So it was held that A’s widow was entitled to a half share on partition. From this decision it is clear that the widow of the coparcener incidentally gets the benefit of the rule of survivorship which is operative as between the other coparceners.
Can it be asserted that by the Act of 1937 the widow of a coparcener is herself treated as a coparcener? This question was considered by the Supreme Court in Satntghun v. Sabujpari, AIR 1967 SC 272. A died in 1937 as member of an undivided joint family. His widow took his place under the Act of 1937.
Subsequently she demanded a partition but this was not followed up by a partition by metes and bounds. On her death, her daughter claimed as reversioner to her father. This was resisted by the other coparceners claiming by survivorship. Shah, J., held that the daughter was entitled to succeed.
The learned Judge points out that the Act of 1937 does not make the widow a coparcener. “A Hindu coparcenary under the Mitakshara Law consists of males alone; it includes only those members who acquire by birth or adoption an interest in the coparcenary property”.
The Act of 1937 effects a statutory substitution of the widow in the place of her husband. The coparcenary continues. The widow can demand a partition and make her share definite. If she does not do so, on her death the interest would merge in the coparcenary. Once she demands partition her share becomes definite, and devolves on her death upon the heirs of her husband. Thus in no sense is she a coparcener in her own right.
The Act of 1937 has been repealed by the Hindu Succession Act, 1956.
(B) The Hindu Succession Act, 1956:
Under s. 30 of the Act of 1956 read with the Explanation to that section, the interest of a coparcener in the Mitakshara coparcenary property may be disposed of by will. In other words, the rule of survivorship does not operate when a will is executed by the coparcener.
Even in the absence of a will, if the coparcener has left, for instance, a Class I female heir, i.e. his daughter, widow, mother, daughter of a pre-deceased son, daughter of a pre-deceased daughter, widow of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, or widow of a pre-deceased son of a pre-deceased son, the share of the coparcener in the coparcenary does not follow the rule of survivorship but will devolve according to the rules of inheritance specified in that Act. Under these rules the widow takes an absolute estate and can inherit along with sons, similarly, the daughter can inherit along with sons.
In this way innovations have been made in the law of Hindu coparcenary. Under s. 6, when a coparcener leaves a widow, his share would be deemed to have been partitioned immediately prior to his death and this share devolves by heirship.
The operation of the rule of survivorship, where it operates, has been profoundly modified. The rule does not any longer interdict a will. In this way, the Hindu coparcenary is now only a pale shadow of its former self. Its incidents have atrophied under the impact of modern legislation.
(c) Judicial Interpretation:
Judicial interpretation has also assisted in the process of disintegrating, the joint family. Thus, in Gurupad v. Hirabai, AIR 1978 SC 1239, the Supreme Court has invested the notional partition. Contemplated by s. 6 of the Hindu Succession Act, 1956, with all the incidents of an actual partition, Chandrachud, C.J., has observed that though Explanation 1 to s. 6 uses the words “shall be deemed” to have been partitioned, “it has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener on an actual partition cannot be recalled”.
This means that irrespective of the wishes of the coparceners, by force of law, there is a partition. Consequently, when a coparcener dies leaving a female Class I relation, the joint family is disrupted. The manager cannot any longer sell the coparcenary property so as to bind the other coparceners except with their consent.
If there are minor coparceners, he may have to take the permission of the court to alienate their interest. Business which till then was joint family business may become converted into ordinary partnership business governed by the Partnership Act, 1932.
The Karta may not be able to represent the other coparceners in litigation after the statutory partition. These are all logical consequences which will follow from the decision of the Supreme Court in Gurupad’s case, AIR 1978 SC 1239. It is obvious that they will have a disruptive effect on the joint family.