Hindu succession before and after 1938
prodeep
(Querist) 16 March 2013
This query is : Resolved
A had 3 sons.1 branch perished after 2nd genration leaving 2 widows.Male heir of 2nd branch died issueless,intestate near 1937-38 leaving mother,widow as heirs(his sister was also there but isn't mentioned in revenue papers)widow remarried in 1938 but her name is still on revenue papers.The mother left a will in favor of a male heir of 3rd branch in 1962.Remarried widow left a will in f/o her grandchildren from 2nd wedlock(her son is their GPA)in 2002 before her death in 2011.They are now claiming share of widow as per revenue papers.Possession of whole estate was with surviving mother and after her death in 1962 with male heir of 3rd branch. Is claim of widow's heirs from 2nd wedlock valid today?
prabhakar singh
(Expert) 16 March 2013
Section 2 of the Hindu Widow's Remarriage Act, 1856, provides that on her remarriage, a Hindu widow forfeits her rights and interests in her certain estates specified in the section, and these estates pass to the next heirs of her deceased husband as if she were dead.
Several High Courts have opined that the estates specified in Section 2 are
what are known in law as her "limited" estates and not the absolute ones. A Hindu widow, therefore, losses her rights,etc. in her limited estate and not in absolute estate, on her remarriage.
After coming into operation of "The Hindu
Succession Act, 1956" (for short, hereafter referred as "Act of 1956"), these limited estates of a Hindu widow are transformed into absolute estates of hers as provided in it's Section 14(1) stipulates that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, will be held by her as a full owner thereof.
High Courts have rightly decided that remarriage of a Hindu widow is now no longer a ground for divesting her of her right and interest in these absolute estates.
And the APEX Court have confirmed it long before.
Widows can get share of property after remarrying: SC
TNN Feb 20, 2008, 12.01am IST
NEW DELHI: The Supreme Court has ruled that a widow, even after her remarriage, is legally entitled to get a share of her first husband's inherited property.
This reiteration of the legal provision came from a Bench comprising Justices S B Sinha and V S Sirpurkar while it dismissed a petition by one C Sugathan's heirs, who had challenged a Kerala High Court judgment allowing inheritance rights to their paternal uncle's widow even after her remarriage.
Raj Kumar Makkad
(Expert) 17 March 2013
In the given case as the widow had performed her re-marriage during the year 1938 hence her share in the property reverted back to the legal heirs of her deceased husband and thus she lost her entire share thereto. In this way, the entry shown in the revenue record qua her share is erroneous liable to be got corrected from civil rights and the persons demanding share out of alleged wrong and illegal record is further wrong and incorrect and also an illegal act.
A civil suit for correction of the revenue record is required to be filed in the given case.
prodeep
(Querist) 17 March 2013
Sir,Thank you for quick and precise reply.
prabhakar singh
(Expert) 17 March 2013
I am sorry.
I really overlooked to read sentence "widow remarried in 1938 but her name is still on revenue papers."
Had it been a simple case as with sentence only to read"widow remarried in 1938"then at then her right was not absolute and it reverted just then and there.
But there are entries showing her owner continuously for over a period of more than 75 years which was never challenged by those who ought to have challenged it within limitation.Possession of whole estate life long with her is also admitted.
Is claim of widow's heirs from 2nd wedlock valid today? IS THE QUESTION POSED IN QUERY.
MY QUESTION IS CAN NOT THEY GET MUTATED WHEN THEIR MOTHER'S NAME IS ON RECORD?
IN MY OPINION IT IS A CASE WHERE WIDOW'S HUSBAND HEIRS' NEED TO PROVE IF THEY STILL
HAVE ANY RIGHT AFTER ALLOWING WIDOW TO HOLD
IT AS OWNER FOR A LONG LENGTH OF 75 YEARS.
CAN THEY GET THE ENTRIES EXPUNGED?WOULD THERE BE ANY ISSUE OF LIMITATION OR NOT?CAN THE WIDOW BE DEEMED TO HAVE ACQUIRED TITLE
BY ADVERSE POSSESSION WOULD BE POINTS IN FAVOR OF WIDOW AND HER BENEFICIARIES CLAIMING THROUGH HER WILL.
IT WOULD NOT BE A VERY STRAIGHT CASE OF REVERSAL OF INHERITANCE AFTER WIDOWS REMARRIAGE WHO WAS ALLOWED TO REMAIN
OWNER FOR OVER A PERIOD OF LONG 75 YEARS
AND IN THE MEAN TIME BENEVOLENT LEGISLATION
HINDU SUCCESSION ACT ALSO CAME IN FORCE IN 1956,EVEN 1956 HER POSSESSION AS OWNER CONTINUED FOR A PERIOD OF OVER 18 YEARS,ANY SUIT FOR CLAIMING RIGHT BY HER HUSBAND'S HEIRS WAS NOT BROUGHT NOR ENTRIES HER NAME WERE SOUGHT TO BE EXPUNGED.
IN MY EVALUATION THE WEIGHT OF CASE IS TOWARDS WIDOW @ 90%.
Raj Kumar Makkad
(Expert) 17 March 2013
The plea of adverse possession is not available against co-sharers and even after her marriage, such widow might have shifted to her husband's place leaving her earlier matrimonial home and thus her possession was just in papers and actually the joint land might have been under the possession of other co-sharers hence the law of limitation getting the correction of the revenue entries to that extent shall not be a big issue.
prodeep
(Querist) 18 March 2013
Sir, The revenue entries in favour of the widow were never challenged as such. But way back in 1968 some vested interests found out the hetherto unknown sister of deceased husband(her whereabouts were not known earlier and she is no more now) and pitched for her share before asstt.collector/sr.sub judge. The male heir of 3rd branch in whose favor the mother of the deceased husband had left a will, contested the claim But as her name was not on revenue record or female child had no inheritance right then or for the fact that she never appeared in the court a decree was passed in 1969 that male heir of 3rd branch was the sole heir of the share of deceased man's mother(mothr-in law of widow). The share of the widow remained as it was though she was made a party a/w the sister of the deceased. The 2 never appeared.
Can that case be taken as an effort by present holder to challenge widow's ownership(on revenue record)?
prabhakar singh
(Expert) 18 March 2013
Is the land jointly recorded in name of widow as well as other family members of her
deceased husband or it was in exclusive name of deceased husband later mutated exclusively in name of his widow who has willed to her sons from second marriage.????
prodeep
(Querist) 18 March 2013
The revenue record for the period immediately before and after death (of deceased husband) is not readily available.But I understand the husband, being the only male heir,inherited it on death of his father.On his own death it went to his mother and his widow @1/2 share each. The mother willed it to male heir of 3rd branch on her death in 1962 and after remarriage of widow.She was in physical possession of the whole estate at that time but revenue record shows her as 1/2 share holder of her son.
prabhakar singh
(Expert) 18 March 2013
Then what has been subsequently told by you
takes the balance towards the widow a little more.
In fact I am not saying that a claim can not be staked against her.Rather what i am saying that due to long inaction of claimant
possibilities to establish his right has weakened .
prodeep
(Querist) 19 March 2013
There are no entries in Panchayat record about Ist marriage of the widow.There are hardly any eye witnesses to the event(dating back to 1937-38). So is not the identity of the widow as heir to her 1st husband also questionable.
prabhakar singh
(Expert) 19 March 2013
Is she not shown as widow of her first husband in record of right's also?
prodeep
(Querist) 19 March 2013
She is. But is that enough to establish her as the same person. After all she never tried to claim her right all these years. It is perhaps only under influence of her son that she made such a will?
The bigger question is how do the male heir of 3rd branch of deceased husband's family present his/their right to the land?
prabhakar singh
(Expert) 19 March 2013
Yet, out right you can not deny her to be a widow of him from whom you want to claim.
prodeep
(Querist) 19 March 2013
In fact widow remarriage is not uncommon in our community/area.But no widow ever came to claim her 1st husband's property.We donot have any excuse for not challenging revenue entries before.The widow's son was aware of these entries by virtue of his employment in revenue deptt.Lambardar(related to the household) had also vested interest in reporting/non reporting about existence or otherwise of the deceased in this case.
prabhakar singh
(Expert) 19 March 2013
"We do not have any excuse for not challenging revenue entries before."
THAT IS WHY I SEE PROBLEMS.
OF WHICH STATE THE MATTER IS?
IN U.P. U.P.Z.A APPLIES WHERE NO LIMITATION IS PRESCRIBED FOR DECLARATORY SUIT AND LIMITATION ACT DOES NOT APPLY AS THEY HAVE SEPARATELY PROVIDED LIMITATION AND HAVE KEPT DECLARATORY SUITS OPEN FOR EVER.
CHECK HOW IS LAW IN YOUR STATE?
prodeep
(Querist) 19 March 2013
It comes under judiciary of Himachal
prodeep
(Querist) 19 March 2013
I thought it to be simple case where revenue deptt.failed to update its record by keeping a widow's name who remarried way back in 1938 on record which as per law in existence should not have been there.Moreover,she was not in possession for all these years.
prabhakar singh
(Expert) 19 March 2013
Try to know about the state tenancy law.
does it separately lays law about succession
or HSA applies there?
Which court have jurisdiction over declaratory suit of Agricultural land? Revenue or Civil?
Have they provided a separate scheme of limitation or it is Limitation Act that applies to these kind of suit lands.???
Discuss things with a revenue law knowing lawyer.
