In a petition filed before the Madras High Court seeking the undivided share of a deceased coparcener, whose wife had remarried and who had a daughter as his only Class I heir, Coimbatore, a Single Judge Bench of Justice P.B. Balaji found that the Subordinate Court had not committed any error in refusing to entertain the execution petition and dismissed the present petition.

The point of consideration in the present matter was whether the share of the deceased coparcener (son) would go back to the other coparceners when his wife had remarried after his demise or whether the deceased coparcener’s daughter would inherit the entire share of the deceased coparcener.

The estate opened prior to the Amendment Act 39 of 2005, which omitted Section 24 disentitling a widow to any share consequent to remarriage. The petitioner submitted that since the wife had remarried, the undivided share of the deceased son would revert back to the other coparceners, enlarging their shares. It was also contended that even though the deceased coparcener had a daughter, she would not be entitled to a share.

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The deceased coparcener’s daughter contended that the execution petition itself was not maintainable since proceedings had already terminated, the daughter had stepped into her deceased father’s shoes, and had also alienated the property in favour of a third party. It was also submitted that since the deceased coparcener’s widow had remarried, at best only she could lose her entitlement and not any other legal heir.

The Court referred to Section 24 of the Hindu Succession Act, 1956 as it stood before the amendment and noted that the entire share of the deceased coparcener had been allotted to his only daughter and Class I legal heir, who had also alienated the property. It was also noted that the 4^th defendant had attempted to execute a decree contending that in the given circumstances, the deceased coparcener’s share would revert back and enlarge the existing shares of the other coparceners.

Finding no error committed by the Subordinate Court while refusing to entertain the execution petition, the Court dismissed the present petition.

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K. Duraisamy v. Dhanalakshmi

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