• Second wife daughter property rights

My mother had no children so my father married another lady without giving divorce to first wife. She gave birth to a girl child within a few months and left my father. My father used to say that he never shared bed with second wife who was already pregnant before marriage. Later I was born to them. Second wife filed case in the lower court for maintenance. It gave judgement for rs.300 per month. My father died in 1993 writing a will saying what ever share he gets in ancestral property to be given to first wife's daughter and that is me. Later they approached high court and the judgement was given in Dec, 2006 saying that rs.200 to be given as maintenance up to her daughter's marriage which was completed long back before the judgement. The HC has already mentioned that illegitimate child has right to father's property and not ancestral property. Here my father has earned nothing of his own. The agricultural property of 6 acres is ancestral and rights are to be of mine. But after these many years second wife's daughter has filed a case claiming for equal share in ancestral property now. Will she get the share?
Asked 4 years ago in Family Law
Religion: Hindu

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17 Answers

Hello,

Back in 2011 the SC has held that the illegitimate child has the right on ancestral property. You may refer to the following link:

https://www.google.co.in/amp/www.thehindu.com/news/national/Illegitimate-children-entitled-to-ancestral-property-Bench/article14674196.ece/amp/

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Dear Client,

Child from void marriage has inheritance right in father`s share but not in ancestral property.

And as your father already executed the WILL that his share from ancestral property will devolve in you, this way she has disinherited from his personal share too.

Illegitimate child has no share in ancestral property and by virtue of WILL, his share is now lost ancestral status and have become your personal property.

Can contact for Judgments/ruling and better defecne of your case.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The section 16(2) of Hindu Marriage Act provides write to the child born or conceived in a void or voidable marriages as the legitimate child and the daughter so born is a legitimate child and have all the rights as legitimate till it is proved that she is not born from her known father.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

She will get the share in the property but if you can prove that she is not born to your father and your father has just raised her, there will be chances you may succeed in the case.

Rajashekar
Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

The Supreme court has give ln various judgements that the child born out of void or voidable.marriage are legitimate and have claim on the property or share of property of there father. The only defence available to you is that your father was not a natural parent to him and was just a guardian she was not born out of relation of your father and second wife.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

daughter would not get any share in ancestral property as father died in 1993

2) only if father and daughter are alive as on 9th September 2005 would daughter have share in ancestral property

3) further in present case she is not biological daughter of your father

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

1) Yes she will get share in ancestral property equally. That is 50-50% share each wife. As per Hindu succession act.

THE HINDU SUCCESSION ACT, 1956

2. Application of Act.—

(1) This Act applies—

(C)

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

property would devolve on beneficiaries as per father will

2) apply for probate of father will

3) even for father self acquired property daughter would not have share if father did not bequeath her any property by will

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

Illegitimate child have right in father`s personal property, but by executing WILL, she has been disinherited, so no right of her left.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

As you have mentioned that the High Court has mentioned she has no right over the ancestral properties, therefore she can not claim ancestral property.

Rajashekar
Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

the share of that girl/lady does not exist in these circumstances

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

The judgement of the HC is per incuriam and will not hold good in light of the law laid down by the Apex Court.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

As per the amendment in Hindu succession Act she may get a share. You need to contest the same in court and deny it.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Under these circumstances, when the object of Sub-sections (1)and (2) of Section 16 of the Act is to confer a child which is born out of a wed lock which is null and void or out of a wed lock which can be declared as void in law as provided under Section 12 of the Act, in our view, it would not be right to limit the properties of the parents referred to under Sub-section (1) and (2) of Section 16 of the Act only to the self-acquired properties of the parents and exclude either the joint family or the ancestral properties of the parents. In our considered view, it should not make any difference whether it is a joint family property or a self-acquired property of a parent. Once such a child is given the status of legitimacy, as noticed by us earlier, for all purposes, such a child should be treated on par with the other children born to the parents whose marriage is valid in law. If the marriage is either null and void under Section 11 of the Act or is required to be declared null and void under Section 12 of the Act, the child born out of such marriage, which is given the status of legitmacy under Section 16 of the Act, in no way can be held responsible. For the contravention of law committed by the parents, a child born out of such a wed lock, when it is conferred with the status of a legitimacy and given a right, in properties of the parents, cannot be deprived of the right to take his share either in the joint family property or ancestral properties of the parents. Therefore, once such a child is conferred with the status of legitimacy, we are of the view that such a child should be conferred with the status of a coparcenar and will be subject to all the rights and obligations of the members of coparcenary. It is necessary to point out that the provisions contained in Section 16 of the Act, when it speaks of conferring status of legitimacy to a child born out of a marriage whether void or voidable in law, guarantees right in the properties of the parents. The object of Section 16 of the Act is intended to protect the interest of such children both in regard to their status and the right to succeed to the estate of their parents. Such a beneficial provision, which intended to protect such children, in our view, should be given a liberal and wider meaning, which would serve the object of the legislation. Any restricted meaning, in our view, would be in contravention of the provisions contained in Sub-section (3) of Section 16 of the Act. Further, it is also necessary to point out that such a child of a void or voidable marriage, in our considered view, should be treated as related to its parents within the meaning of Section 3(1)(j) of the Succession Act by virtue of Section 16 of the Act. The proviso given to Section 3(1)(j) of the Succession Act must be confirmed to those children who are not clothed with legitimacy under Section 16 of the Act. Therefore, we are of the view that by virtue of Section 16(1) of the Hindu Marriage Act as amended in 1976, the illegitimate son can be equated with his natural sons and treated as coparceners for the properties held by the father whether the properties be originally joint family property or not. However, the only limitation is that during the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek for partition and he can seek for partition only after the death of his father. In our view, we are also supported by the Division Bench decision of the High Court of Andhra Pradesh in the case of Rasala Surya Prakash Rao and Ors. (supra) strongly relied upon by Sri Jadhav wherein it has been held that a child of void marriage is related to its parents within the meaning of Section 3(1)(j) of the Succession Act by virtue of Section 16 of the Act and the proviso to Section 3(1)(j) must be confirmed to those children who are not clothed with legitimacy under Section 16 of the Act. In the said decision, the Court, after reviewing the decisions of Madhya Pradesh, Madras, Bombay High Courts and the Privy Council, and after referring to the decisions of the Supreme Court in the case of Gur Narain v. Gur Tahal Das, and in the case of Singhai Ajit Kumar v. Ujayar Singh, of the judgment, has observed as follows:

"33. From the principles enunciated in the various decisions discussed above, it is quite clear that even prior to the advent of Section 16 of the Hindu Marriage Act, both as per the Shastraic and textual law as well as the decisions of the highest Courts, the illegitimate son of a Sudra is entitled to enforce a partition after the father's death. He is entitled to the rights of survivorship as he becomes a coparcener with the legitimate son. The decisions have held that he is a member of the family and that he has status as a son and by virtue of that he is entitled to the right of survivorship. Section 16 of the Hindu Marriage Act has conferred on him the status of a legitimate son and his other pre-existing rights are, in no way, curtailed. After the 1976 amendment of Section 16, the benefits of Section 16 are enlarged and such benefits are also conferred on a son of a marriage which is void under the provisions of the Hindu Marriage Act, whether a decree of nullity is passed or not, such a son becomes a legitimate son. Such a child is also entitled to rights of succession under the Hindu Succession Act. A child of void marriage is related to its parents within the meaning of Section 3(1)(j) of the Hindu Succession Act, by virtue of Section 16 of the Hindu Marriage Act. Proviso to Section 3(1)(j) must be confirmed to those children who are not clothed with the legitimacy under Section 16 of the Hindu Marriage Act. In conclusion, we hold that by virtue of Section 16(1) of the Hindu Marriage Act, as amended in 1976, the illegitimate son can be equated with his natural sons and treated as coparceners for the properties held by the father whether the property by originally joint family property or not. The only limitation is that during the life time of the father the illegitimate son of a void marriage is not entitled to seek a partiton. He can seek a partition only after the death of the father. "

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

If there is a judgment about this by high court, you can fight it against her claim.

But please remember that the property inherited by your father becomes his own and absolute property and it cannot be considered as ancestral property, hence she may be entitled to a legitimate share out of this property.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

HC has recognized her as legitimate child judge clearly mentioned that she cannot claim rights on ancestral property. But can claim rights on father's property. She was married and has a kid aged 12. He wrote a registered WILL?

If you have a will on your name then you can get the will probated so that she will not become eligible for any share in the property.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Dear Sir,

The so called step sister not born out of relationship between your father and second wife so she is not entitled for any share even in the self acquired properties of your deceased father.

For more details and for effective legal advise, please call me immediately, through Kaanoon Website.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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