HUF — Joint family property — Neither a wife nor a mother has a right to file suit for setting aside alienation — Hindu Law.

The respondent (mother) filed a suit for partition and
separate possession. It was her case that the suit property belongs to her
husband. The defendant (sons) claimed that there was a partition amongst the
brothers and each of the brother was supposed to cultivate his own share of the
property.

The Court held that a co-parcener has a right to alienate his
share in the joint family property inter vivos. If the suit property was a joint
family property in the hands of the defendants, each of the sons of the
defendant had a right by birth in the suit property. It was therefore for the
sons of defendants who had interest in the suit property by birth to challenge
the alienation made by their father and uncles. A mother does not have a right
independently to challenge the alienation of the joint family property since she
does not have a right in it by birth. Even if one of the defendants may have
sold certain property exceeding his share, it was for the sons of defendants to
challenge the sales since they had interest in the joint family property.
Neither a wife nor a mother has a right to file a suit for setting aside
alienation since she does not have right by birth in the co-parcenery property
at all. Right to her to have a share in the joint family property accrues to her
only when the co-parceners decide to partition the joint family property,
otherwise she is bound to be joint with her sons. The suit at the instance of
mother was therefore, not maintainable for setting aside alienation made by her
sons.

Further S. 3(3) of the Hindu Women’s Right to Property Act,
1937 no doubt gives a right to the woman to seek partition. However, this Act
has been repealed by the Hindu Succession Act, 1956. If the provisions of the
Hindu Succession Act, 1956 are read, it would be clear that there is no
provision similar to Ss.(3) of S. 3 of the Hindu Women’s Right to Property Act.
The Legislature in its wisdom has not thought it fit to continue, this right in
a woman. The S. 14 of the Hindu Succession Act, 1956 confer upon a woman to own
absolutely a property in possession which she got against her right of
maintenance or for pre-existing right.

[Ananda Krishna Tate (deceased by L. Rs) v. Drawpadibai
Krishna Tate & Ors., AIR 2010 Bombay 83]