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Philomina   08 June 2020

Rights

My father INHERITED a property from my grandfather through a registered will. My grandfather INHERITED the same from his father. Totally the property measured 10000 sq feet. In this when my father was alive, he sold 6000 sq feet My father has 3 wives, First wife having 3 children Second wife having 3 children Third wife having 2 children Even though my mother was alive he married 2 other wives without my mother’s knowledge. Finally, before his death, he executed 3 gift deeds in second wife 3 children names. 1000 sq each to all three. And a final will with 2000 sq ft in first wife’s name. My questions: Now the third wife and her children are approaching my mother the first wife, for want of share in the given said property by my father through a registered will. Will the third wife children have right to ask share in the property acquired by my mother through a registered will? If they approach the court will they get share accordingly? My father is the sole owner of the property right he can give the same to any one he wishes. As a first wife what all are of my mother and how can she save the said property? Can my mother execute the acquired property through will to her 3 children’s? Currently my mother is enjoying the property paying taxes, Katha and electricity and water bills.


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 18 Replies

Sinjari Bandyopadhyaya(Banerje (Lawyer 9830019661 Kolkata WB)     08 June 2020

Originally posted by : Philomina
My father INHERITED a property from my grandfather through a registered will.My grandfather INHERITED the same from his father.
Totally the property measured 10000 sq feet.
In this when my father was alive, he sold 6000 sq feet.My father has 3 wives,
First wife having 3 children
Second wife having 3 children
Third wife having 2 children
Even though my mother was alive he married 2 other wives without my mother’s knowledge.

Finally, before his death, he executed 3 gift deeds in second wife 3 children names.
1000 sq each to all three.

And a final will with 2000 sq ft in first wife’s name.

My questions:

Now the third wife and her children are approaching my mother the first wife, for want of share in the given said property by my father through a registered will.


Will the third wife children have right to ask share in the property acquired by my mother through a registered will? If they approach the court will they get share accordingly?....
It is necessary to apply for Probate/Letters of Administration of that registered Will before the Court of Law and at that time notice is required to be given to all the eight children of your deceased father (who along with your mother as the legal heirs and heiresses of your deceased father would inherit the property if there was no Will ) and thereafter following the process of Law(either contested or uncontested manner) the matter will be disposed of and if the Will's contention will be proved then your mother will become the sole Owner of that 2000sq.ft. property and thereafter Second and Third wive's children can't claim any share therein.

 


My father is the sole owner of the property right he can give the same to any one he wishes.

As a first wife what all are of my mother and how can she save the said property?....It is necessary to apply for Probate/Letters of Administration of that Will of your deceased father before the Court of Law

Can my mother execute the acquired property through will to her 3 children’s?...Until and unless the Will of your deceased father is probated from the Court of Law,your mother can't be considered as sole owner of that 2000 sq.ft. property and after probating the Will of your deceased father,your mother being the sole Owner of that 2000sq.ft.property can make Will in her children's favour.


Currently my mother is enjoying the property paying taxes, Katha and electricity and water bills.

 

1 Like

Virtual Legal Assistant (.)     09 June 2020

Hello,

The rights of the wife and her children over the husband’s property are governed by the legality of the marriage under the Hindu Marriage Act, 1955, and the children’s rights to claim property under the Hindu Succession Act, 1955. The Hindu Marriage Act prohibits polygamy under Section 5 of the Hindu Marriage Act, it specifies that at the time of marriage, none of the parties should have a living spouse. Therefore, if this condition is not met, in the said circumstances the second wife and the third wife do not have the right to claim any share in the property of the husband.

The Supreme Court has opined in certain judgments that children born of a void marriage can claim the father's property. The children are understood to be legitimate and can be coparceners in the father’s ancestral property if he dies intestate. The child from the void marriage would be considered legitimate as per Section 16 of The Hindu Marriage Act, 1956, and they would have right over the property of the father as a class I legal heir if the father dies, as per the scheme of Hindu Succession Act, 1956.

After going through your query, in my opinion, your mother shall register the will in the appropriate court. She can be considered as the sole owner of the said property, once the will is probated from the court.

The will is filed with the probate court by who so ever is in possession of it. The will is filed with a petition for probate asking the court to approve the will and put it into effect. Once the will has been filed, Heirs and beneficiaries are legally notified, which gives them the opportunity for contesting a will they believe is not valid. Once the will of your deceased father has been probated, your mother can execute the acquired property through a will to her 3 children.

P. Venu (Advocate)     09 June 2020

"Totally the property measured 10000 sq feet. In this when my father was alive, he sold 6000 sq feet My father has 3 wives, First wife having 3 children Second wife having 3 children Third wife having 2 children Even though my mother was alive he married 2 other wives without my mother’s knowledge. Finally, before his death, he executed 3 gift deeds in second wife 3 children names. 1000 sq each to all three. And a final will with 2000 sq ft in first wife’s name."

It appears that the facts are confused. When there was only 1000 sq. ft. left (10000- 6000+3x1000), how could there be a bequeath of 2000 sq,ft.? It appears father is no longer alive.

In the facts and circumstances posted, the provisions of Hindu Succession Act appears to have no application, esp. as the author , as the name suggests, appears to be chrisitan by religion and hence, the provisions of Indian Succession Act would apply.

It is not always the case that Will needs to be probated.

1 Like

Prabhakar Reddy   09 June 2020

Hi Rohan Gupta Ji,

Thanks a ton for the reply i really appreciate it.

I need to know what is the meaning of PROBATED FROM THE COURT AND TO BE APPROVED FROM THE COURT.

Now the first wife, my mother is in possesion of the property-Katha,electricity bills and water bills.

Should we go to the court and probate?

And definitely childrens of 2&3 wives will challange the will

In such circumstance will the 2&3 wive children get share ?

Will the court reject their plea and approve the will ?

And other point is second wife 2 children have already got 1200 each in this property.

 

 

 



 

Dr J C Vashista (Advocate)     09 June 2020

@ Philomina @ Prabhakar Reddy

Whether your father professed Hinduism or any other religion? Personal laws of succession differ for different religion and it can not be presumed.

Sinjari Bandyopadhyaya(Banerje (Lawyer 9830019661 Kolkata WB)     09 June 2020

Originally posted by : Prabhakar Reddy

Hi Rohan Gupta Ji,

Thanks a ton for the reply i really appreciate it.

I need to know what is the meaning of PROBATED FROM THE COURT AND TO BE APPROVED FROM THE COURT.

Now the first wife, my mother is in possesion of the property-Katha,electricity bills and water bills.

Should we go to the court and probate?...By giving necessary Court Fee/ Stamp Duty,the Will of your deceased father is required to be certified under the seal of a Court of Law of competent jurisdiction with a grant of administration in your mother's favour of that  2000sq.ft. property of your deceased father and if Executor / Executrix's (the person/s who will apply for it before the Court of Law) name is mentioned in that Will then  the copy of that Will certified under the seal of the Court of Law is called Probate and if in that Will nothing has been specified regarding the person who will apply for such certification from the Court,then your mother as beneficiary thereof has to apply  before the Court of Law for Letters of Administration.It is necessary on the part of your mother to apply for Probate/Letters of Administration of that Will because it is necessary under Hindu Law.

And definitely childrens of 2&3 wives will challange the will...

....At the time of applying the probate notice is required to be given to all the eight children of your deceased father (who along with your mother as the legal heirs and heiresses of your deceased father would inherit the property if there was no Will ) and thereafter following the process of Law(either contested or uncontested manner) the matter will be disposed of and if the Will's contention will be proved then your mother will become the sole Owner of that 2000sq.ft. property and thereafter Second and Third wive's children can't claim any share therein.

 

In such circumstance will the 2&3 wive children get share ?.. If the Will is registered in proper manner,then children of second and third wives  usually cannot get share therein. 
Will the court reject their plea and approve the will ?..Very likely

And other point is second wife 2 children have already got 1200 each in this property.

 

 

 



 

 

Virtual Legal Assistant (.)     09 June 2020

Hello Prabhakar Reddy Sir,

Probate of will is a legal process in which the court of appropriate jurisdiction certifies the authenticity of the will under their court seal and hands it back to the executor. Though not every will needs to be probated, it is advisable to do so to ensure that the acts and deeds performed by the executor of the will can not be challenged at a later date.

As mentioned above by the experts, the personal laws of succession vary based on the personal law applicable to the deceased.

You may refer to the following articles which will be able to help you better

https://www.lawyersclubindia.com/articles/succession-laws-6047.asp

https://www.lawyersclubindia.com/articles/nomination-wills-and-succession-8922.asp

Prabhakar Reddy   10 June 2020

Hi Rohan and Sinjari,

Thanks for your responses-

So the this is the final picture-Yes as you told probating the will is required-

Please have my below points-

In total 10000 sq feet-

When my father was alive he sold 6000 sq feet execuitng sale deed

1000 sq feet in second wife first daughter by way of  gift deed

1000 sq feet in second life third daughter by way of gift deed

2000 sq feet in first wife name by way of a registered will

Second wife second daughter has filed in the court for partition of the property which was in her father name.

Third wife has joined in this case and even we the first wife members have joined the case and we have produced all our documents in the court.

But the court proceeings is going on very slow 

my questions here is-

What rights and share will the second wife second daughter will get as she has filed for partition ?

and what will the thir wife children get?

As the 6000 sq feet is already sold will the court consider the remaining property which is in my mothers name through will?

6000 sq feet is sold

2000 given as gift deed to second wife 2 children

2000 given by will to first wife 

on what basis will the court do partition for second wife second daughter plea?

In this circumstance how can i safe guard my property which is in my mothers name,

My mother obtained the said 2000 through a registered will in the sub registrar office, is this safe ?

 

Please advice

 

Sinjari Bandyopadhyaya(Banerje (Lawyer 9830019661 Kolkata WB)     10 June 2020

Originally posted by : Prabhakar Reddy

Hi Rohan and Sinjari,

Thanks for your responses-

So the this is the final picture-Yes as you told probating the will is required-

Please have my below points-

In total 10000 sq feet-

When my father was alive he sold 6000 sq feet execuitng sale deed

1000 sq feet in second wife first daughter by way of  gift deed

1000 sq feet in second life third daughter by way of gift deed

2000 sq feet in first wife name by way of a registered will

Second wife second daughter has filed in the court for partition of the property which was in her father name.

Third wife has joined in this case and even we the first wife members have joined the case and we have produced all our documents in the court.

But the court proceeings is going on very slow 

my questions here is-

What rights and share will the second wife second daughter will get as she has filed for partition ?...Is it the ancestral property of your father? If yes then that sale can be challenged by his legal heirs and heiresses and second wife's second daughter is entitle to claim partition.Please take note that Second and Third wives can't join that Partition Suit because those marriages are illegal,however,their children (although illegitimate)can claim partition to the ancestral property of their father after the death of their father.

and what will the thir wife children get?... The Third wife can't join that Partition Suit (if the property is ancestral) because that marriage is illegal,however,her children (although illegitimate)can claim partition to the ancestral property of their father after the death of their father.

As the 6000 sq feet is already sold will the court consider the remaining property which is in my mothers name through will?....An ancestral property is one which is being transferred from four generations of male lineage  without any division so if it is the ancestral property of your father ,then  all his children and his first wife will be entitled to claim partition over the entire 10000 sq.ft. 

6000 sq feet is sold

2000 given as gift deed to second wife 2 children

2000 given by will to first wife 

on what basis will the court do partition for second wife second daughter plea?

In this circumstance how can i safe guard my property which is in my mothers name,

My mother obtained the said 2000 through a registered will in the sub registrar office, is this safe ?

Please advice

 
 

 

P. Venu (Advocate)     11 June 2020

The original was by Philomia, subsequent clarification by Prabhakar Reddy . What is mystery? Does the original posting and subsequent clarification pertain to one and the same case/property? If so, which is the personal law applicable - Hindu Succession Act or Indian Succession Act?

Prabhakar Reddy   11 June 2020

Hi Sir,

Yes the original post and subsequent posts belong to the same property-same members

Philomina is my mother-The first wife-The owner of the remaining 2000 sq feet acquired through a registered will.

From the above discussions i collected points as below:

The final registered will which is done in my mothers name cannot be challanged by the second and third wife and their childrens as this is a not a ancestral property and my father when he was alive had powers to execute the property and he has done through a registered will in first wife name.

The partition suit filed by the second wife daughter remains invalid as-partition suit can be filed only on ancestral property and property which remains intestate,--If am not wrong.

The further hurdle here is in the said 2000 remaining property is a house in first wife name acquired through will,

The katha is in my mothers name,current bills-water is in my mothers name,

But the third wife is acquired a small portion a small room and she is staying there,

Please suggest how to vacate her from the house.

 

P. Venu (Advocate)     11 June 2020

You are yet to clarify the personal law applicable.

Prabhakar Reddy   11 June 2020

Hi Sir,

I dont know which law should be applied in these both-Hindu Succession Act or Indian Succession Act?

We are following hindu traditions and my mother is also doing the same-

What advantages do we if wefollow any one? 

Virtual Legal Assistant (.)     12 June 2020

Greetings,

According to the above facts, Hindu Succession Act 1956 will operate in the present case, as the family is following Hindu traditions.

Firstly we have to understand that when a division or a partition happens in a joint Hindu family, it becomes “self-acquired" property in the hands of a family member who has received it. So the disputed property is deemed to be self-acquired.

If the property is self-acquired, you may transfer it to any person via Will as you may deem fit at your sole discretion. Hence Stepchildren cannot revoke the mentioned registered WILL.

Under the Hindu Succession Act 1956, 'stepchildren' have no legal right to self-acquired property, unless you specifically bequeath a share to them under your Will.

In my opinion, you should contact the police immediately and file a complaint against the third wife, thereof being a victim of encroachment or trespass.

 


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