The father had opposed the plea claiming that since the property is not self acquired but joint family ancestral property, the daughters and their mother cannot claim their stake.
The Bombay High Court on Monday, came to the aid of two daughters, who along with their mother were thrown out of their house by the father. He even tried to pass on their share of the ancestral joint family property to his two sons born out of a void marriage (second marriage). The court granted them equal rights in the ancestral property.
Justice Shalini Phansalkar Joshi rejected an appeal filed by the father, the second wife and the two brothers, against an order passed by a civil court in Nashik for the two married daughters and the first wife, allowing one fourth share each to the daughters and their mother, in two land parcels.
The father had opposed the plea claiming that since the property is not self acquired but joint family ancestral property, the daughters and their mother cannot claim their stake. They would only be eligible for share in his self acquired property if at all, as per the Hindu Succession Act.
However, the husband did not deny the fact of the daughter having born out from his wedlock with his first wife. He also did not deny that he had married second time, during the subsistence of his first marriage.
Justice Joshi, relying on several Apex court judgments and the provisions of the Hindu Successions Act, held “the legal position, which stands as on today, is that, the children born to the second wife, who are rightfully called as ‘legitimate’, their right to get share in the property is, however, restricted only to the property of their parents and not to the joint family properties. Here in this case, both the properties are ancestral joint family properties.”
Further it stated: “The court rightly held that the first wife and two daughters, will get 1/4th share each in the suit lands. Accordingly, the husband will also get 1/4th share in the property. The sons can get only by way of succession, in the 1/4th share of their father on his dying intestate. As far as the present suit is concerned, they cannot be entitled to any share in the suit properties.”
THE CASE
- The 1st marriage took place in 1975. The 1st wife was driven out of the house after eight years.
- Now, both daughters are married. They along with their mother filed a suit in Niphad court in 2002. The court had granted share in the property to them, which was challenged in the HC.
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