Paro (NA) 30 September 2011

Pls help to clear confusion

Recently a relation of mine expired. His wife asked me to help.

This guy Mr. X married in 1955, had a daughter in 1956. His wife left him, but before leaving she signed a handwritten paper stating something like "If I committ suicide, I do not hold responsible my in laws or my husband". This was in 1957. The paper has a revenue stamp, her thumb impression, and two witnesses. She took her daughter with her.

When her daughter got married, the father's name was not printed on the wedding card.

Meanwhile, Mr. X married. He has no children from his second wife. He transferred half of his agricultural land and the house in the name of his second wife. Now Mr. X dies in 2011.

Has the first wife any right on his ancestral land and house? has the daughter any rights on the same? They both are threatening to sue the second wife.

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11 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 01 October 2011

yes, both have rights on the untransferred part.

However, the land transferred is transferred and they have no right over it.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

Alok Tholiya (self employed) 01 October 2011

I think Mr Shonee is right.

Nandgopal (Partner) 01 October 2011

Ms Paro,

there are some aspects to this problem as i see it.

1. Assuming that the person married the second time prior to comming into effect of the Hindu Marriage Act of 1956, the second marriage is valid as there was no bar for contacting a second marriage during the life time of the first wife.

2. It could be pleaded that at the time of execution of the document, the mother was was ignorant of the contents of the letter being illitarate.

3. It is not possible for even a mother to give up rights of a daughter who was a minor at the time of the signing of the document.

3. While the hindu succession act as it now stands would vest the daughter with a share, provides the property is ansestral, however if the property is self acquired in view of the transfer during his life time she would be excluded.

4. I would suggest you speak to a lawyer who is well versed in Hindu law.

Paro (NA) 02 October 2011

Thanks a lot.

Paro (NA) 02 October 2011

Mr. Nandgopal.

Thank you so much for you reply.

What I would like to know is if a wife doesnt live with her husband, and it can be proven that she never visisted him for the last 50 years, shouldnt the marriage considered dissolved.?

(Guest)

gone for a toss... returned for money... very difficult to prove...

Nandgopal (Partner) 04 October 2011

Dear Ms Paro,

Please consideration a situation prior to the coming into force the 1956 act. Under the uncodified law, the concept of divorce was unheard of and the document that you have could be used as an estopple for the purposes establishing desertion.

The Supreme court has time and again held that if the separation is coupled with animus desendi of never to join together again the the factum of desertion is taken to have been proved.

The very fact that there was no reunion during the life time would establish the fact that the separation was complete, and that since the codified law was not in force the letter written could be construed as a divorce that would disentitle her to any share in the property.

However the daughter if indeed is his biological daughter then she would have a share in the fathers estate and she is a class 1 heir.

Regards,

Nandgopal

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 06 October 2011

If the person had not divorced his first wife, his second wife would have no locus standi as the second marriage was in 1957 after the Hindu Marriage and Divorce Act had come into force and hence void. Even transfer of property to his second wife can be challenged as she was a non-wife under the law. In any case the daughter will have rights on her father's property. If he had any child in the second marriage he or she also will have rights on his/her father's property