But High Court gives one-third share of father’s property to such a son, citing law

The Madras High Court has held that a child born to a Muslim couple before their marriage cannot be considered as a legal heir and consequently not entitled to a share in the biological father’s property.

However, the court permitted one such descendant to walk away with a lion’s share of his father’s property on the ground that the latter was entitled to bequeath one-third of his property to strangers as per Muslim law.

Justices R. Subbiah and P. Velmurugan passed the ruling while disposing of an appeal suit preferred by the second wife of Mohammed Ansar, a former employee of Southern Railways.

The appellant was aggrieved against an order passed by a lower court in favour of two daughters born to her husband through his first wife though he had left behind a will bequeathing his properties only to the second wife and her three children.

Will made in 1978

Resolving the dispute between the parties, the judges noted that Mr. Ansar had married his first wife in 1946 and gave birth to two girls who were married in 1962 and 1967 respectively. Subsequently, his first wife died and he married another woman in July 1969.

The couple begot a son three months before their marriage and gave birth to another son and a daughter after their marriage, in 1972 and 1974 respectively. The former railway employee executed a will in February 1978 bequeathing all his properties to his second wife and her three children and died in October 1981.

Pointing out that Muslim law states that an “illegitimate child is considered to be the child of its mother alone and as such it inherits from the mother alone,” the judges held that the first son born through the second wife of the deceased was not entitled to inherit his father’s property.

However, writing the judgement for the Bench, Mr. Justice Velmurugan pointed out that the same Muslim law permits a Muslim to bequeath one-third of his property to strangers.

Therefore, the judges ordered that the “illegitimate son” in the present case would be entitled to 20 out of 60 portions of his father’s properties since the genuineness of the registered will had not been disputed by the daughters born through the first wife of the deceased.

Shares to all

Observing that a Muslim could execute a will only with respect to one-third of his property and bequeathing more than that would require the legal heirs’ prior consent, which had not been obtained in the present case, the judges held that each of the two daughters born to Mr. Ansar through his first wife would be entitled to 6.5 out of the 60 portions of their father’s property.

This was in accordance with the apportionment permitted under Muslim law.

Since the law states that legitimate sons were entitled to inherit double the property than those to which legitimate daughters were entitled to, the Division Bench ordered that the second son born through the second wife would be entitled to 13 out of 60 portions.

Finally, it was held that the remaining 7.5 out of 60 shares would go to the second wife since she had a right over one-eighth of the property owned by her husband during his lifetime.