TMI Blog1972 (7) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased born by his pre-deceased first wife. Nandshanker died on 16-1-1960 at Ahmedabad leaving behind him surviving the plaintiff and all the defendants. He left the immovable property known as Shanker Niwas as described in Para 3 of the plaint and also some cash as averred by the plaintiff. According to the plaintiff, all the property left by Nandshanker Bhatt was his self acquired property and all the parties to the suit had 1/6 share therein as his heirs. On that basis, she claimed partition of her share and physical possession thereof. Defendants Nos. 1. 2 and 3 resisted the plaintiff's suit by written statement Ex. 9. They contended that the plaintiff had no right to file a' suit in respect of the suit property; that the suit property was not separate and self acquired Property of the deceased; that it was acquired by the deceased from the funds of the joint family and therefore, defendant No. 1 who was the son of the deceased was a coparcener along with him and after his death, he became the sole owner of the suit property by survivorship. In the alternative, it was urged by them that even if the suit property was found to be separate or self acquired property of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Hindu Womens Rights to Property Act, 1937 and as the said Act was repealed by S. 31 of the Hindu Succession Act, 1956 she could not claim Partition of the joint family property and she would be entitled only to be maintained out of the said property as long as the property remained joint in the hands of the coparceners. But in case of partition between the coparceners, she would be entitled to a share therein. Mr. Desai invited my attention to the evidence on record which clearly disclosed that the suit house was acquired by the deceased Nandshanker out of the joint family property and therefore, he urged that the learned Judge was right in negativing the plaintiff's contention that the property was self acquired property of Nandshanker Bhatt. Mr. Desai submitted that under the proviso and the explanation to Section 6 of the Act, in order to ascertain the share of the deceased coparcener in the joint family property only notional division was envisaged and no actual partition was deemed or was to be effected. He therefore, urged that the only purpose of this Section is to ascertain the share of the deceased in the joint family property for the purpose of being distributed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low as well as two houses situated at Kaira had been sold by Nandshanker. The plaintiff has been unable to account for the sale proceeds of these three properties. Soon after the sale of these properties, the deceased had purchased the land and thereafter began to construct the bungalow at Ahmedabad. It is. therefore, clear that there was joint family nucleus from which the deceased was able to construct this building. It cannot, therefore, be said that the deceased had built the house with his own money. Once it is established that there was sufficient joint family nucleus in the hands of the deceased. even though prima facie the burden was on the defendants to establish that the property which was built by the deceased was joint family property, the said burden shifted on the plaintiff. In the instant case it was established that there was some nucleus from which the construction could be made. The Plaintiff has been unable to rebut this presumption. She has been unable to lead any evidence showing that the moneys realized by her husband out of the s ale proceeds were utilised toward the maintenance of the family member-, and that the bungalow was constructed out of his own self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein not only for herself but for each of the defendants. Mr. Desai, therefore, urged that once the basis of the suit is knocked down and if the property is held to be the Joint family property, could the plaintiff claim partition and possession of her share in the suit property? According to Mr. Desai, she could not claim any partition of her -share in the joint family property but she would only be entitled to a share as an heir in the interest of her deceased husband in the joint family property, at the most. According to him, Section 6 of the Act did not envisage any partition between the members of the family it merely pertained to devolution of the interest of the deceased in the joint family property and had nothing to do with the partition of the share of other coparceners therein. Mr. Desai submitted that the plaintiff was not a coparcener in her own right in the sense that she did not possess any interest by birth in the joint family property. She, therefore, could not claim any partition of the suit property and she would be entitled to a share therein only, if there was partition between her husband and other coparceners. In the instant case, as the husband had died with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, if there was partition during the lifetime of Nandshanker each of them would get 1/3 share therein, Thus, as stated in explanation 1 the share of the deceased Nandshanker in the joint family property would be 1/3 and no more. Mr. Desai, learned Advocate for respondents Nos. 1 to 3 accepted this position. His say, however, is that after this 1/3 share is divided amongst the heirs of the deceased, the remaining 2/3 would go by survivorship to defendant No. 1 who was his son and the plaintiff being the widow had no right to claim any partition therein. She would merely be entitled to maintenance in lieu of her interest in the suit property. He conceded that if there was partition between the defendant No. 1 and his sons who may subsequently be born to defendant No. 1 and if the plaintiff was alive then, she would be entitled to a share therein but she herself cannot claim any partition of the joint family property in view of the fact that the Hindu Women's Rights to Property Act, 1937 was repealed by Section 31 of the Hindu Succession Act, 1956. 7. It is true that prior to the coming into force of the Hindu Women's Rights to Property Act, 1937, the wife did not pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notional partition of the property was envisaged. But that would not mean that actual partition was visualized by the legislature and that the moment the interest of the deceased in the joint family property was ascertained, the joint family status would automatically come to an end and the widow or any female heir would be entitled to claim partition therein. Mr. Desai in support of his submission referred to the history and growth of the Hindu Law. He urged that when the Hindu Succession Act was on the anvil there was great conflict between the orthodox section of the Hindus and the reformists. Ultimately, a balance was struck by the legislature and Hindu Succession Act saw the light of the day. Under this Act, the notion of the joint family property was not done away with. According to Mr. Desai, if coparcenary existed even after the said Act came into force, all other incidents of coparcenary property would remain intact save those which were specifically amended, modified or repealed by the provisions of this Act. Mr. Desai urged that the legal fiction was created for the limited purpose of ascertaining the share of the deceased in the joint family property and the said ficti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been allotted to him if the partition of the property had taken place immediately before his death. As already observed above, if the partition had taken place immediately before the death of Nandshanker, the plaintiff would have been entitled to a share equal to that of her husband and the son. If the plaintiff would have been entitled to a hare in the joint family Property if the partition had taken place during the lifetime of her husband and if before effecting the partition, the husband dies and his interest in the property has to be severed on the legal fiction that his share would be the share which would have been allotted to him on Partition just prior to his death I fail to understand why the plaintiff would not be entitled to claim 1/3 share in this suit for partition. In my opinion the moment the interest of the deceased in the joint family, property is severed, the joint family status would come to an end and it would be open to the widow to claim partition therein. It is difficult to envisage a position that even though the share of the deceased has to be ascertained on the footing that the wife would get the share if there was partition of the joint family Property j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his share cannot be possibly determined. In Section 7 which makes provision for succession to persons governed by Marumakkattayam or Nambudri law by sub-section (1), and to persons who are governed by Aliyasantana law by sub-section (2), there is an explanation to each which also defines the interest of such coparcener to mean such share in the property that would have fallen to him or her if partition of the property per capita had been made immediately before his or her death and such share is deemed to have been allotted to him or her absolutely. It would therefore appear from the scheme of Sections 6 and 7 that the Legislature intended that it shall be deemed that there was a partition in fact and substance and that such property as would be available to the deceased would be divisible among his heirs. If this is so, can it then be said that though the Legislature intended that there shall be deemed to be partition of the property and the share of the deceased coparcener shall be deemed to have been separated, the share to which the wife would be entitled should fall in vacuum and no relief can be granted to her? To put it in other words, where the wife of such coparcener i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chitale, JJ., wherein it was observed that:- It is not possible to uphold the contention of the appellant that as the explanation to Section 6 defines the interest of the coparcener to be the share that the father would have got on a partition it amounts to an express saving of that rule of partition for the obvious reason that, it does not enjoin actual Partition and does not enable the mother to reduce her share into possession. The explanation is intended to be of general application and cannot be treated as saving the above said rule of partition. To uphold the contention would produce most unjust results which could never have been intended by the legislature. It may be noted that in the latter Bombay case in AIR 1966 Bom 169 (supra), the Division Bench which included Patel, J. did not follow this decision and held: that the mother would be entitled to a share. The Bombay High Court took a view that from the scheme of Sections 6 and 7, it appeared that the Legislature, intended that there was a partition in, fact and substance and that the said property as would be available to the deceased would be divisible amongst his heirs. In my view, the latter decision see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents Nos. 4 and 5, is getting 1/3+1/18 share in the suit property. Each of the respondents Nos. 4 and 5 also would be getting 1/18 share therein. In view of this state of affairs, it is not necessary to pass any order for marriage expenses of the said two daughters. In my opinion, from her share, the plaintiff would be able to meet the marriage expenses of her daughters. 9. Lastly, Mr. Desai, learned Advocate for the respondents Nos. 1 to 3 invited my attention to Section 23 of the Act which says that Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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