Hindu Succession Act | Children Born From A Widow's First Marriage Can Inherit Property From Her Second Husband: Gujarat High Court

The brief facts of the case were that the original owner of the property Makhanbhai Patel, named his wife Kunvarben as one of the heirs in the property, along with his two sons. The same was entered in the revenue record as well, in 1982. Subsequently, Kunvarben, executed a Will for undivided share in the land in favour of widow of her son from her previous marriage. The instant Petitioners were the heirs of the daughter-in-law who were claiming their share in the property after the death of Kunvarben.

Since the Mamlatdar and the Deputy Collector had failed to mutate the property in their names in the revenue records, they were compelled to agitate before the High Court. The Petitioners primarily contested that Kunvarben had become the absolute owner of the property and had a right to distribute it according to her wish. Further, the heirship was not challenged by any party in 1982 and therefore the revenue authorities ought to have made the entry as per the Will.

Per contra, the AGP averred that civil rights under the Will could only be decided by the Civil Court.

The Bench observed that Kunvarben was earlier married with another person and her son was born out of such wedlock. She later re-married with Makhanbhai. As per her Will, Respondent No. 5 and 6 were born out of the wedlock with Makhanbai. She therefore distributed her property in three parts- one for the daughter-in-law of her dead son from previous marriage and the remaining in favour of her sons born out of wedlock with Makhanbhai. The Respondent No. 5 and 6 insisted that since the property was ancestral, it could only be mutated in their favour.

To address this dispute, Justice Thaker relied on Rama Ananda Patil v. Appa Bhima Redekar and Others to opine:

"…that there is no warrant to assume that the Legislature intended to deprive the sons and daughters or their children from inheritance of the property left by a female Hindu dying intestate merely because they were born to her from some to other husband than the one from whom the property in dispute was inherited by the female Hindu."

Relying on Sec 15(2)(b) of the Act, the Bench interpreted the term 'son or daughter of the deceased' to mean the son or daughter of the female dying intestate without regard to the fact as to from which husband they were born to her. Under the proviso, the term 'related' in Section 3(1)(3) of the Act, even illegitimate children were deemed to be related to their mother for the purpose of the Succession Act.

Considering these provisions and precedents, the Bench held that the Petitioners were entitled to 1/3^rd undivided share in the property by way of the Will. The decision of the Revenue authorities was held as unsustainable in the eyes of law and set aside.

Case Title: HEIR OF NIRUBEN CHIMANBHAI PATEL v/s STATE OF GUJARAT

Case No.: C/SCA/14382/2019

Citation: 2022 LiveLaw (Guj) 244