Laws on Illegitimate Child Rights in Ancestral Property in India

In a small village in Bihar, there lived two brothers, Ravi and Ajay. Ravi was Raghunath Prasad's legitimate son and wealthy landowner, while Ajay was born out of an affair Raghunath had with a woman named Savitri.

Despite being raised by Raghunath, society always considered Ajay illegitimate. When Raghunath passed away, property succession became a major issue. Ravi, the legally recognized heir, claimed full ownership, while Ajay, who had lived on the land his entire life, believed he was entitled to a share.

What followed was a bitter and complex legal battle, dividing the family. After that fight, they both went to court for a legal battle to establish their authority and share in the property. Let's understand what the Indian law says about it.

Does an illegitimate child inherit property?

Inheritance Rights of Illegitimate Children in India

In India, the inheritance rights of children born out of wedlock (illegitimate children) depend on the personal laws followed by different communities. These laws are based on religion, and each religion has its own rules for inheritance.

1. Hindu Law

Under Hindu law, illegitimate children have the right to inherit their father's self-earned property, which is the property he bought or earned during his lifetime. However, they do not have a right to ancestral property.

Ancestral property has been passed down through generations in the family. So, while an illegitimate child can claim a share of the wealth their father earned, they cannot claim a part of the property their father inherited from his ancestors. (The Supreme Court changed this law in its recent ruling; read further to understand that). 

2. Muslim Law

In Muslim law, illegitimate children also have inheritance rights, but their share is usually less than that of legitimate children. According to Islamic inheritance rules, children, including those born out of wedlock, can inherit from their mother and father.

However, religious guidelines fix the share of an illegitimate child, and it is generally smaller compared to the share of legitimate children. Still, they are only partially excluded from inheriting.

3. Christian Law

Under the Indian Succession Act of 1925, illegitimate children have the same inheritance rights as legitimate children. They can inherit both their father's and mother's property. This law ensures that children born out of wedlock are treated fairly and equally when it comes to inheriting property, especially if their parents die without leaving a will.

What is the latest judgement of the Supreme Court on illegitimate children? 

Supreme Court Ruling on Inheritance Rights of Children Born Out of Void or Voidable Marriages. The Supreme Court of India recently ruled that children born out of void or voidable marriages can claim a right to inherit their parent's share of ancestral property. However, they do not have rights over the property of other members of the Hindu Undivided Family (HUF). (The Judgement Came in 2023).

Key Points from the Judgment

Legitimacy of Children from Void or Voidable Marriages

Children born from marriages that are either void (invalid) or voidable (can be annulled) are considered legitimate under certain sections of the Hindu Marriage Act (HMA), 1995. According to the court, these children are treated as legitimate for inheritance under the Hindu Succession Act (HSA), 1956.

Inheritance Rights

While these children can inherit their parent's share of the ancestral property, they cannot claim a share of the property of other family members in the HUF. This is because the property in a HUF governed by Mitakshara law is shared among all coparceners (family members with a property right).

No Coparcenary Rights

The court clarified that while these children are legitimate, they do not automatically become coparceners (equal inheritors) in the HUF. They are only entitled to a share in their parent's property.

How the Share is Determined?

The deceased parent's share in the ancestral property is calculated as if a partition had occurred right before their death. The legitimate children will then get a share based on this notional partition.

Recent Judgement 2024: Raja Gounder & Ors v M Sengodan & Ors, 2024 INSC 47 

What are the rights of an illegitimate child? 

In a judgment on January 19, 2024, two judges, Justice M M Sundresh and Justice S V N Bhatti, ruled that children born from void (invalid) and voidable (can be cancelled) marriages are still considered legitimate under Section 16 of the Hindu Marriage Act, 1955.

This means these children have the right to inherit their parents' property, whether acquired or ancestral. However, the court clarified that these children can inherit from their parents, but they are not considered coparceners in ancestral property.

In simple terms, they cannot claim ancestral property alone, but they can receive a share of the ancestral property that belongs to their parents. Additionally, suppose the father (the common ancestor) acknowledges the children from a void marriage as his own. In that case, those children will be treated the same as children from a valid marriage and inherit an equal share of their property.

Conclusion

As per the previous law, an illegitimate son only had a share in his father's self-acquired property. But as per the latest judgement of the Supreme Court of India, children from a void or voidable marriage can now claim a share in his/her parent's ancestral property, too. But only in the shares in his parent's name, not those of other family members.