TMI Blog1966 (8) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Being of the opinion that the plea of separation of Babuji from the coparcenary in 1934 was not established, and that the interest of Babuji in the coparcenary property devolved upon the surviving coparceners, the Trial Court dismissed the suit. In appeal, the High Court of Judicature at Patna, granted a decree for possession of a share in the property as at the date of the suit. They held that on the death of Babuji on October 28, 1937, Chando Kuer by virtue of the Hindu Women's Rights to Property Act, 18 of 1937, acquired in the property of the coparcenary the same interest which Babuji had, and by the institution of the suit for partition that interest became defined, and on her death it devolved upon the appellants as heirs to the estate of Babuji. With certificate granted by the High Court, Satrughan the son of Ghiran has appealed to this Court. 3. Under the Mitakshara school of Hindu law, on the death of a coparcener his individual interest in the coparcenary property devolves by survivorship upon the remaining coparceners, and his widow if any is entitled to maintenance only out of the property. But the Parliament enacted Act 18 of 1937 which sought to invest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in the first instance refer to the principal characteristics of a Hindu coparcenary and of the limited estate held by Hindu females known as a Hindu woman's estate. 5. A Hindu coparcenary under the Mitakshara school consists of males alone : it includes only those members who acquire by birth or adoption interest in the coparcenary property. The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners : it is only on partition that the coparcener can claim that he has become entitled to a definite share. The two principal incidents of coparcenary property are : that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a coparcener acquires an interest in the coparcenary property by birth, not as representing his father but in his own independent right acquired by birth. 6. Property inherited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. But if she claims partition, she is served from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest in coparcenary property by s. 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve upon her husband's heirs. To assume as has been done in some decided cases that the right of the coparceners to take her interest on determination of the widow's interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality. 8. Counsel for the appellant contended that the right vested in the surviving coparceners to take the interest vested in the widow enures so long as the widow does not, by suit or by private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pratapmull Agarwalla v. Dhanabati Bibi and Others L.R. 63 IndAp 33 that under Mitakshara law when the family estate in a Hindu joint family is divided a wife or mother is entitled to a share, but is not recognized as the owner of such share until the division of the property is actually made, as she has no pre-existing rights in the estate save a right of maintenance. If she dies before the property is divided, her share in the property falls back into the property from which it was carved out. But a Hindu widow acquires under s. 3(2), even before division of the property, an interest in property and that interest gets defined as soon as an unequivocal demand for partition is made by her. 10. The dictum of the Madras High Court in Movva Subba Rao and Another v. Movva Krishna Prasadam and Anr. I.L.R. 1954 Mad. 257 that the widow's interest is a personal interest and comes to an end on her death cannot be regarded as a correct statement of the law. The view expressed by the Nagpur High Court in Shamrao Bhagwantrao v. Kashibai and others A.I.R. 1956 Nag. 110 that the right of a widow to obtain her share in the joint family property (even after a suit for partition is fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
