Ancestral property & will
chandrakant singh
(Querist) 04 June 2012
This query is : Resolved
CAN GIVE MY SHARE OF MY ANCESTRAL PROPERTY BY WILL TO MY FRIEND??
My grandfather purchased a dwelling house.He died intestate.
On his death, it was transferred to my father's name. He died
Now it is on name of my mother and we two sons. So I have 1/3rd Part in it . Now my mother died a year back .
I have Two wife. 1st is not divorce, having Two adult children.
2nd have Two adult children .
I do not want to give anything to 1st wife or to her children, as I have no relationship.
I believe, illegal children or wife have no right in ancestral property.
Can I execute WILL TO TRANSFER MY SHARE OF MY ANCESTRAL PROPERTY TO CHILDREN OF SECOND WIFE??
Can I pass on my share of property to anyone of my choice during my lifetime??
Adv.R.P.Chugh
(Expert) 04 June 2012
Mr.Singh,
Your first wife was not divorced when she married you or she is not divorced by you - make this clear. In either case the children of first marriage are not illegitimate - if there was a ceremonial marriage.
On the above would depend the fate of your second marriage, and the fact whether you can will it away if yes in what measure ?
adv. rajeev ( rajoo )
(Expert) 04 June 2012
during the life time of first wife, second marriage is illegal. Your first wife can seek partition in the ancestral property thru., her sons/daughters. Second wife is not entittle for the share, her sons/daughters can seek their share in the share of the father.
A V Vishal
(Expert) 04 June 2012
The Supreme Court has held that under the Hindu Marriage Act (HMA), illegitimate children are entitled to all rights in the property of their parents, both self-acquired and ancestral.
A Bench of Justices G.S. Singhvi and A.K. Ganguly, hearing an appeal by Revanasiddappa, differed with earlier judgments in interpreting Section 16 (3) of the HMA that “such children are only entitled to the property of their parents and not of any other relation.”
Stating that it was constrained to take a different view, the Bench referred the matter to Chief Justice S.H. Kapadia for posting it before a larger Bench. The Bench said, “The relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights, which are given to other children born in valid marriage. This is the crux of Section 16 (3).”
Writing the judgment, Justice Ganguly said that under Section 16 (1) and 16 (2), it was expressly declared that children born in a void or voidable marriage, (viz. second marriage) should be legitimate.
“If they were declared legitimate, then they cannot be discriminated against and they will be on a par with other legitimate children and be entitled to all the rights in the property of their parents, both self-acquired and ancestral.”
The Bench said: “the prohibition contained in Section 16 (3) will apply to such children with respect to property of any person other than their parents. We find it interesting to note that the legislature has advisedly used the word ‘property' and has not qualified it with either self-acquired property or ancestral property. It has been kept broad and general.”
Underlining the need for a liberal interpretation of Section 16 (3), the Bench said: “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role.”
Quoting an earlier judgment, the Bench said: “the HMA intends to bring about social reforms and conferment of social status of legitimacy on innocent children is the obvious purpose of Section 16. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.”
“However, one thing must be made clear that the benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable. 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.”
Right to property
The Bench quoted Article 39 (f) of the Constitution which says “that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Right to property is no longer fundamental but it is a constitutional right and Article 300A contains a guarantee against deprivation of property right by authority of law.”
Since there was no restriction imposed in Section 16 (3), such children would have a right to whatever “becomes the property of their parents whether self-acquired or ancestral,” the Bench said.
Anirudh
(Expert) 04 June 2012
In Revenasiddappa's case, the SC has not finally decided the matter.
In fact in view of the difference of view of the bench, with earlier decisions of the SC, the matter has been asked to be placed before a larger bench for decision.
Para 43 (last paragraph of the decision) reads very clearly as under:
"43. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench."
Therefore the decision has not attained any finality in Revenasiddaps's case.
The matter has not been dealt with any Larger Bench so far.
The attached file may also be seen in this regard.
Till finality of the matter, it cannot be said that the illegitimate children are entitled to share in ancestral property.
Shonee Kapoor
(Expert) 05 June 2012
I endorse views of Anirudh till the extent that it has not attained finality. Till the decision of a constitutional bench is passed, this is the law that the illegtimate children are at par with legtimate children as far as the right to acquire property are concerned.
Regarding the two marriages, which one is legal and void can be decided after getting more facts from the queriest.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Anirudh
(Expert) 05 June 2012
Dear Mr. Shonee,
Till a decision of the SC comes, the illegitimate children are not entitled to a share in the ancestral property.
Adv Archana Deshmukh
(Expert) 05 June 2012
The said decision in Revanasiddappa's case is not binding as a precedent as it is referred to the constitutional bench. The records will be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench. Till the referance bench pronounce its judgment, the position of law is that illegitimate children cannot succeed to the ancestral property of a male hindu.
M V Gupta
(Expert) 05 June 2012
As per Section 16(3) of the HMA illegitimate children do have right to the parents self acquisitions, but not of any other relation such as the ancestral property. The reference made to the larger bench appears to be relating to the rights of illegitimate children to the ancestral property.
V R SHROFF
(Expert) 07 June 2012
SC referred the matter to larger bench, to decide the rights of illegitimate children to the ancestral property. Till then, [ as waiting for last 1 year] sec 16(3) apply.
Any changes had to be approved by Parliament in form of amended Law.
V R SHROFF
(Expert) 07 June 2012
As far as WILL is concerned, you can pass on your share only, at the time of your death, , otherwise it will be shared by all your heirs.
