• Maintenance and gift deed

Sir, Mr.A has two wives the first wife Mrs.B files a case for maintenance in court . The maintenance is agreed upon in village panchayat duly signed in muchili by all panchayat members in 1975 including the chairman by granting 2 acres of land . Mrs. B remains seperated from the family and yeilds a child Mr. C to someone else. Mr. A is in his death bed under sedation due to cancer. Mrs.C gets a building gift deed registered in register office from Mr.A . My doubts
1] if Mrs.B has got maintenance and stated that she will not have any interest in rest of the property and her child being born to someone else have property right in ancestral property.
2] Mr.C being non blood line , will the dhana settlement ( gift deed ) be valid
3] how to go through the sedation aspect
4] DNA testing on Mr.C
Asked 3 years ago in Property Law
Religion: Hindu

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28 Answers

YOU MENTIONED:
Mr. A is in his death bed under sedation due to cancer. Mrs.C gets a building gift deed registered in register office from Mr.A.

Counter Question:
When A is on death bed under sedation, THEN how does he go to registrar office for Gift Deed ????

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

When A is on death bed under sedation, THEN how does he go to registrar office for Gift Deed ????

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

If the child of Mrs.B is not from A then he is not entitled to the ancestral property. Gift can be given to him but only of the self acquired property. DNA testing can be done.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

Second marriage is not recognized in Hindu law. Therefore the children cannot get ancestral property although they have a right to self acquired property.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

1. As per the Bombay High Court , step-son has no right to claim property if the father has died intestate, that is without a will.

- Hence, after stating that she will not have any interest in the rest of the property , she cannot claim any right legally , and also the child from someone else have not right over the ancestral property. 

2. As per section 17 of Bigamy Act, any marriage between two Hindus solemnised after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly.

- Hence, the said marriage with the second wife without getting divorce from the first wife is not valid and attract Bigamy as per law. 

-  Further, since the second marriage is not a valid marriage , hence as per law that lady will not treat as legal wife.

Mohammed Shahzad
Advocate, Delhi
13087 Answers
195 Consultations

5.0 on 5.0

1. Though right of maintenance can not be waived through agreement or otherwise in this case the transf6is for maintenance but may be an outcome of love and affection. 

2. Now if A was put under force, coercion or undue influence in executing the deed of gift then a civil suit for declaring the gift deed as null and void. 

3. Though both B and C would inherit both self acquired property of A in equal share along with children from his second wife, share of C can be relinquished only if C's paternity from A is disproved in court. 

Devajyoti Barman
Advocate, Kolkata
22774 Answers
484 Consultations

5.0 on 5.0

1) B is still legally wedded wife 

 

2) she would be one of legal heirs on husband demise 

 

3) gift deed would not be valid if you are able to prove that A was not mentally fit at time of execution of gift deed 

 

4) take the plea that A was under sedation suffering from cancer and not mentally fit 

 

5) file suit to set aside gift deed 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

1. If Mr. C is not biological child of Mr. A he shall not have right.

2. Yes the gift deed is valid.

3. The legal heirs of Mr. A file suit before court and may file application in same seeking DNA test of Mr. C.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

On A demise his first wife , child born out of second wife would inherit his property 

 

2) C and second wife have no share in property 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

File suit to set aside gift deed 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

1. Mrs. B, Mrs. D and child shall have share in property since MRs. B is not divorced she has right in property. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

The gift deed in non blood line is also valid.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

No the child born with someone else will not have rights in A ancestral property. If it's a self acquired property then it will depend on A will or if he died without will all his legal heirs will get the rights except the child born from other man from A wife. 

Prashant Nayak
Advocate, Mumbai
31795 Answers
175 Consultations

4.1 on 5.0

1.If it is proved that the child C was not born to A, then he cannot claim rights over the properties of a whether it is self acquired or ancestral 

2. If the dhana settlement was made by A during his lifetime in favor of C then it is very much valid, because it is the act of A and not a claim made by C as a right.

3. You may rely upon the medical records.

4. The person who is fighting the case against C has to prove the same, the burden lies on him to prove that the son C is not the biological son of A

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

If B is the first wife and her marriage with her husband was not dissolved by a court decree of divorce, then she remains his legally wedded wife.

By this she is entitled to a rightful share in the properties left behind by her deceased husband who is reported to have died intestate, in both the self acquired as well as his ancestral properties.

For now, if her son C is not proved that he is not the the biological son of A, then he too shall be entitled to a share in A's properties as his mother.

If the marriage between A and D was during the subsistence of the marriage between A and B, then this second marriage is actually null and void as per law, therefore D cannot claim any rights out of her deceased husband's properties as a right however her children can claim a share in A's self acquired properties alone and not in ancestral properties.

 

 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

The gift deed made in favor of C by A would be valid even if he is proved not to be his biological son because it was done by A out of his own volition that too during his lifetime.

However without legally proving that C is not the biological son of A, any claim made to cancel the registered gift deed may not be maintainable.

 You may discuss with a local lawyer at length on all aspects and proceed as the suggestions received.

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

1. Yes, Mrs B child will have right in the ancestral property. A mother cannot hamper a child's right of property (Apex Court)

2. Yes.

3. DNA can be done via court orders only. 

Every child, either from B or D....will have right in the property 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

1. What is agreed upon in village panchayat has no sanctity of law.

2. The child who is not the biological child of Mr.A has no share in the self acquired or ancestral properties of Mr.A.

3. C will succeed to the property gifted to his mother regardless of whether he is the biological child of Mr.A or not.

4. Mrs.B is entitled to succeed to the property of Mr.A as his Class 1 heir.

 

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. The illegitimate child will not have rights over ancestral property. 

2. Yes.

3. Through court.

 

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
2132 Answers
8 Consultations

4.9 on 5.0

A gift deed is lawful and a property may be given as a gift.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

1. If Mrs. "B" got the divorce from Mr. "A" through a competent Court decree, then she will not have any right over the property of Mr. "A" and the child (Mr. "C") born to her from someone else shall not have any right in the properties owned by Mr. "A".

2.  A Gift can be given to anyone, including the legal heirs and even if Mr. "C" does not belong to the male lineage of Mr. "A", still he could receive the self acquired property of Mr. "A" as Donee. However, if it were to be an Ancestral Property, then the Gift Deed executed by Mr. "A" in favour of "C" is Null and Void.

3.  If the Gift Deed was executed when the Donor was under sedation, then it can be challenged in the competent court of law for quashing the same.

4.  DNA testing on Mr. "C" will be able to determine as to know whether Mr. "C" belongs to the male lineage of Mr. "A" or not, to know the legal rights of Mr. "C" s entitlement to the self acquired and ancestral properties of Mr. "A".

5.  Regarding Mrs."B" s entitlement to the other self acquired property- Already explained under Sl.No.1 above. 

6.  Regarding Mr. "C" s entitlement to the other self acquired and ancestral  properties depend on his male lineage, to be proved by DNA test on him.

7. Regarding Mrs. "D" s entitlement to the other self acquired properties of Mr. "A" depends on the fact that, whether the court decree of divorce was obtained by Mrs. "B" and if so, whether the second wife Mrs. "D" got married to Mr. "A" after divorce or not determines Mrs."D" s entitlement.

8.  Regarding Mr. "E" s entitlement to the self acquired property of Mr. "A", depends on if only Mr." A" dies intestate (without executing a WILL). However Mr. "E" will be entitled to the ancestral properties of Mr. "A", since birth.

Shashidhar S. Sastry
Advocate, Bangalore
5067 Answers
314 Consultations

5.0 on 5.0

1. Child born to someone else cannot claim rights in ancestral property of person who is legal husband of his mother. 

2. Yes gift deed is still valid. 

3. Mrs. D cannot claim share from property gifted to wife of mr. C. 

 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

1. The illegitimate child of Mrs. B will not have any claim on the ancestral properties of Mr.A.

 

2. The Gift Deed registered in favour of Mr.C is valid.

 

3. You can challenge the said gift deed on the ground that it was executed and got registered under coercion and/or undue influence when Mr.A was in his death bed.

 

4. Why do you want to do the DNA testing for Mr.C? However, Court will not allow your prayer for testing the DNA of Mr.C.        

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. The second marriage of Mr.A is illegal for which Mrs. D will not get any share of the properties of Mr.A.

 

2. However, Mr.E will get equal share of the self acquired properties of Mr.A bit not of his ancestral properties.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1.Does not matter. It is not necessary that gift deed shall have to be executed/registered in favour of some one in the blood line.

 

2. Gift deed can be registered infavour of Ram Krishna Mission also.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

if C is not biological child of Mr A then he is not successor of Mr A,  C don't have right in ancestral property. 

gift deed is valid. 

Scientific evidence such as the results of Deoxyribonucleic Acid (DNA) tests are under Indian law to be evidence of one‟s paternity/lineage in that these tests can accurately determine whether or not the persons are biologically related. 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

as a wife B can entitled to claim A self acquired property. 

In the case of a legal second marriage, the property can be claimed by children of the second wife, too. However, if it happens when the husband has not divorced his previous wife or the wife is living and the man remarries, the second marriage is taken to be null and void.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

gift deed executed in favour of C is valid. 


gift deed executed in favour of C is valid. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

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