[Govind Manohar Jadhav & Ors. v. Smt. Rukhminibai
Manohar Jadhav & Anr., AIR 2009 (NOC) 2366 (Bom.)]
One Mr. Manohar Jadhav married respondent No.1 Rukminibai.
During the subsistence of the said marriage, he married appellant No. 3
Popatbai. From the second marriage appellant No. 1 & 2 were born. One person
had purchased some property from Respondent No. 1 (i.e. first wife).
Mr. Manohar had received his share of property on partition from his brother.
The issue that arose for consideration was whether the
property received by Mr. Manohar on family partition was his separate property
and therefore whether the illegitimate children were entitled to inherit
share.
The Court observed that as per S. 314 of the Principles of
Hindu Law by Mulla, Volume I, 20h Edition, a wife cannot herself demand
partition, but if a partition does take place between her husband and his
sons, she is entitled to receive a share equal to that of a son. It does not
appear that in absence of any child, male or female, wife automatically
be-comes sharer in the property of husband during his life time. So, it cannot
be said that 1st wife-respondent No. 1 Rukminibai has more than
3 share in
the property of Manohar. The case would have been different if respondent No.
1, Rukminibai had a son, in that case such son would have been coparcener and
such son, Rukminibai and Manohar each would have
ard share
and property available for partition amongst heirs would have been
a share. The
2nd wife would not be entitled to any share. On partition between brothers,
the mother would have equal share with sons.
The Court held that the 2 children from the 2nd wife were
entitled to share in the property of their father, Manohar, though the second
wife had no such right.
