May 2012
Succession — Right of daughter-in-law — Devolution of interest — Notional Partition — Hindu Succession Act, 1956, section 6.
By Dr. K. Shivaram, Ajay R. Singh, Advocates
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The grievance of the appellant (Deft. No. 7) was that she being one of the daughters of the propositor should have been granted a decree for 1/3rd share in all the suit schedule properties, more particularly when it had been established on record that the suit schedule properties are the ancestral properties of the joint family consisting of plaintiffs and defendants of which her husband was a member. The Trial Court decided the issue in favour; however, due to some mistake the same is not reflected in the operative portion of the decree. Though a rectification application u/s.152 of CPC could be applied, however, the defendant No. 7 preferred the appeal.
The Court observed that the 7th defendant preferred the appeal with the ambitious intention of augmenting her share further. While 1/3rd share in terms of the judgment was the correct share to which the 7th defendant was entitled to, the further claim for augmenting her share by claiming a share in a share allotted to her father-in-law making a claim for 1/2 share is only an ambitious claim not tenable in law as the daughter-in-law in the family can claim only through her husband and not as a direct heir to her father-in-law. The appellant cannot get any share from out of the properties allotted notionally to the share of a father-in-law who was no more.
Even otherwise, in Hindu law the shares of joint family members are determined per stripes vis-àvis their position in the family and not by what they would have got with reference to a notional partition that has to be effected at that point of time when a member of the family who is no more as of now. This is not the legal position either by applying the customary law or by the Hindu Succession Act. Therefore, the claim of the appellant for enhancing her 1/3rd share to ½ share was not tenable and the appeal was to be disposed by affirming 1/3rd share granted by the Trial Court.
Insofar as the sharing ratio particularly vis-à-vis the 4th plaintiff was concerned, a daughter in the family, who was married and the partition taking place subsequent to her marriage.
The 1/3rd share allotted to the 4th plaintiff by the learned Trial Judge becomes validated by the strides taken by the legislation in amending section 6 of the Hindu Succession Act, 1956 by Act No. 39 of 2005. The share claimed by the appellant in the dwelling units on the premise that a married daughter cannot get a share in the dwelling house of the family also does not sustain in the wake of the legislative development, which would apply while disposing of the appeal.
