Partition of property – A Hindu widow can on her own file suit for partition under Hindu Succession Act 1956 in respect of her husband’s share in the property. [Hindu Succession Act, 1956]

The plaintiff-respondent herein, Sulochana, widow of Rajiv Chavan filed Civil Suit for partition against the brothers and sister of her deceased husband. The matter ultimately travelled to the Bombay High Court.

The Bombay High Court in the case of Ananda Krishna Tate since deceased by Legal Heirs vs. Draupadibai Krishna Tate and others; 2010 (1) BCJ 714, had taken a view that a Hindu woman (mother, in that case) had no right to file a suit for partition under the provisions of the Hindu Succession Act, 1956 (the Act of 1956), which was earlier available as per section 3(3) of the Hindu Women’s Rights to Property Act, 1937 (the Act of 1937). In the absence of any other coparcener in the joint family demanding partition of the joint family property, the suit on her own was not maintainable.

The Bombay High Court held that the Hindu Succession Act was brought into force in the year 1956 and for emancipation of right to the women, the widow was given exclusive right to the property by removing the limited right that was given to her under the Act of 1937. Thus, right to share has been given to a widow upon death of her husband as per the Act of 1956. Further, the Act of 1956 does not carve out any prohibition on her from filing the suit independently. Hence, it must be held that she has the right to file the suit independently.

Thus, the right having been given to a widow or mother or women under the Act of 1956, she cannot be told that though she has a right to get the share, she cannot file a suit for recovery of share of her deceased husband as she had no right to file a suit. When a right is given, the remedy has to be there namely remedy to file a suit for partition, which cannot depend upon the desire or demand of other coparceners in the family to have a partition of the joint family property. The decision in the case of Ananda (supra) was held to be per incuriam.