A building property is purchased by my mother in law in 1975 at a city in Tamilnadu. After the marriage of her first daughter in 1982 she died, leaving her husband, her married daughter, one unmarried son and one unmarried daughter. After one year my father in law married another woman and got two children through his second wife. He performed the marriages of his first wife's children in due course.
The children of his first wife filed a case now demanding their share of the property which is in the name of their mother. But he has countered that they have not any right to claim, saying that he purchased the property in the name of his wife as her name is lucky and said that he has executed a will and through the will he has given the property to the second wife's sons.
But he died before the case comes to trial. Now whether the first wife's children can modify the prayer in the case to claim the whole property as he has also died and the property is in the name of their mother? Whether the second wife's children can claim the property as he had written a will in their favour? Whether he was having a right to execute a will while the property is in the name of his wife?
Asked in Property Law from Madurai, Tamil Nadu
1. Well, do note that on the death of the mother the property is equally divided in equal undivided share among her husband and children even if her husband contributed money tio buying the same.
2. So her husband can not deprive the due share of the children.
3. So the children has rightly filed the suit for partition.
4. Now on the death of father his undivided 1/4 share is again equally divided among his children out of both marriages.
5. So the first wife's children can claim the whole depriving the children out of second marriage.
So act accordingly.
1) it has to be proved by second wife sons that property was bought by father in name of your mother
2) in other words what is source of funds for purchase of property
3) chamber summons have to be taken out to bring legal heirs on record . second wife and sons have to be brought on record by amending the plaint
4) you cannot claim the whole property
5) second wife sons have to prove the will
6) both suits would be clubbed together
After the death of first wife ,her property divided equally in between her husband and her own children's. After the death of husband his 1/4th share divided in between his childrens born in first wife and second wife . If the husband execute a will on his shares then the property is divided as per recitals in will even other wise disprove the will. The modification of will up to the above extent can sustainable in the eye of law.
The property in the name of a woman is her absolute property. The husband might have paid money and might have registered in the name of the wife, but the fact remains it is her absolute property.
The husband shall have no right whatsoever on the property including residence or testamentary powers such as Will or gift. So if he had claimed that he has executed the will, you can conviniently ignore the claim as he did not have any right in the first place.
The children born out of first wife are eligible to claim whole of the property.
1. Unless there was a declaration of the civil court in his favour whereby and whereunder he was declared as the title holder he could not have made the will. Be that as it may, if the will has been made then a suit to declare it illegal has to be filed by the children of his first wife.
2. The children of his second wife can bring themselves on record to continue the defence taken by their deceased father. The will needs to be challenged by the children of first wife.
If your mother in law did not have a separate source of income in 1975 when the property was purchased, then the assumption attached there with is her husband out of love and affection and out of his earnings had purchased the property in his wife name.
Therefore after her death (intestate) her husband succeeded to her estate, during his life time he has performed the marriage of his children from his first wife and then he remarried, from the second marriage he has two children. During his lifetime his second wife and children have rights over the property, rightly so he has bequeathed the property in favour of his children from his second wife.
whatever be the outcome of the case pending, in my opinion the verdict will go in favour of the children of second wife, in case they implead themselves as necessary parties after the death of their father. Also there is a possibility that they will produce a copy of the WILL left behind by their father. In such an event the suit filed by you is liable to be dismissed.
children of first wife have exclusive right in the property held by their mother. they have equal share in the remaining property of their father because father has died intestate.
if will is challenged before the court you cannot taken it back on the ground of death of father but you can demand for abatement of the suit if children of second marriage cannot prove its genuineness.
The property was purchased in the name of first wife so she becomes the legal owner of it, her husband cannot claim that he funded the property hence he has full rights in the property hence he has bequeathed the entire property to the children of his second wife.
This property shall devolve equally on all her own class I legal heirs only and the children of his second wife are not entitled even a handful of mud in that property.
However there is a hidden danger in this after the death of the father, i.e., since he is also a class I legal heir to his wife, he is entitled to a share in the property and that share f the property shall again devolve equally upon his class I legal heirs consisting the children of his first wife and his second wife and children of his second wife.
This is legal position. You may tackle the matter accordingly in the court.