9911796707
TMI Blog1966 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid controversy need only be stated Joydeb Naik died on 22-8-59. He hud three wives. The first wife had no issues Ananda (defendant No. 1) and Jasoda (defendant No. 2) are the son and daughter respectively through his deceased second wife Labhanya, Ali Bewa (Plaintiff No. 2) is his third wife. Haribandhu (Plaintiff No. 1) is the son and plaintiffs Nos. 8 to ft are his daughters through plaintiff No. 2. Thus, Joydeb died leaving behind him his widow (Plaintiff No. 2), two sons (Plaintiff No. 1 and defendant No. 2) and five daughters (plaintiffs Nos. 3 to 6 and defendant No. 2) At the time of Joydeb's death, there was no disruption in the coparcenery consisting of himself and his two sons. 2. The case of the plaintiffs is that thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em rests on the construction of S. 6 of the Hindu Succession Act. (Act 30 of 1966) (hereinafter to be referred to as the Act). The relevant portion of the section may be quoted: Section..... "6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving member of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when the husband is alive the wife herself cannot demand a partition. But when a partition takes place amongst the husband and sons, the wife is entitled to a share equal to that of a son. Law has gone so far as to lay down that even where a partition had already taken place amongst the father and the sons without reserving a share for the wife, the partition can be reopened. (b) The interest of the widow is a fluctuating one and does not crystallise into definite-ness until either a severance of joint status or a partition by metes and bounds takes place. The quantum of interest which a Hindu widow Is entitled to under Section 3(2) of the Hindu Women's Right to Property Act is to be determined on the date on which she seeks to enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate property within the meaning of Section 3(1) of that Act. Thus, in such a case, plaintiff No. 2 would be entitled to Rs. -/8/- of the entire property and plaintiff No. 1 and defendant No. 1 would be each getting only Rs. -/4/-. Under Section 3(2) of the 1937 Act, the widow would be entitled to the entire interest of her husband in the joint family property. If the property was separate property which is used in the narrow sense of its being self-acquired property, the widow would be entitled to the same share as a son. In this case, there was no actual severance of the joint status or partition by metes and bounds during the life time of Joydeb. The property was joint family property Plaintiff No. 2 would be stepping into the shoes of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y property, but the interest of plaintiff No. 2 was marked out as being equal to that of a son. The explanation was necessary in view of the provision whereunder inheritance in coparcenary property by succession was introduced even in respect of outsiders to the joint family which was unknown to Hindu law before 1937 and was to some extent recognised under the 1937 Act by treating the widow as a statutory heir. Under the Explanation disruption of the joint status had to be recognised immediately before the death of the deceased coparcener. The share may now be determined on the aforesaid principle. In the notional partition, Joydeb, plaintiff No. 2, plaintiff No 1 and defendant No. 1 would be each entitled to Rs.-/4/ . On Joydeb's deat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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