Rights

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.

"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.

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.

@ 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.

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

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

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?

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.

You are yet to clarify the personal law applicable.

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? 

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.