Can an illegitimate son claim his share in his father’s ancestral property? My father has solemnised second marriage in hush-hush. We came to know about his illegal marriage after sixteen years. Then my mother left our home and started living in her parents' home. We are three siblings and all are living with our grandfather. My father died in 2018 and my grandfather died in 2020. Soon after the death of my grandfather, the illegitimate son of my father has filed a civil suit for partition of ancestral property. The court has accepted that suit. What remedy do we have to protect our property?
He is a legitimate child according to section 16 of the Hindu Marriage Act. Section 16 says that a child born out of void or voidable marriage is a legitimate child. But here, we refer to him as an illegitimate child.
In Rajesh v. Keshar Singh [ILR (2012) MP 951] the Madhya Pradesh High Court has held that under Section 16 of the Hindu Marriage Act, 1955, the children born from the void or voidable marriage shall be the legitimate children.
Can illegitimate children claim share in father’s ancestral property?
Yes, illegitimate children are entitled to get a share in their father's ancestral property. Section 16(3) of the Hindu Marriage Act entitles them to get rights in father’s property. That property may be an ancestral or self acquired or both. There is also a limitation under section 16(3) HMA that the illegitimate child has such rights in his father’s property only.
In Revansiddappa & Ors v. Mallikarjuna & Ors, (2011) 4 SCR 675 the Supreme Court has held that under the Hindu Marriage Act an illegitimate child is entitled to get rights in his father’s self acquired and ancestral property.
Your grandfather died in 2020. After his death the ancestral property will devolve upon his legal heirs. Your father was the legal heir. The portion of property which your father gets if he would have been alive, that property will be devolved upon you and your father’s illegitimate child.
Thus the civil suit is valid and you cannot deprive him from his rights in the ancestral property. He has the right to divide the ancestral property which you got after death of your grandfather.
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Can I protect myself from being roped in a false criminal case? My wife is planning to file a false criminal case against me. She does not want to live with my joint family and is forcing me to transfer to another city. I am working in a PSU Bank and have a possibility to shift to another city. But my parents need my support hence, I don’t want to transfer from here.
My in-laws are suggesting my wife to leave the joint family and go to any metro city to live a good life. They are very influential and dominate my wife to follow their suggestions. She starts quarreling on petty issues and tempts me to do any violence or criminal act. I am very worried about my future because she has an intention i.e. send me to jail. Please help!
You should arrange a meeting with your in-laws for amicable settlement of dispute with your wife. Engage in that meeting some elder persons or family members from both sides. Put forth all the issues and misunderstandings and ask them to give an amicable solution.
You must state the behaviour of your wife and her demand to settle in another city. Also unveil the undue interference of your in-laws and their dominating behaviour. Don’t hide anything in that meeting. You should not give any solution thereof. Let the members devise a peaceful solution to all these disputes.
Also read: What to do against the false allegation
Thereafter, your wife cannot file a false criminal case arising out of the current matrimonial acrimony. When she would have an opportunity to express her grievance in that meeting thereafter she would not mingle the fact so as to fabricate a false criminal case. You can pray the High Court to quash the criminal proceeding if your wife files any false criminal case. Court always appreciates the parties to do amicable settlement of their dispute.
My name is XXX from Bangalore. I have six sons and four daughters. All are married and settled in different parts of India. My youngest son takes care of us and he is very nice among all of them. Can I gift self purchase property to only one son by excluding others. Whether all remaining children’s signatures are required for a gift deed?
Father is the absolute owner of his self acquired property therefore, he can gift his self acquired property to his one son by excluding other children. The other children cannot object to the gift deed because they have no right to interfere in the father's self purchased property.
In C.N. Arunahcala Mudaliar v C.A. Muruganatha Mudaliar, [AIR 1953 SC 495] the Supreme Court has held that the father has absolute right in alienation of his self acquired property. His male descendents cannot raise any objection against the alienation.
Your children cannot claim partition or any right in your self acquired property unless they have contributed in purchase of that property. When your children have contributed in purchase a property that is not your self acquired property. If you have purchased a property out of your own income or resources then it is your self acquired property and no one will interfere therein.
A man has absolute right under the Hindu Law to dispose of his self-acquired property in any way he chooses.
Vadrevu Sankaramurthi And Another v. Vadrevu Subbamma
Legal requirement of gift deed
Transfer of property from its owner to another person without consideration is a gift. When the donee accepts the property gift is complete. Thereafter, ownership vests in the donee. According to section 123 of the Transfer of Property Act, a gift of property value more than five hundred rupees must be
- Signed by or on behalf of the donor
- Registered
- Attested by two witnesses
Once the gift becomes complete you cannot cancel the gift deed. An unregistered gift deed has no legal value and donee cannot claim ownership on the gifted property.
We married 12 years ago and we have a 10 years old son. Our marital relationship is not good and my wife quarrels with my mother. She wants my mother don't stay with us. During the quarrel she spoke awkward words, abused, and raised hand on me. One day she called the police and I spent 4 hours at Mahila Thana. We can not stay together. She is willing to file a false case for getting divorce.
Such an act of your wife constitutes cruelty. A husband can seek divorce on the grounds of cruelty of his wife. Section 13 of the Hindu Marriage Act recognises cruelty as a ground for divorce. Simple trivialities between spouses do not amount to cruelty.
In Dr N.G Dastane v. Mrs S. Dastane. 1975 2 SCC 326 the Supreme Court In many marriages each party can, if it so wishes, discover many causes for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.
For seeking divorce on the ground of cruelty, the nature of cruelty should be dangerous. The nature of the cruelty should be such as to cause reasonable apprehension in your mind that it would be harmful for you to live with your wife.
Your wife has called the police on a quarrel. You spent four hours in Mahila Thana. This incident proves that she can create a big incident which may have a drastic effect on your life.
File a divorce petition
You can file a divorce petition on cruelty. Court can assess the amount of cruelty in regard to the social status of a spouse. A person of good repute feels immense humiliation during the captivity of a police station.
In V. Bhagat v. D. Bhagat 1994 1 SCC 337 the Supreme Court has held that mental cruelty in section 13(1)(i-a) of the Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.
The circumstances of your case suggest that your wife may rope you in a false criminal case. Therefore, you can easily prove that due to the cruelty of your wife you cannot live together. The court will grant divorce decree upon the proof of cruelty.
Builder cheated by making a false promise of giving possession in November 2022. However, possession is expected in 2025. I have booked an apartment in Chennai. During my site visit, I was welcomed by a salesperson who explained to me details about the project and showed me a timeline saying that the property will be handed over to me at 2022 November. I also have an email from the same timeline. Hence i paid the advance amount of 1 lakh and later paid a booking charge of 6.25l.
Now, as per their payment pattern, they want me to pay 50 percent of the flat rate for the agreement stage. And they were stressing me to pay out the 50 percent which is 37 lakhs within a month of my booking or else i will have to pay a penalty. As i have planned to buy this house on a home loan and due to the current pandemic situation, it's taking time.
They were not willing to give me time and asked to pay my part of the amount which is rs. 13 lakh in a week. I even paid 3 lakhs. As i got stressed out, i started exploring the project details in rera where i found that the given time for completion of the project is 2025 august which is 3 years from the planned timeline which they have provided to me.
When I asked about the same, the answer was, it's like that in RERA but we will complete it by 2020 November. Now, they have drafted an agreement and as my loan is about to be sanctioned. I thought of signing the agreement and when i checked the same, even in the agreement the time mentioned is august 2025.
Now I don't want to get into this project anymore. I have not signed the agreement yet. I just want to know whether i would get my refund of the amount (10.25L) that i have paid if i back out now because of their false promise.
You have evidence (email) that the builder was promised to give possession in November 2022. But at the time of booking the builder knew that the actual time for completion of the project is 2025. Builder had the intention to cheat therefore, made a false promise and induced you to book the flat.
You have a right to cancel the booking and claim a refund of the entire amount with interest. Section 18 of RERA gives such a right to buyers. Furthermore, Section 19 of RERA empowers the buyer to know the stage-wise time schedule of completion of the project. Hence, time is the essence for real estate projects.
File a complaint in the RERA authority
The builder has concealed this important fact and fraudulently took money from you in the form of a booking amount. There is a fault on the part of the builder/promoter. Thus you have a right to exit from the project and claim a refund from the builder.
From the above mentioned material facts, it is revealed that Promoter has failed to give possession as per due date to Allottees and Allottees demanded the refund. Promoter is liable to refund the amount along with interest as per Section 18 of RERA as Allottees decided to withdraw from the project.
Mrs. Jyoti K. Narang,Mr. Kishore L. Narang v. CCI Projects Pvt. Ltd
You should file a complaint before the RERA Authority under Section 18 & 31 for the refund of money. You have sufficient evidence to prove the cheating of the builder and his inability to give possession of the flat in November 2022. This evidence is sufficient to claim refund of money with interest.
I want to know whether the signature of a witness is required to probate a notarized will. I purchased a property and the owner left me a notarized will. He gave me the right for transfer, sale, mortgage. Her legal heir (2 sons) have no intention to get that property. Her 2 sons are the only witness of the will. One son has died.
My question is, can I the sole executor can probate the will with a death certificate? Will I require a witness's signature ? I am worried that the witness who is also the legal heir can refuse to be a witness or even ask money to testify when probating the will ?
You are a sole executor of the will and probate is mandatory in the State of West Bengal. Thus you should file a petition in the court of the District Judge for the grant of probate. You have to produce in the court the original will and death certificate of the testatrix.
The court will issue a notice to the legal heirs of testator/testatrix (maker of will). In your case, the legal heirs of the testatrix are the witnesses. They have attested the will and they never raised any objection about the authenticity of will.
Whether signature of witness is required for probate
Signature of witness is not required for the filing of a probate petition. You are an executor of the will therefore, you should take a probate. You are not bound to produce the signature of witnesses. File a probate petition along with these documents:
- Original will
- Death certificate of testator
- Court fee
- Name and address of testator’s legal heirs
The legal heir cannot ask money for verification of will. This will is already registered and attested in the due course of law. Therefore, it proves that the will is genuine. If there is any doubt or suspicion the legal heir will raise an objection. When the court will notice the legal heir then he can either accept the will or raise an objection. In case of objection the court will convert the probate petition into a regular civil suit.
We have around 20 houses built in Industrial Alienated Land, and only 3 industries are running around our area. Now one of the industry people is building a new building where he was doing business by demolishing the old building. As we residents are disturbed by the industry we have complained to the panchayat stating not to allow the construction in the residence area.
But now the industry person is filing a complaint against us stating that this is industrial land and we are illegally constructing houses and causing inconvenience to the industry. Is there any way they can harm us legally? We have been residing there for the past 10 years. Our houses do not have set back and some of us have left 1 feet. Whereas the industry building is very huge around 100 m x 80 m and they have left only 5 feet set back, but they have got the same approval from the panchayat.
Will they trouble us for not letting us set back. Is there anything that can be done to fight back and will they trouble us?
If you have proper permission to erect residential buildings in the industrial area then your right is protected. The development authority reserves some portion of land in industrial areas for residential purposes. All industries have a fixed area for residence for its workers and officers. So it is not a rule that there should be no residential construction in industrial areas.
All this is dependent upon the planning and development of the industrial area. You have valid legal rights in your property because you are the owner. If there is no illegality in erecting residential accommodation the government, panchayat or local body is duty bound to protect your property from undue interference.
File a writ petition
You have already complained to the panchayat so wait a while for any fruitful outcome. If you get no relief from the local body (panchayat) then you should approach the High Court under Article 226 to issue a mandamus writ. The High Court has power to direct the local body to provide adequate protection to the property of petitioner and eliminate undue interference thereon.
You have been living there peacefully for more than ten years. No notice for illegal construction has served upon you. As well as no government action has been taken against your property. It proves that it is a legal construction. Don't panic for the setback area. However, It is a breach of approved plan but it is a compoundable offence. The concerned authority may declare the construction legal upon receiving a compounding fee.
Can my sister sue my children for partition of ancestral property? I got the land from my father but I have given it to my children. We are two brothers and one sister. I’m the youngest. After the death of my father his property devolved upon me and my brother. I have transferred those properties to my children. Now can my sister put up a case on property written to my children?
Yes, your sister can sue your children and you for getting share in the ancestral and self acquired property of the father. Your father died intestate i.e. without any Will (testamentary will) hence, all legal heirs are entitled to inherit his properties.
However, you did not give full information about the facts but I suppose that you have inherited your father’s self acquired and ancestral property. Your sister has the right in both properties.
Self acquired property
The facts suggest that there are four legal heirs of your father’s self acquired property. Your mother, brother, sister and you are the legal heirs. All legal heirs will get equal share i.e. ¼ share each, in your father’s self acquired property.
According to the Hindu Succession Act, 1956 son, daughter and widow are the Class I heir towards the self acquired property of the deceased. The Class I legal heirs have the first right over the self acquired property. Thus you cannot accumulate property by excluding other Class I legal heirs.
Ancestral property
After the amendment in the Hindu Succession Act 1956, the daughter is also a coparcener. She has the right in the ancestral property as equal as to the son. The ancestral property devolves upon the coparceners only. No other person has any right in the ancestral property.
Thus you cannot refrain your sister from the ancestral property because she is a coparcener. In the Vineeta Sharma case the Supreme Court has held that a daughter has the right in the ancestral property by birth.
Your sister can sue your children
After your father’s death his property had devolved upon his legal heirs. His ancestral property had devolved upon his three children. His self acquired property had devolved upon his wife and three children.
I use “had” because the property automatically devolves upon the legal heir. A property cannot remain without an owner for a single second.
You have the right in ancestral property to the extent of 1/3rd share and 1/4th share in self acquired property (if your mother is alive). If the property in the hands of your children is more that the above said limit then your sister can sue your children.
Can my sister claim share in ancestral property after partition? My father died in 2010. Thereafter, I have partitioned the ancestral property on mutual agreement of brothers. I have two brothers and one sister. Only brothers got share in ancestral property. I want to know whether my sister can claim share in ancestral property after partition. Brothers have no dispute in partition. After the partition I want to transfer this property to my son.
I think there is no ground to challenge the partition. Once the brothers have mutually partitioned the ancestral property my sister has no right to claim. Can my son sell all property to another person and purchase a new land in his name? This may protect my son’s right.
In Hindu law, daughters have the same rights as sons to inherit ancestral property according to the Hindu Succession Act, 1956. This means that a daughter has the same rights as a son to inherit the ancestral property as a coparcener, which is a member of a Hindu joint family who has an equal right to the property and its management. However, this right only applies to ancestral property, which is property inherited from the father, grandfather, or great-grandfather.
Now, if the father dies without making a will, the ancestral property devolves upon the coparceners. Hence, according to law, the ancestral property has also devolved on your sister because she is one of the coparceners. But if you partitioned the ancestral property with the intention to grab your sister's share, then that partition is invalid and has no legal effect. This kind of partition is an example of a shady partition with ulterior motives to frustrate the legal provision.
Moreover, in the Vineeta Sharma case, the Supreme Court has held that a daughter by birth acquires rights in the ancestral property. Therefore, the daughter can regain her share even after the notional partition. If you partitioned your share and gave nothing to your sister, this alienation is only to protect your share because you think that after the partition, your sister will not claim her right.
However, this is a wrong assumption because the initial partition is invalid. You had no right to do a notional partition, and Section 6(3) of the Hindu Succession Act 1956 specifically bars such a partition. You cannot prevent your sister from claiming her share because she has the right even after the partition.
Therefore, if you grabbed your sister's share and orally divided the property among sons only, this is illegal and violates the provision of Section 6(3). The partition is illegal ab initio, and any subsequent transfer will not give a good title. Your sister can still claim her share even after the partition.
The Hindu Succession Act, 1956, provides for the rights of Hindu daughters in ancestral property. According to the Act, daughters have the same rights as sons to inherit ancestral property as coparceners.
A coparcener is a member of a Hindu joint family who has an equal right to the property and its management. Prior to the amendment of the Hindu Succession Act in 2005, daughters did not have the right to be coparceners and could only inherit property as a limited owner. However, after the amendment of the act, daughters have the same rights as sons to inherit ancestral property as a coparcener.
It's important to note that the right to inherit as coparcener applies only to ancestral property, which is property that has been inherited from the father, grandfather, or great-grandfather. Property that has been acquired by a person through his or her own efforts or through a gift or will does not fall under the category of ancestral property.
Daughter has right in ancestral property by birth
The Supreme Court has held in the Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1; that daughter gets right in the ancestral property by birth. She will get share in the ancestral property even if her father has died before the 20th September 2005.
There was a contradiction in the two judgments of the Supreme Court. In Prakash & Ors. V. Phulavati & Ors., (2016) 1 SCC (Civ) 549, the Supreme Court has held that if the father has died prior to 20-09-2005 his daughters would have no right in the ancestral property.
But the decision of Prakash vs Phulavati case has been overruled by the Supreme Court so far as relates to the timing of father's death. In Danamma @ Suman Surpur vs Amar (2018) 3 SCC 343, the hon’ble court gives judgment that daughter will have right in the ancestral property however, her father died before 20-09-2005. The court held that right of daughter is absolute and unconditional.
20-09-2005 is the date of enforcement of Hindu Succession (Amendment) Act 1956. This amendment Act provides that daughter will also be a coparcener thus she is entitled to get share in ancestral property.
When a contradiction arose in respect of when the daughter shall get share in the ancestral property, the Supreme Court (Justice, Arjan Kumar Sikri) has sent the Vineeta Sharma case before the full bench (three judges bench) to settle the law on this issue.
Judgment of Vineeta Sharma
Vineeta Sharma v. Rakesh Sharma is a landmark judgment of the Supreme Court of India which dealt with the rights of a daughter in the ancestral property. The case was heard by a three-judge bench of the Supreme Court and the judgment was delivered on August 10, 2020.
The case involved a dispute between the daughter and the son of the deceased over the inheritance of the ancestral property. The daughter, Vineeta Sharma, claimed that she had a coparcenary right to the property under the Hindu Succession Act, 1956, whereas the son, Rakesh Sharma, claimed that the property was his exclusive property.
The Supreme Court in its judgment held that the daughter has the same rights as a son to inherit the property of her father or grandfather as a coparcener. The court further held that the amendment to the Hindu Succession Act in 2005, which granted daughters the same rights as sons to inherit ancestral property, applies retrospectively to all living daughters of a coparcener as on 9th September 2005, regardless of when their father or grandfather died.
This judgment was a significant development in the rights of daughters in the inheritance of ancestral property in India, as it clarified that daughters have the same rights as sons to inherit ancestral property and that the amendment applies retrospectively to all living daughters.
