KIRAN RAIKWAR (SINCE DIED)versusSTATE OF U.P. AND ANOTHER

                                                                         AFR
         HIGH COURT OF JUDICATURE AT ALLAHABAD
                MATTERS UNDER ARTICLE 227 No. - 1779 of 2025

Kiran Raikwar (Since Died)
                                                             .....Petitioner(s)
                                   Versus

State of U.P. and Another
                                                           .....Respondent(s)

Counsel for Petitioner(s)       : Lal Chandra Mishra, Shashikant Mishra
Counsel for Respondent(s)       : C.S.C.

Court No. - 5
                   HON'BLE KSHITIJ SHAILENDRA, J.

Issue Involved:- Whether mother of a deceased divorced daughter is
entitled to receive amount awarded to wife under the decree of
divorce.

1. Heard learned counsel for the petitioner, learned standing counsel for
the State and perused the record.

2. By order dated 03.03.2025 notice was issued to respondent no.2. Office
report dated 29.11.2025 indicates that notice has been delivered upon the
addressee on 07.04.2025. Service of notice upon the respondent no.2 is
held to be sufficient. No one has put in appearance on behalf of
respondent no.2.

3. This petition has been filed with the prayer to issue a direction to the
Principal Judge, Family Court Banda to release a sum of Rs. 16,00,000/-
(sixteen lakh) in favour of the petitioner who is mother of late Kiran
Raikwar, which amount was deposited by the respondent no.2 in O.S. No.
103 of 2023 under Section 13-B of Hindu Marriage Act.

4. It is contended by the learned counsel for the petitioner that the petition
under Section 13-B was filed jointly by the parties to the marriage seeking
dissolution of marriage by mutual consent. The said petition was decreed
by order dated 23.4.2024 and one of the terms of the settlement between
the parties was payment of Rs. 20 lakh to the wife, i.e. the petitioner's
daughter.
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5. Submission is that out of the aforesaid sum of Rs. 20 lakh, a sum of Rs.
4 lakh was paid to the wife, however, remaining sum of Rs. 16 lakh was
deposited before the Family Court. It is contended that the wife moved an
application dated 24.5.2024 seeking release of amount to her, pursuant to
which a cheque of Rs. 16 lakh was prepared by the Family Court on
06.07.2024, however, before the cheque could be issued in her favour, she
died on 16.7.2024.

6. Thereafter, the petitioner, who is mother of the deceased wife, moved
an application in September, 2024 along with affidavit and copy of the
death certificate as well as certificate issued by District Magistrate that
the petitioner is the only living member in the family and request was
made to release the amount in her favour.

7. It is stated that the amount is lying deposited before the concerned
Family Court and only on account of an objection filed by respondent
no.2, the same has not been released. The court has perused the objections
preferred by respondent no.2 in which it is stated that the amount was
meant for being paid to wife and for her maintenance and, therefore,
mother has no right to receive the same.

8. A significant question has arisen for adjudication by this Court, that is
to say that in a case divorce is granted based upon mutual consent subject
to payment of certain amount to the wife and if, after the decree is passed
but before the amount is received by the divorced wife, she dies, whether
legal representative(s) of the deceased divorced wife would be entitled to
receive the amount.

LAW OF SUCCESSION IN MONEY MATTERS

9. The Court may observe that movable and immovable properties owned
by either Hindu male or female devolve by succession as per the
provisions of the Hindu Succession Act, 1956 or Indian Succession Act,
1925. Since, in the present case, the amount was awarded in favour of
wife and a cheque was also prepared by the Family Court on 06.07.2024
but before it could be paid to the divorced wife, i.e. daughter of the
petitioner, she died on 16.07.2024, provisions of Section 14 of the Hindu
Succession Act, 1956 need reference. The same read as under:-
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         “14. Property of a female Hindu to be her absolute property.―

         (1) Any property possessed by a female Hindu, whether acquired
         before or after the commencement of this Act, shall be held by
         her as full owner thereof and not as a limited owner.

         Explanation.―In this sub-section, “property” includes both
         movable and immovable property acquired by a female Hindu by
         inheritance or devise, or at a partition, or in lieu of maintenance or
         arrears of maintenance, or by gift from any person, whether a
         relative or not, before, at or after her marriage, or by her own skill or
         exertion, or by purchase or by prescription, or in any other manner
         whatsoever, and also any such property held by her as stridhana
         immediately before the commencement of this Act.

         (2) Nothing contained in sub-section (1) shall apply to any property
         acquired by way of gift or under a will or any other instrument or
         under a decree or order of a civil court or under an award where the
         terms of the gift, will or other instrument or the decree, order or
         award prescribe a restricted estate in such property.

10. A bare perusal of Section 14 indicates that any property possessed
by a female Hindu shall be held by her as full owner thereof and not as
of limited owner. Explanation to sub-section (1) of Section 14 includes in
the definition of ‘property’, movable and immovable property acquired by
a female Hindu by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance ….. or in any other manner
whatsoever …. However, there is a restriction provided under sub-
section (2) of Section 14 to the effect that the provisions of sub-section
(1) shall not apply to any property where terms of any instrument or
decree or order of a civil court or award prescribe a restricted estate
in such a property.

11. In the present case, the order passed by the Family Court does not
prescribe a restricted estate in the property, i.e. the sum directed to be
received by the wife and even if the order passed by the Family Court is
read in a sense that the amount to be received by the wife after divorce
was meant for her maintenance, although no such specification was made
in the order rather qua the amount it was indicated that lump sum
payment of money is a condition for grant of decree which includes
Stridhana etc., provisions of Section 15 of the Hindu Succession Act
may come in picture which reads as under:-

         15. General rules of succession in the case of female Hindus.―
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         (1) The property of a female Hindu dying intestate shall devolve
         according to the rules set out in section 16,―

         (a) firstly, upon the sons and daughters (including the children of
         any pre-deceased son or daughter) and the husband;

         (b) secondly, upon the heirs of the husband;

         (c) thirdly, upon the mother and father;

         (d) fourthly, upon the heirs of the father; and

         (e) lastly, upon the heirs of the mother.

         (2) Notwithstanding anything contained in sub-section (1),―

         (a) any property inherited by a female Hindu from her father or
         mother shall devolve, in the absence of any son or daughter of the
         deceased(including the children of any pre-deceased son or
         daughter) not upon the other heirs referred in sub-section (1) in the
         order specified therein, but upon the heirs of the father; and

         (b) any property inherited by a female Hindu from her husband or
         from her father-in-law shall devolve, in the absence of any son or
         daughter of the deceased (including the children of any pre-deceased
         son or daughter) not upon the other heirs referred to in sub-section
         (1) in the order specified therein, but upon the heirs of the husband.”

12. As per Section 15 of the Act, the property of a female Hindu dying int
estate shall devolve according to the Rules set out in Section 16, (a)
firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband; (b) secondly, upon the heirs
of the husband; (c) thirdly, upon the mother and father; …..

13. In the present case, the persons falling in the category of clause (a)
and (b) of sub-section (1) are not existent, inasmuch as it has come in the
order of the Family Court that no issue was born out of wedlock of the
parties who were residing separately for the last ten years. Further, since
status of the plaintiff-respondent (husband) ceased as such after the decree
of divorce was granted, there is no question of devolution of property
(money) of the deceased upon any heir of the husband.

14. In the aforesaid circumstances, clause (c) of sub-section (1) of Section
15 would come into picture and property of the deceased divorced wife
would devolve upon her mother and father. The petitioner being a
widowed mother, as indicated in the certificate issued by the District
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Magistrate, no heir was left by the deceased.

LEGAL REPRESENTATIVE

15. The matter can be seen from another angle, i.e. in the light of Section
2(11) of the Code of Civil Procedure, which defines ‘legal
representatives’ as under:-

         “2(11) “legal representative” means a person who in law represents
         the estate of a deceased person, and includes any person who
         intermeddles with the estate of the deceased and where a party
         sues or is sued in a representative character the person on whom the
         estate devolves on the death of the party so suing or sued;”

16. Word “estate” has been defined in 7th edition of Blacks’ Law
Dictionary as the amount, degree, nature and quality of a person’s interest
in land other property. 2. All that a person or entity owns, including both
real and personal property. 3. The property that one leaves after death; the
collective assets and liabilities of a dead person. 4. A tract of land esp.
one affected by an easement.”

17. In the opinion of the Court, the money lying deposited before the
Family Court and not paid either to the divorced wife who is no more or
to the petitioner, is covered by the word ‘estate’ and the petitioner being
legal representative/heir of her deceased daughter, would be entitled to
receive the same. The principle of ‘actionable claim’ can also be utilized
in the present case for the purpose.

CONTINUANCE OF CLAIM BY A PERSON CLAIMING UNDER THE
ORIGINAL

18. There is a third dimension of this case, which lies under Section 146
CPC, which reads as under:-

          "146. Proceedings by or against representatives.-

          Save as otherwise provided by this Code or by any law for the time
          being in force, where any proceeding may be taken or application
          made by or against any person then the proceeding may be taken or
          the application may be made by or against any person claiming
          under him.”

19. In view of Section 146, it is clear that where any proceeding may be
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taken or application made by or against any person, such proceeding may
be taken or the application may be made by or against any person
claiming under him. Therefore, if the application moved by the
petitioner’s daughter on 24.05.2024 when she was alive, could not
materialize in terms of release of payment of Rs. 16 lakh though the
cheque was prepared by the Family Court on 06.07.2024, the application
could be pursued by the petitioner being her mother in terms of Section
146 CPC and, for that purpose, no other proceedings were required to be
instituted.

FEW PRECEDENTS TOUCHING THE ISSUE

20. The Hon’ble Supreme Court in Yallawwa Vs. Shantavva: (1997) 1
SCC 159 has discussed devolution of interest in the property of a female
Hindu as per the Section 15 of the Act, 1956 and has held that in a case
where divorce decree is granted, spouses do not remain husband and wife
and, therefore, the mutual rights of inheritance in each other’s property on
the death of either of them get extinguished. The Hon’ble Supreme Court
has also discussed the effect of Section 305 of Indian Succession Act,
1925 observing that an executor or administrator has the same power to
sue in respect of all causes of action that survive the deceased and may
exercise the same power for recovery of debts as the deceased had when
living.

21. In V. Tulasamma and others Vs. Sesha Reddy (Dead) by Lrs.:
(1977) 3 SCC 99, the Hon’ble Supreme Court, in light of the provisions
of Section 14 of the Hindu Succession Act, has held that sub-section (1)
of Section 14 is large in its amplitude and covers every kind of acquisition
of property by a female Hindu including acquisition in lieu of
maintenance and she would become full owner of the same.

22. In Melepurath Sankunni Ezhuthassan Vs. Thekittil
Geopalankutty Nair: (1986) 1 SCC 118, the Hon’ble Supreme Court,
after dealing with the provisions of Section 306 of the Indian Succession
Act, 1925, has held that rights of action of or against deceased survive to
and against executor or administrator and the position must necessarily
prevail in the case of legal representative and what applies to the
executors and administrators, will also apply to a legal representative.
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                                    CONCLUSION

                                    23. In view of the above discussion, this Court has no hesitation in
                                    holding that the petitioner is entitled to receive the amount of Rs. 16 lakh
                                    lying in the Family Court as a legal representative of her deceased
                                    divorced wife and as the only living successor left by her.

                                    24. The petition is allowed and the Principal Judge, Family Court, Banda
                                    is directed to release the amount of Rs. 16 lakh in favour of the petitioner
                                    in furtherance of the decree drawn in Suit No. 103 of 2023, within a
                                    period of two weeks from the date a certified copy of this order alongwith
                                    a fresh application is filed before him.



                                                                                        (Kshitij Shailendra,J.)
                                    April 20, 2026
                                    AKShukla/Kumar Manish




Digitally signed by :-
ANIL KUMAR SHUKLA
High Court of Judicature at Allahabad