Share Of Second Wife And Her Children In A Property

After his first wife's death, Mohan Sharma remarried Alka Sharma and had two sons. Kirti Sharma is Mohan's only daughter with his first wife, who is now married. So, what will be her share in her father's property after his demise? Given that she does not enjoy a good equation with her stepmother and half-brothers, she is eager to understand what her rights are.

As per the Hindu Succession Act, 2005, a daughter has every right on her father's ancestral property. In case she is not allowed the rightful share, she can move the courts, too. In Kirti's case, her stepmother and her sons are the coparceners and have a rightful share in their father's property, considering her father legally married the woman. Mumbai-based advocate at the Bombay High Court Ajay Sethi says, “On the father demise intestate, you would have one-fourth share in his self-acquired properties. You cannot claim father's self-acquired properties during his lifetime.”

Pradeep Bharathipura, who practicing at the Karnataka High Court, places his opinion in a similar case, “As far as self-acquired property of your father is concerned, he can dispose of the property according to his will, and you have no right to claim that property. But if your father died interstate, you are entitled for share in the self-acquired property.”

“As far as ancestral property is concerned, you have a share in the property and you can claim it anytime during the lifetime of your father or after his death also,” he adds.

As per the law, in case a person dies interstate, his property moves or can be claimed by his Class-I heirs that include:

• Son
• Daughter
• Widow
• Mother
• Son of a predeceased son
• Daughter of predeceased son
• Widow of predeceased son
• Son of a predeceased daughter
• Daughter of predeceased daughter
• Son of predeceased so of predeceased son
• Daughter of predeceased son of a predeceased son
• Widow of predeceased son of a predeceased son

In the absence of the above, the property moves to the Class-II heirs that include:

• Father
• Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister
• Daughter's son's son, (2) daughter's son's daughter, (3) daughter' daughter's son, (4) daughter's daughter's daughter.
• Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.
• Father's father; father's mother.
• Father's widow; brother's widow.
• Father's brother; father's sister.
• Mother's father; mother's mother
• Mother's brother; mother's sister.

In the case of a legal second marriage, the property can be claimed by children of the second wife, too. However, if it happens when the husband has not divorced his previous wife or the wife is living and the man remarries, the second marriage is taken to be null and void. The children born of this second union must be maintained by the parents but they are not preferred inheritors or coparceners.

However, the Supreme Court has opined that children born of a second marriage can claim father's property even if the marriage itself might be void. But, the second wife cannot claim the property in case the marriage was solemnized when the first wife was living or wasn't divorced. 

Second wife’s children’s right to father’s joint property

While children born of the second wife have right on their parent’s property, they do not have a direct right on the joint ancestral property, especially if the second marriage occurred without divorcing the first wife. The children are, however, understood to be legitimate and can be coparceners in father’s ancestral property if he dies intestate.

In recent case hearing in the Bombay High Court, where the father had married for a second time after ousting his first wife and her daughter, the court directed that they should receive their rightful share of property in the man’s ancestral property. Therefore, one-fourth of the land was shared between the first wife, her two married daughters and the man.

What happens when two wives claim the share?

In a recent judgement, the right of the first wife was upheld.

Sheetaldeen (husband) was deserted by his first wife Sukhrana Bai and thereafter he married Vidyadhari with whom he had four children. Sheetaldeen had made Vidyadhari his nominee and all benefits that came out of his employment was reserved for her. She could also claim succession certificate for her four children. However, when both wives filed succession certificates, after Sheetaldeen's demise, while the trial court was in favour of the second wife, the Madhya Pradesh High Court favoured the first wife.

On further appeal, it was decided that the first wife would be given one-fifth of the property share. The four children too got their legitimate share but the second wife had to forgo her share because, in the eyes of the law, Sukhrana Bai was the legitimate wife who was not divorced before Sheetaldeen remarried.

Also read: Hindu Succession Act: These Persons Cannot Inherit Property