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Illegitimate son claim share in ancestral property

Shivendra Pratap Singh

Advocate

07/07/2021

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Question: 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?

Question from: Madhya Pradesh

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.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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