• Right of second wife children in case marriage is void

Hi Experts,
The person(P)[70 yrs] who is seeking suggestion is Hindu by religion.
He married w1[63 yrs] and gave birth to w1s1[44 yrs]. 
After his first wife(w1) left him along with w1s1. He married to w2[56 yrs] without divorsing w1.
w2 has four children w2s1 w2s2 w2s3 and w2d1(daughter).
Now the person P is staying with w2 and children.

Property details
prop1. Person P's father purchased property.
prop2. Person P and his 3 other brother purchased property.
prop3. w2 and w2's children purchased property with the help of w2's father and Person P's on duty income and purchased lands has been registered to w2's sons.

Person P offered w1s1, half in the prop1. But he refused.

Now w1s1 filed a case seeking his share and he mentioned 
prop1 as ancestral property.
prop2 and prop3 are purchased by income of prop1(ancestral)

Now my question.
1. Is prop1 self aquired or ancestral? as P's father has purchased property prop1 and it is been devided among 6 brothers of P.
As P is alive, has w1s1 right in prop1? If P is in favour of w2's sons.

2. can w1s1 get share in prop2 ? If plaintiff proves prop2 has been purchased by income of prop1. and if P is in favour of second wife(w2) and her son.

3. Is it possible to challenge prop3 by plintiff with the argument of prop3 being purchased by income of prop1.
Any precaution needs to be taken in defence in matter of prop3.

4. If prop1 is ancestral, to fight for prop1 share to w2's son what acts/laws may come in favour.
From supreme court verdict dated March 31, 2011 in case of Revanasiddappa vs Mallikarjun No.12639/09 
I read as children born out of void/null marriage is not illegitimate children. 
[The amendment to Section 16 has been introduced
and was brought about with the obvious purpose of
removing the stigma of illegitimacy on children born
in void or voidable marriage (hereinafter, “such
children”)]

I am the person who is posting in this forum is w2's son. Can we fight to get share in prop1. Is the one case verdict is enough or more such cases verdict are required to take case stand.
If required please mention such case details where children born out of void marriages also got rights in ancestral property as coparcener.

Defense filing is delayed. As defense lawyer told he will file defense in view of ancestral property being divided as two parts one for first wife son and other part is between second wife sons.
Need your valuable suggestion that will helps to file defense.

Thanks in advance.
Asked 4 years ago in Family Law
Religion: Hindu

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8 Answers

It is not ancestral property

2) property inherited on father demise is not ancestral property

3) son from first wife has no share in property during your lifetime

4) first wife and her son haveno share in second property

5) even if purchased from income of first property first wife and son have no share in property

6) they have no share in third property

7) get your reply to be filed in court vetted by senior lawyer

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

1. P1 is the ancestral property of P and hence is liable for equal division among his legal heirs which include son of his first marriage.

2. Yes if P dies without any Will.

3. No as it is difficult to prove it be purchased from the income of ancestral property of P.

4. W2 though illegitimate is liable to inherit the self acquired asset of P and not in his ancestral property as per the decision passed prior to passing of Revanasiddappa vs Mallikarjun .

After the said decision the difference of ancestrala nd self acquired assets was pblierated as the court held- " In our view, in the case of joint family property such children will be entitled only to a share in their parents’ property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the

amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents. "

The excerpts as reproduced above should clear all doutbs from your mind.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. The property P1 is inherited property and is not ancestral property, And P shall enjoy the property as the self acquired property.

2 No she cannot claim any right in property in life of P as the property is self acquired property. Further P1 is neither ancestral property.

3.No reason as above.

The illegitimate children also have equal right in the property further in life of P no one has rights on any property except property 3 which is registered in the name of children it self.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear sir,

My answer is as follows:

1. Is prop1 self aquired or ancestral? as P's father has purchased property prop1 and it is been devided among 6 brothers of P.

As P is alive, has w1s1 right in prop1? If P is in favour of w2's sons.

Ans: the said property is not ancestral property. To fit into the definition of ancestral property it has to come from four generations. But if a father dies without a Will then his self acquired property will be devolved on his legal heirs as per the inheritance. Both wives get equal shares and their respective children get equal share. But this can be happened only after the death of P. because property received by P from his father in the partition is his self acquired property only. P during his life time can execute gift deed or sell the property acquired by him from his father.

2. can w1s1 get share in prop2 ? If plaintiff proves prop2 has been purchased by income of prop1. and if P is in favour of second wife(w2) and her son.

Ans: This can happen only after the death of P. during the life time of P nobody has any right over such property.

3. Is it possible to challenge prop3 by plintiff with the argument of prop3 being purchased by income of prop1.

Any precaution needs to be taken in defence in matter of prop3.

Ans: No. as said above the rights accrue in favor of son only after death of P. however a suit may be filed restraining P from alienating all the properties on various grounds and thus prolong the issues.

4. If prop1 is ancestral, to fight for prop1 share to w2's son what acts/laws may come in favour.

From supreme court verdict dated March 31, 2011 in case of Revanasiddappa vs Mallikarjun No.12639/09

I read as children born out of void/null marriage is not illegitimate children.

[The amendment to Section 16 has been introduced

and was brought about with the obvious purpose of

removing the stigma of illegitimacy on children born

in void or voidable marriage (hereinafter, “such

children”)]

Ans: The legitimacy of marriage discussed in many cases and now the settled law is that even children void marriages entitle for a share. The marriage is looked into as to whether it took place before 1955.

I am the person who is posting in this forum is w2's son. Can we fight to get share in prop1. Is the one case verdict is enough or more such cases verdict are required to take case stand.

If required please mention such case details where children born out of void marriages also got rights in ancestral property as coparcener.

Ans: Each case is to be decided on its individual facts, there is no jacket formula. However you can claim your share.

Defense filing is delayed. As defense lawyer told he will file defense in view of ancestral property being divided as two parts one for first wife son and other part is between second wife sons.

Need your valuable suggestion that will helps to file defense.

Ans: If delay is not condoned you may get permission from High court. you may follow advise of your advocate.

=====================================

Dear Sir,

What does the grandparent's property law in India state? Does the grandson own the right to the property?

All property's owned by a Hindu person devolves onto his class one legal heir's.

Now to the specific scenario's in ur example (for sake of convenience I'm presuming ur ur grandfather has only one legal heir)

Senario1: The property is self acquired by your Grandfather, in such case upon his demise interstate (without a will) the property would devolve upon ur Father and not you. In case your farther passes away before your grandfather then it such case it would be devolve upon you, your mother and ur siblings equally.

Scenario 2: the property in question is self acquired by ur grandfather father ( ur great grand farther) - would devolve same as scenario 1.

Scenario 3: the property in question is self acquired by ur grandfather grand father ( ur great great grand farther) - would devolve same as scenario 1.

Scenario 4: the property in question is self acquired by ur grandfathers great grand father ( ur great great great grand farther) - then in such a case you would be entitled to the property by birth as it becomes ur ancestral property.

To give you more clarity on the concept of Ancestral Property's : any property which passes undivided down 4 generations of male lineage is called ancestral property. The right to such property acures at birth unlike other laws of inheritance where right arises upon the death of the the owner.

Hope this brings some clarity to your question and your sense of entitlements

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. Is prop1 self aquired or ancestral? as P's father has purchased property prop1 and it is been devided among 6 brothers of P.

As P is alive, has w1s1 right in prop1? If P is in favour of w2's sons.

This property belongs to P and he will be the absolute owner of the said property even though he inherited as his share out of his father's proeprty.

The wisi is not entitled to any share in the proeprty as a right, at least not during the lifetime of his father.

Therefore the suit filed aby wisi is not maintainable in law and likely to be dismissed, he will not get relief in appeals also.

2. can w1s1 get share in prop2 ? If plaintiff proves prop2 has been purchased by income of prop1. and if P is in favour of second wife(w2) and her son.

wisi cannot claim any right in this property also becasue it was purchased by P along with his siblings, therefore his legitimate share in it shall be his self acquired hence his own and absolute proeprty.

3. Is it possible to challenge prop3 by plintiff with the argument of prop3 being purchased by income of prop1.

Any precaution needs to be taken in defence in matter of prop3.

The 3rd property has been registered in the name of w2's sons, hence they are the actual owners of that property, even P cannot claim any share in it as a right.

4. If prop1 is ancestral, to fight for prop1 share to w2's son what acts/laws may come in favour.

Dont mis read the contents of law or any judgment. That judgment will not be applicable to this situation because basically this is not ancestral proeprty. This is P's father's father property out of which P inherited his legitimate During the lifetime of P nobody can claim any share in it as a right.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Sir since property is in name of B1S1 he shall have ownership but since there is possession of 40 years uninterrupted father can claim Adverse possession on the property. Further if there is record to show that property was jointly purchased the suit.of declaration can be filed and injunction can be sought against B1S1.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Father should file suit for partition for division of property by metes and bounds

2) since property was purchased in son name when he had no source of income he cannot be absolute owner of property

3) enclose documentary evidence that father had contributed funds for purchase of property

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

It has to be proved that the property though purchased on his name, it was properly divided among four brothers and each one were in possession and enjoyment of the same as independent owner of their respective share of property.

But they have to put a strong fight to establish their rights on the basis of adverse possession.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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