Home | Legal Advice | Property Law | Illegitimate son claim share in ancestral property

Illegitimate son claim share in ancestral property

Shivendra Pratap Singh



Reading Time:

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


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

More For you

Appeal against dismissal of interlocutory application

Question: Appeal against dismissal of interlocutory application. My Grandparents had 7 children and among them 4 sons and 3 daughters. Joint family property is around 130 acres which was divided among all family members under Registered Family Settlement (RFS) in 1972...

Sale deed time out

Question: We had sold our land to a company back in 2018. He kept delaying registration but he paid us in instalments. We have around 70% of the total amount but we haven't been in touch for the last 2 years. We have filled our presence in tehsil on the last decided...

Can husband gift mother’s property to his second wife?

Question: Can husband gift mother’s property to his second wife? My husband married me after his divorce. He has a daughter from his first marriage and is living with her mom. I have also a daughter. My question is that if my husband gift me his mother's property to...

Can a Builder charge interest on Maintenance?

Question: Can a Builder charge interest on Maintenance, Maintenance security deposit, Prime lending charges (PLC), and Documentation charges? The property was already built and ready to move. But due to a delay in payment, I had not taken possession yet.  Although I...

Recovery of money from elder brother

Question: My elder brother and two sons took a loan from me for agricultural land development and my brother gave surety for that amount. Later my brother's sons did not return money so went into court and in court my brother agreed that “he needed to pay money for my...

Buying property without home loan 

Question: I have booked a flat for Rs. 51000 in Badlapur, Maharashtra. The price of that 1 bhk is 28 lakhs. I am buying that property without a home loan. The builder said you will get possession till the end of July 2022. But the housing website is showing June 2023...

How to recover possession of my land?

Question: Buyer has illegally encroached on my grandfather's property. In this condition please suggest how to recover possession of my land? I am fighting for my grandfather's property. My Grandfather has agricultural land of about 17 acres. In 1988 my grandfather...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.