother, his father and uncle, leaving out his two aunts.

The aunts went to court seeking their share in father’s property. The trial court decision came on August 9, 2007, almost two years after the amendment was introduced by Parliament to Section 6 of the Hindu Succession Act 1958. The apex court said that the change introduced by Parliament was made on the touchstone of equality, seeking to remove the “perceived disability and prejudice” to which a daughter was subjected.

Confusion prevailed on this subject in the past as a Full Bench of Bombay High Court took the view that daughters born prior to the date the law was amended will not have any part in father’s property. However, the High Courts of Delhi, Karnataka, and Orissa took a different view on this issue holding that daughters born prior to the amendment, but who are alive on the date when amendment came into force, will be equally entitled as sons to the share in father’s property.

Ganesh Kadam
Advocate, Pune
12940 Answers
256 Consultations

4.9 on 5.0

If your father in law died intestate then his properties shall devolve equally on all his legal heirs which include his children from first marriage and his second wife and her son.

Your wife's step mother cannot deprive the rights of your wife in the properties, she can file a partition suit and seek her share of property legally.

T Kalaiselvan
Advocate, Vellore
85424 Answers
2239 Consultations

5.0 on 5.0

He has not nominated his second wife

His second wife shall be entitled to an equal share at par with the other legal heirs of the deceased.

T Kalaiselvan
Advocate, Vellore
85424 Answers
2239 Consultations

5.0 on 5.0

it gave lots of confidence for me and my family. It would be great if I get citation the way Advocate Pulikit Chandana gave. Please

No citation is required to claim your rights as per the provisions of law.

First of all file a suit seeking partition and separate possession of her share n the property after that you can look for citations if necessary.

T Kalaiselvan
Advocate, Vellore
85424 Answers
2239 Consultations

5.0 on 5.0

Hi sir

It’s well and good case of yours as per my suggestion for being nominated it’s not valid documents.

I would suggest you to go through the smt. Sarbati devi vs smt. Usha Devi. AIR 1984 SC 346 it clearly explains about the word nominations.

For further details do call me

Koushalya Pattan
Advocate, Bangalore
174 Answers

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