Tag Archives: estate

Widow Remains Legal Representative Even After Remarriage

Widow even after remarriage continues to be the legal representative of her husband as there is no provision under the Hindu Succession Act or any other law laying down that after remarriage she does not continue to be the legal representative. The right of succession accrues immediately on death of her husband and in the absence of any provision, she cannot be divested from the property vested on her due to remarriage.
Hon’ble Apex Court in the case of Manjuri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474, while considering the question as to whether a married daughter could maintain a claim petition in terms of Section 166 of the Motor Vehicles Act and whether she would be entitled to any compensation as she was dependent upon the deceased, considered the provisions of Sections 166 and 168 of the Motor Vehicles Act and Section 2(11) of the Code of Civil Procedure and relying upon the earlier observations of the Court in Custodian of Branches of BANCO National Ultramarion v. Nalini Bai Naique, (1989) 2 SCR 810, observed that the definition contained in Section 2(11) of the Code of Civil Procedure in inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCR 404, a legal representative is one who suffers on account of death of a person due to motor accident and need not necessarily be a wife, husband parent and child.
Delhi High Court in Ram Kishan v. Meena Kumari, 2011 ACJ 1211, has held that remarriage will not deprive a person from claiming compensation for the death of her/his spouse. United India Insurance Co. Ltd. v. Smt. Baby, 2017 (2) AWC 1181.

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Joint Hindu Family and Patriarchal Family – Property – Concept of

The concept of Joint Hindu Family and its Karta is quite ancient and an integral part of the way of living and customary rules of society among Hindus. In India and particularly among Hindus the family bonds are not only very strong but they have given right to a society who believe in a Joint Family even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e. Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The Joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situation in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and may make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offsprings would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
The “patriarchal family” may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grandfather, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect , if not always of affection, which is probably seated deeper than any positive institution. Manu says, “three persons, a wife, a son, and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. “ Narada says, “he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he may have grown old.”
The “joint family” is normally a transitional form from “patriarchal family” at the death of common ancestors or head of the house. If the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the latter can only be so by a delegated authority. He is the primus but inter pares. An undivided Hindu family thus is ordinarily joint not only in estate but in food and worship. The presumption therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin. However, there is no presumption that a family because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not a necessary requisite for constitution of a joint family, though where persons live together joint in food and worship, it is difficult to conceive of their possessing no property whatsoever, such as ordinary household articles which they would enjoy in common. Smt. Ramwati v. Dharmdas, 2013 (120) RD 842.

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