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Whether the wife a widow can demand for partition under Hindu Law


In Civil Law
Husband died recently - Can his wife a widow demand for partition of her husband's share in the ancestral property. How can she do it?

Answers (1)


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Nagpur: In a landmark verdict, Bombay high court has ruled that a widow or mother of a coparcener can file a case for partition of the man's joint family property so she can get her share.
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The Hindu Woman's Right to Succession Act of 1937 enabled a woman to seek a partition, but only till she was alive, and then her property reverted to the joint family. The Hindu Succession Act of 1956 entrusted this right to absolute owners in case of joint property, which meant the property could be divided only if other members demanded it. An amendment in 2005 gave daughters the same rights as sons regarding the father's property, but no such right was conferred on the widow or mother.
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"The doctrine of ubi jus ibi remedium (where there is a right there is a remedy) must be pressed into service to hold that the widow or woman has right to file suit for partition in order to recover the property due to her husband in a joint family, notwithstanding the fact that the other coparceners (inheritors) in the joint family don't desire to have the partition. Such a widow has an independent right given by law through husband to have a share in the joint family property," a single-judge bench of Justice Arun Chaudhari held.
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The judgment came while hearing two second appeals filed by family members against Sulochana Chavan from Pune and Chanda Karne from Satara. Both filed partition suits after the death of their husband, which were partly allowed by trial courts and challenged by the in-laws in the high court.
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In a similar case of Ananda Tate in 2010, the high court had taken the view that a Hindu woman (mother in this case) had no right to file a partition suit under the 1956 act, though this right was earlier available as per 1937 act. "In the absence of any other coparcener in the family demanding partition of the joint property, the suit by her was not maintainable," it had ruled.
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Justice Chaudhari however reverted the verdict by ruling that "when a right is given, the remedy has to be there to file a suit for partition, which can't depend upon the demand of other inheritors to partition the joint property," the court observed.
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Quoting Shastric Hindu law, Justice Chaudhari said it's true that a female didn't have a right to claim partition of a joint Hindu family property and would be entitled to a share equal to that of a son only on partition between the sons. "With the advent of 1956 act, which materially altered the Hindu Personal Law, the widow has been placed as a Class-I heir of husband in the schedule. Therefore, she would be entitled to succeed to his entire share in the joint or ancestral property of the family with the same magnitude of estate, which husband would have got had he been alive," he mentioned.
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The court added that the right to have a share in the property through her husband provided to a widow can't be made nugatory by projecting an artificial distinction that the act of 1956 does not provide enabling provision to a widow, mother or a woman to file suit on her own or independently, seeking partition of the share of deceased husband.
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Citing sui juris (one's own right), the court held that the right to share has been given to a widow upon death of husband as per the act of 1956. "It doesn't carve out any prohibition on her from filing the suit independently. Hence, it must be held that she has a right to file the suit independently," the court ruled while dismissing both appeals before it.


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