Devolution of an estate on the widow - Hindu Women's Rights to Property Act, 1937

Gangadhar Rout And Anr. vs Subhashini Bewa And Ors AIR 1955 Ori 135
http://indiankanoon.org/doc/333388/

Section 3 of Hindu Women's Rights to Property Act, 193, relevant sub-sections are :

"(2) When a Hindu governed by any school of Hindu Law other than the Dayabhag 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 Sub-section (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." 

"The widow's right is a statutory right"

Devolution of an estate, on the widow, under Section 3(2) of the Act is neither by survivorship nor by inheritance, but is a special right created in favour of the widow by the Statute. She is not a coparcener in the family, nor is she a joint tenant with the coparceners. Her interest lapses, on her death, not to her husbands heirs but to her reversioners, namely, the other coparceners. 

She cannot be the Karta of the family by reason of the limited estate that she acquires, nor can she call upon the manager to account for the income of the family. She cannot question the alienation made by the manager for justifying necessity. In other words, her interest in the property remains just as it was before the passing of the Act, except that under the Act she can call for a partition and reduce her husband's interest to separate possession. 

Under the Hindu Law she had only a right to maintenance in the joint family, while the Hindu Women's Rights to Property Act, which is designed to give her better rights, enables her to step into the shoes of her husband and ask for partition. But the interest given to her by the Act is still the limited estate known as the Women's estate. Her right and liabilities in other respects remain the same as they were before the passing of the Act.

If and when she works out a severance of status by suing for partition, the interest of her husband in the property' gets denned and acquires, a separate existence as an entity. This interest will devolve, on her death, on her husband's heirs and not revert to the coparcenary as It has already been disrupted. 

The Act does not, by itself, effect a severance in status. The joint family continues to have the same status as it had at the time oi the death of her husband. The property referred to in Section 3(2) of the Act, is the joint family property held by the coparcenary. The Section provides that the widow shall havt the "same interest as he himself had" in that property at the time of his death. The interest is of a fluctuating character and is liable to be either reduced or augmented on the birth or death of a coparcener. If the husband of the widow had not sued for partition, his interest in the coparcenary property would be open to the risk of fluctuation. .. One of the incidents of a coparcenary property is that no coparcener can predicate what his share is at any definite point of time, unless he gets his share separated by partition, It would be anomalous to held that a widow would be entitled to claim a definite share which her husband could not have... the Act gives the widow just what her husband had, namely, his undivided interest, subject to fluctuations arising out of the varying fortunes of the family. 

8. In a suit for partition the Court has to ascertain who the parties are that are entitled to a share, besides determining the assets and liabilities available for partition. The plaintiff's rights have got to be determined on a consideration of both the factors. 

47. ...Section 3(2) does not operate as severance of the interest of the deceased coparcener. The right which the widow gets under the section is not as heir of her deceased husband. It is a statutory right based on the recognition of the principle that the widow is the surviving half of the deceased husband. The interest which devolves on her is a fluctuating interest. She continues as a member of the joint family till she demands a partition and that she is entitled when she sues for partition to the share of her husband in family properties as they stand at the time of the partition suit and the share to which he would be entitled to then,