Saturday, 6 April 2019

Whether daughter is entitled to get share in ancestral property which was inherited by her mother?

 Thus, under Subsection
(2) of Section 3 of Hindu
Women's Right to Property Act, 1937 when a Hindu governed by any
school of Hindu law other than Dayabhaga dies having at the time of
his death interest in Hindu joint family property, his widow shall
have the same right, widow shall have in the property the same
interest as the deceased had. However, such interest shall be limited
interest known as Hindu woman's estate.

11 Section 14 of the Hindu Succession Act, 1956 reads as
under:
"14. Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her
as full owner thereof and not as a limited owner. Explanation.—In
this subsection,
“property” includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at
a partition, or in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion, or by purchase
or by prescription, or in any other manner whatsoever, and also
any such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in subsection
(1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the
decree, order or award prescribe a restricted estate in such
property.”
12 Thus, in view of the provisions of Section 14 of the
Hindu Succession Act, 1956, the Appellate Court has held that
the mother of the plaintiff and the defendant became absolute
owner of her share in the suit property which was the limited
interest or Hindu woman's estate. In view of the provisions of
Section 3 of the Hindu Women Right to Property Act, 1937.
Section 14 (1) of the Hindu Succession Act, 1956 reads that

any property possessed by female Hindu whether acquired
before or after the commencement of the Act shall be held by
her as full owner thereof and not as a limited owner.
Explanation appended to the said Section embraces all the
modes of acquisition, which includes acquisition of the
property by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of
maintenance ,or by gift from any person, whether a relative or
not.
. Thus, the limited interest or Hindu woman's estate
shall be held by the widow as full owner in terms of provisions
of Section 14(1) of Hindu Succession Act, 1956.
13 Therefore, on bare perusal of Section 14, it
appears that the property or interest in the property acquired
by a female Hindu member of the family before
commencement of the Hindu Succession Act, 1956, becomes
an absolute owner.

14 In the case in hand, it is not in dispute that mother
of the plaintiff and the defendant had died after 1956 and,
therefore, her interest in the property would devolve as per
the scheme in terms of Section 15 of the Hindu Succession
Act, 1956. Thus, her property will devolve upon her sons,
daughters and husband.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.126 OF 2018
WITH
CIVIL APPLICATION NO.1511 OF 2017

Shri Jagannath Waman Undre  Vs Smt. Yamunabai Sitaram Kadam

CORAM : SANDEEP K. SHINDE J.
DATE : 1 s t APRIL, 2019



Heard learned counsel for the parties.
2 Sister, of the appellant had filed the suit for declaration
of her rights in the suit property, which was dismissed by the learned
Trial Judge. However, decree was reversed in Civil Appeal No.557 of

2013 by the learned District Judge11,
Pune. It is against the decree
passed in the Civil Appeal No.557 of 2013, the defendant has
preferred this Second Appeal.
3 Suit property is the land admeasuring 1H and 0.2R more
particularly described in paragraph 1 of the plaint.
4 I will refer the parties as per their status in the suit.
Plaintiff is sister of the defendant and Waman Bala Undre was their
father and Shantabai Waman Undre was mother. Character of the
property is ancestral property. Waman Undre died on 15th April,
1944 leaving behind wife Shantabai, daughter Yamunabai (Plaintiff)
and son Jagannath (Defendant). After death of Waman, name of the
defendant alone was entered into the records of rights of the suit
property. At the relevant time, he was minor and, therefore, name of
his mother was mentioned as natural guardian.

5 It is not in dispute that since 1972, mother Shantabai left
the house in the state of insanity and her whereabouts were not
known. She was about 65 years old when she left the house. It
appears from the record that Shantabai is no more when the suit was
instituted. Resultantly, only plaintiff and the defendant are the heirs
of late Waman Undre.
6 Plaintiff was apprehending alienation of the suit property
by the defendant and, thereby denying her rights therein which
constrained her to file subject suit for declaration of her right therein
and for perpetual injunction.
7 Relationship between the parties is not in dispute. The
defendant, however, resisted the suit on the ground that since
Waman Undre died in 1944, as per the prevailing laws of succession,
only male members of the family were having rights in the ancestral
property and, therefore, mutation entry no.1119 was correctly
recorded in his name alone. He denied right and interest of the

plaintiff in the suit property.
8 The learned trial Court held that under the Coparcenary
Law, a wife or a widow or a daughter though a member of joint
Hindu Family, was not entitled to any share or interest in the coparcenary
property of that joint family, except to the extent of a right
of maintenance and residence or marriage expenses. The trial Court
thus held that a woman whether wife or widow or daughter, has no
right in coparcenary
property and, therefore, could not claim share
separately. On this ground alone, the suit was dismissed.
9 The Appellate Court has considered provisions of Section
3 of the Hindu Women's Right to Property Act, 1937 which reads as
under:
“3 Devolution of property. (
1) When a Hindu governed by the Dayabhaga School of Hindu Law
dies intestate leaving any property, and when a Hindu governed by
any other school of Hindu law or by customary law dies intestate
leaving separate property, his widow, or if there is more than one
widow, all his widows together, shall, subject to the provisions of
subsection
(3), be entitled in respect of property in respect of which
he dies intestate to the same share as a son: Provided that the
widow of a predeceased son shall inherit in like manner as a son if

there is no son surviving of such predeceased son, and shall inherit
in like manner as a son's son if there is surviving a son or son's son
of such predeceased son: Provided further that the same provision
shall apply mutatis mutandis to the widow of a predeceased son of a
predeceased son.
(2) When a Hindu governed by any school of Hindu law other than
the Dayabhaga school or by customary law dies having at the time
of his death an interest in a Hindu joint family property, his widow
shall, subject to the provisions of subsection
(3), have in the
property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions
of this section shall be the limited interest known as a Hindu
woman's estate, provided however that she shall have the same right
of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which
by a customary or other rule of succession or by the terms of the
grant applicable thereto descends to a single heir or to any property
to which the Indian Succession Act, 1925, applies.”
10 Thus, under Subsection
(2) of Section 3 of Hindu
Women's Right to Property Act, 1937 when a Hindu governed by any
school of Hindu law other than Dayabhaga dies having at the time of
his death interest in Hindu joint family property, his widow shall
have the same right, widow shall have in the property the same
interest as the deceased had. However, such interest shall be limited
interest known as Hindu woman's estate.

11 Section 14 of the Hindu Succession Act, 1956 reads as
under:
"14. Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether acquired
before or after the commencement of this Act, shall be held by her
as full owner thereof and not as a limited owner. Explanation.—In
this subsection,
“property” includes both movable and immovable
property acquired by a female Hindu by inheritance or devise, or at
a partition, or in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion, or by purchase
or by prescription, or in any other manner whatsoever, and also
any such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in subsection
(1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the
decree, order or award prescribe a restricted estate in such
property.”
12 Thus, in view of the provisions of Section 14 of the
Hindu Succession Act, 1956, the Appellate Court has held that
the mother of the plaintiff and the defendant became absolute
owner of her share in the suit property which was the limited
interest or Hindu woman's estate. In view of the provisions of
Section 3 of the Hindu Women Right to Property Act, 1937.
Section 14 (1) of the Hindu Succession Act, 1956 reads that

any property possessed by female Hindu whether acquired
before or after the commencement of the Act shall be held by
her as full owner thereof and not as a limited owner.
Explanation appended to the said Section embraces all the
modes of acquisition, which includes acquisition of the
property by a female Hindu by inheritance or devise, or at a
partition, or in lieu of maintenance or arrears of
maintenance ,or by gift from any person, whether a relative or
not.
. Thus, the limited interest or Hindu woman's estate
shall be held by the widow as full owner in terms of provisions
of Section 14(1) of Hindu Succession Act, 1956.
13 Therefore, on bare perusal of Section 14, it
appears that the property or interest in the property acquired
by a female Hindu member of the family before
commencement of the Hindu Succession Act, 1956, becomes
an absolute owner.

14 In the case in hand, it is not in dispute that mother
of the plaintiff and the defendant had died after 1956 and,
therefore, her interest in the property would devolve as per
the scheme in terms of Section 15 of the Hindu Succession
Act, 1956. Thus, her property will devolve upon her sons,
daughters and husband.
15 Thus, taking into consideration facts of the case, in
my view, the learned Appellate Court has recorded the finding
of fact and law correctly, which is consistent with the evidence
on record.
16 Appeal, therefore, does not give rise to any
substantial question of law. Appeal is dismissed. Civil
Application is disposed of accordingly.
(SANDEEP K. SHINDE, J.)

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