Second marriage Children right over the ancient property, when first wife does not have any children
Querist :
Anonymous
(Querist) 12 October 2010
This query is : Resolved
Hello All Respected Lawyers/Advocates,
Please read the below few lines of the case and suggest me the legality
1) Grandfather died without giving any share or will to any one (that is either to his children or to his wife)
2) Father married in the year 1960 and through his first wife does not have any children.
3) To have children, married in the year 1970 and through his second wife, he blessed with two sons.
4) Both the marriages were happened as per Hindu Customs etc.
5) During first son was in womb, Father gifted the property to his own mother (that is to Grand mother of son) to destroy the rights over property by coming sons. That is a 30 years son gifted the property to his own mother of age 65 years. And that too the property belongs to Grandfather and by virtue, it could come to Father, even then it was gifted illegally.
6) After both sons born to his second wife, Father died in the year 1980.
7) After some time, Grandmother also died.
8) At present, only left with Two Widows (First wife and second wife) and then Second wife Children (Two sons)
First Wife
Second wife
Son-1
Son-2
9) So, there is only one property, which is a ancient property and left with above heirs.
10) Please suggest me the legality here even the second marriage was a void due to married in life time of first wife and also property was gifted to grand mother to destroy the rights over the property by second marriage sons.
Awaiting your valuable legal suggestions
Many Thanks
Mahesh R Krishna
R.Ramachandran
(Expert) 12 October 2010
Dear Mr. Mahesh,
First it is not clear whether the Grandfather's property is his ancestral property or self-acquired property. Let me answer your query in respect of both the situations.
Ancestral Property:
2. If it is ancestral property (then though his Son could not have given it as gift to anybody), the illegitimate sons cannot claim any share in such ancestral property. The gift being void, the property will devolve on the first wife in this case.
Self Acquired Property:
3. Assuming that the grand father's property is not ancestral but his self-acquired property. Then, the property was inherited by his Son (i.e. father) after the death of his father (i.e. grand father). With the passing of the Hindu Succession Act, 1956, such inherited property will be the individual property of the Son and will not be an ancestral property (even though the property originally such a property belonged to your grand father).
4. A person who has individual property can do anything with it as he wishes - i.e. he can gift it to any one he likes. In this case, if the Son had gifted his property to his Mother (he did not even give to his first Wife) the same cannot be questioned by any one (including by the sons from the second wife).
5. Now the indivual property of the grand mother: Since the property gifted by her Son is the individual absolute property of the grandmother, upon her death, the property will go by way of inheritance in accordance with Section 15 and 16 of the Hindu Succession Act, 1956.
6. According to Section 15(1)(a), firstly the sons and daughters of the deceased female will inherit the property. [here the widow of a pre-deceased son or husband of the pre-deceased daughter is not included].
7. According to Section 15(1)(b), in the absence of heirs mentioned under point 6 above, the heirs of the husband of the deceased female will inherit the property. Heirs of the husband means the heirs as mentioned in Section 8 of the Hindu Marriage Act.
8. If even the heirs mentioned in point 7 above are not available, then in terms of Section 15(1)© of the Act, the deceased female’s (in this case grandmother’s) mother and father would inherit the property.
9. If point 8 fails, then heirs of the deceased’s father would inherit.
10. If point 9 fails, then heirs of the deceased’s mother would inherit.
Querist :
Anonymous
(Querist) 12 October 2010
Hi Ramachadran,
Thanks for the detailed reply and suggestion.
Thanks for spending time for this issue also.
I do have one doubt, during time of gifting the property by father to Grand mother, the First son was in Womb and also, if you can see the total thing, one can know that, the gifting the property was done just to destroy the rights over the properties by coming sons.
As they thought that, mother is conceived and she is going to give birth etc..they have done this.
Not for any cause.
So, by the time First son in womb he could be the co-parcener of the father property.
So, does it legally valid.
Many Thanks
Mahesh R Krishnan
R.Ramachandran
(Expert) 12 October 2010
The first child in the womb might be of relevance if it had been legitimate child. In this case, it is an illegitimate child (the second marriage is not valid especially when the first wife was alive) and therefore not entitled to be a co-parcenar.
Further the intention of the person (whether to deny any benefit to anyone) who gifts his property cannot be questioned at all.
