Coparcenary Property - Family Arrangement, Interest of Widow

Potti Lakshmi Perumallu vs Potti Krishnavenamma 1965 AIR 825, 1965 SCR (1) 26

http://indiankanoon.org/doc/694388/

Two issues set at rest in this case are :

1) Family Arrangement : "No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a court of law. But before the court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon."

2) interest to which a Hindu widow is entitled under s. 3(2) of the Hindu Women's Rights to Property Act, 1937 : Apex court referred to past decisions by the high courts and held "the interest which the law has conferred upon the widow is a new kind of interest though in character it is what is commonly known as the Hindu widow's estate. This interest is in substitution of her right under the pre- existing Hindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to these decisions her interest is a fluctuating one and is liable to increase or decrease according as there were deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. 

..... Undoubtedly she does not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that of a Hindu widow. (Now, of course , it has been enlarged by s. 14 of the Hindu Succession Act, 1956). But a coparcener has no defined interest in the joint family property and the right which he has is to claim for partition. The quantum of his interest would be determinable with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. It cannot even be suggested that the event of the death of a coparcener is not tantamount to an unequivocal declaration by him to separate from the family. According to the theory underlying the Hindu law the widow of a deceased Hindu is his surviving half and, therefore, as long as she is alive he must be deemed to continue to exist in her person. This surviving half had under the Hindu law texts no right to claim a partition of the property of the family to which her husband belonged. But the Act of 1937 has conferred that right upon her.When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition. 

... the interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in a third way i.e., by statute and where the interest is taken by her under a statute no further difficulty arises."