What are the property rights of the children of the second wife?

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  • Опубліковано 3 чер 2024
  • The children of the second wife have the same rights as the children of the first wife. All the children of a man fall into the Class-1 heir category and enjoy equal share in his ancestral property
    Hon’ble Court formulated its conclusions in the following terms:
    The Court observed that provisions of the HSA have to be harmonized with the mandate of Section 16 of HMA.
    In doing so, the Court observed that a child who has been conferred with legitimacy by Section 16 of HMA, would fall within the ambit of the explanation ‘related by legitimate kinship’, under Section 3(1)(j) of the HSA.
    Section 6 of the HSA provides for the devolution of interest in coparcenary property. In terms of Section 6(3), upon the death of a Hindu his interest in the property of a Joint Hindu Family governed by Mitakshara Law will devolve by testamentary or intestate succession and not by survivorship.
    Section 6(3) of the HSA postulates a legal fiction that the coparcenary property shall be deemed to have been divided as if a partition had taken place before the death of such a Hindu. Therefore, for ascertaining the interest of a deceased Hindu coparcener in a coparcenary property, law mandates assumption of a state of affairs immediately prior to the death of such coparcener.
    Now, once the share of the deceased in the coparcenary property is ascertained, his legal heirs include children who have been statutorily conferred with legitimacy under the HMA are entitled to a share in such property as determined by the legal fiction prescribed under Section 6(3) of the HSA.
    In summary, the first step in determining the entitlement of a child from an invalid marriage is to ascertain/crystalize the share of his/her parent in the coparcenary property. The aforesaid determination could be done by conducting a ‘notional partition’ as per Section 6(3) of the HSA. Once the share of the parent is ascertained, all the heirs, including children of a ‘void’ or ‘voidable’ marriage, as the case may be, would be entitled to a share in their parents’ property.
    The Hon’ble Court however expressly clarified that the said observations are limited only to Joint Hindu families governed by Mitakshara law.
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