• Inheritance of property

I am a resident of Kerala and a Hindu woman. I would like to know regarding the inheritance right of Hindu woman who has re-married in the previous husband's ancestral property. My first husband died in 1975 and i have a daughter in that. I had to remarry in 1977 and presently i am living with my remarried husband. my previous husband has ancestoral property which is not yet divided. Do i, along with my daughter ( born out of first husband), has a share in this property? Some say that i have no share and my daughter only has since it is previous husbands ancestral property. kindly clear my doubt with the relevant section of law. at the time of death of my first husband his mother was also alive. So her heirs will also get a share. What should i do to get the share of myself and daughter, if i have a right to his property?
Asked 4 years ago in Property Law
Religion: Hindu

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17 Answers

Kindly clarify on what basis you say it is ancestral property

2) property which has remained undivided for four generations is ancestral property

3) on husband demise his share in ancestral property woukd devolve on you and your daughter

4) you can file suit for partition for division of property by metes and bounds

5) your remarriage is immaterial

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

1) At the time you did second marriage all your rights from first husband's property came to an end.

2) Only Daughter who was born from wedlock of first husband has full rights in his share and that is full share in ancestral property as legal heirs of her father. as per the Indian Succession Act , Class I - heirs.

Here in India there are two laws one say it can get the property to first wife and one says it does not.

But if you go below citation than you should get share in your ex-husband's property.

Below are the both the act along with sections.

The Hon’ble Bombay High Court in a recent judgment has ruled that a widow, even after she has remarried, has the rights over her former husband's properties. The petition was filed by a man against his former sister-in-law who had claimed the right over her deceased husband’s properties after she married another man.

The brother of the deceased relied on the provisions of Section 2 of the the Hindu Widows' Re-marriage Act, 1856, which reads as under:

“2. Rights of widow in deceased husband's property to cease on her remarriage –

All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall thereupon succeed to the same.”

On the strength of this provision, the only argument advanced was that the limited right and interest which a widow had in her deceased husband’s property would cease to exist if she remarries without express permission, and the next heirs of her deceased husband, or other persons entitled to the property, shall thereupon succeed to the same.

Section 8 of the Hindu Succession Act, 1956 which provides the general rules of succession in case of males which reads as under:

“ 8.General rules of succession in the case of males –

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.”

The Court ruled that provisions of the Hindu Succession Act, 1956 would prevail over the repealed Hindu Widows' Remarriage Act, 1856. There was no provision in the Hindu Succession Act, 1956 which was pari materia with section 2 of the Hindu Widows' Re-Marriage Act, 1856. The Court further observed the widow even after remarriage would qualify as Class I heir and the husband's kin would still be a Class II heir. Section 9 provides the order of succession among heirs and stipulates that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs

In the light of the observations above, the Court concluded that a woman doesn't lose rights over her dead husband's properties - moveable and immoveable even if she remarries.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

yes you and your daughter have right over the property of your first husband, as per hindu succession act you both are class one heirs and you have right over the property,

8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

9. Order of succession among heirs in the Schedule.—Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

10. Distribution of property among heirs in class I of the Schedule.—The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:— Rule 1.— The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.— The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.— The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4.— The distribution of the share referred to in Rule 3—

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

See first the share will divide between you daughter and mother in law then the mother in law share after her death will go to her heirs in that also you and your daughter will be part.,

You have to file a suit for partition in the civil court for your share.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. when your first husband died without leaving any Will, his properties would go to his legal heirs who are his mother, widow and children

2. when your husband died, obviously you were not married

3. therefore you became a class 1 legal heir alongwith your daughter and mother in law

4. you remarried only subsequently i.e. after your husband passed away

5. as per section 8 of Hindu Succession Act, the property of male Hindu dying intestate devolves on his heirs of class 1 if the heirs of that class are living at the time of his demise

6. there is nothing in section 8 which says that just because the widow has remarried she ceases to become a class 1 legal heir of her deceased first husband

7. if the property is ancestral property then the undivided share of your husband in that ancestral property will devolve on you, your daughter and your mother in law as if a partition had taken place immediately prior to his demise

8. moreover if the property is ancestral then provided your husband was living on 9.9.05 when the Hindu Succession Amendment Act came into force, then your daughter will become a coparcenor in the ancestral property and thus will have an undivided share IN ADDITION to her share which she will inherit from the undivided share of your deceased husband in the ancestral property

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Hi,

Your daughter may claim the share in the ancestral property and for this partition suit may be filed in district court.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Hi

1) Since your First husband died in the year 1975, his share in ancestral properties will vest in the year 1975 and on that date, the legal heirs of your first husband will be

a) Your mother in law

b) Your daughter and

c) Yourself.

2) So whatever is the share allocated to your first husband will be divided equally in to three parts.

3) The factum of your remarriage in the year 1977 will not prohibit or restrict you from claiming the share of properties that belonged to your first husband.

4) Please refer to judgment of Supreme Court of India in Cherotte Sugathan (Died Through ... vs Cherotte Bharathi & Ors. In this case, Kerala High Court had passed the judgment that Remarried Widow has a share in Dead Husband's property and the same was affirmed by the Supreme court.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Widow after getting remarriage cannot claim her share in former husband's ancestral properties,

The children have absolute right over the properties but the widow who got remarried after death of her husband have also right over the self acquired properties of deceased husband.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

The property will be divided by either mutual partition deed or if they do not.agree by filing the partition suit in the civil court.

Ye should can relinquish your right in favour of any legal.heir or can gift your share to anyone.

Yes the deed need.to be registered and stamp.duty need to be paid.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) First get your both of names register on the legal papers in registrar office. and then you can make release deed or gift deed against consideration or without consideration.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Deed of family settlement can be executed for division of property by metes and bounds

2) you and your daughter can execute relinquishment deed to relinquish your share in property

3) in alternative gift deed can be executed

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

1. if you want to give up your rights in the property then why divide it?

2. you can simply execute release deed in favour of the legal heir in whose name you wish to transfer your share against consideration

3. as there will be consideration involved in this transaction, gift deed cannot be executed

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Hi

At the time of demise of your husband, the 17 cents of land will need to be divided in to 3 parts and shared equally between your mother in law, your daughter and you.(Each of you will get about 5.6 cents of land)

Now coming to your mother in law's share ,, subsequent to her demise will vest in equal shares upon her legal heirs( including your deceased first husband). The 5.6 cents will be divided amongst the legal heirs in branches.

Both you and your daughter can execute a release deed in favour of one of the legal heir (if monetary consideration is involved).

Gift deed is applicable only if you do not receive any monetary consideration from the legal heir.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Hi,

You/your daughter may give release or relinquish deed in the name of legal heir of your mother in law. If you wish to get the property for yourself, you may ask for yourself. One more thing to consider here is that if your daughter is adopted by your present husband, she may loss her rights in that ancestral property and is fully entitled for the property which belongs to your present husband.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

You would have a share in the ancestral property of your husband who died intestate irrespective of the fact that you got remarried after his death.

Your daughter would also have an equal share in the said property.

You should file a suit for partition in civil court by metes and bounds in order to claim your and your daughter share. Section 8 of the Hindu succession act, 1956 does not any provision which bars a woman claim her share in the deceased husband's property if she goes on to remarry after his death.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

There is no purpose of filing a suit for partition if you want to relinquish you are right in favour of your ex mother in law's legal Heirs.

You can execute a relinquishment deed or gift deed in favour of them after the property has been partitioned in your name or a family deed of settlement is executed between the parties.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Since you have remarried even before your deceased husband's share of property has been confirmed or ascertained, you will not be entitled to any share in it.

However if there is any share entitled to your deceased husband, then that share will go to your daughter born to him.

If his mother is not alive then her share will automatically devolve on your daughter being his class I legal heir.

For clarification you may go through section6 of HSA, 1956.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

For an answer to the question on your subsequent post, you may go through my answer given there.

As per that only your daughter shall he the lone successor to the property left behind by your deceased husband.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

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