TMI Blog1978 (4) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 27-4-1978 - Judge(s) : P. N. SHINGHAL., V. D. TULZAPURKAR., Y. V. CHANDRACHUD JUDGMENT The judgment of the court was delivered by CHANDRACHUD C.J.-It will be easier, with the, help of the following pedigree, to understand the point involved in this appeal: KHANDAPPA SANGAPPA MAGDUM = HIRABAI (Plaintiff) Gurupad Biyawwa Bhagirathibai Dhandubai Shivpad (Defendant (Defendant (Defendant (Defendant (Defendant No. 1) No. 3) No. 4) No. 5) No. 2) Khandappa died on June 27, 1960, leaving him surviving his wife, Hirabai, who is the plaintiff, two sons, Gurupad and Shivpad, who are defendants 1 and 2, respectively, and three daughters, defendants 3 to 5. On November 6,1962, Hirabai filed Special Civil Suit No. 26 of 1963 in the court of the, joint Civil judge, Senior Division, Sangli, for partition and separate possession of a 7/24ths share in two houses, land, two shops and movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons. If a partition were to take place during Khandappa's lifetime between himself and his two sons, the plaintiff would have got a 1/4th share in the joint family propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame learned judge, Patel J. On further consideration the learned judge felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of the law, the widow's share must be ascertained by adding the share to which she is entitled at notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. In the judgment under appeal, the High Court has based itself on the judgment in Rangubai. AIR 1966 Bom 169, endorsing indirectly the view that Shiramabai was incorrectly decided. Since the view of the High Court that the suit properties belonged to the joint family and that there was no prior partition is well founded and is not seriously disputed, the decision of this appeal rests on the interpretation of Expln. 1 to s. 6 of the Hindu Succession Act (30 of 1956). That section reads thus : " When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given to Expln. of s. 6. The interpretation of that Explanation is the subject-matter of acute controversy between the parties. Before considering the implications of Expln. 1. it is necessary to remember that what s. 6 deals with is devolution of the interest which male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Expln. 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject-matter which the section itself deals with. In the instant case, the plaintiff's suit, based as it is on the provisions of s. 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff : One, her share in her husband's share and two, her husband's own share in the coparcenary property. The proviso to s. 6 contains the formula for fixing the share of the claimant while Expln. 1 contains a formula for deducing the share of the deceased. The plaintiff's share, by the application of the proviso, has to be determined according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the plaintiff in the 1/4 th share is, 1/6 th share, that is to say, 1/24th. So far, there is no difficulty. The question which poses a some what difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24ths. The learned trial, judge, relying upon the decision in Shiramabai, AIR 1964 Bom 263, which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been partition during her husband's lifetime between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Expln. 1. That Explanation compels the assumption of a ficti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f affairs." In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to s. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be " the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Expln. 1 are reasonably possible, we must prefer that interpretation which will further the intention of the Legislature and remedy the injustice from which the Hindu women have suffered over the years. We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai v. Laxman Lalji Patil, AIR 1966 Bom 169, in which Patel J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai v. Kalgonda Bhimgonda, AIR 1964 Bom 263, as incorrect. Recently, a Fall Bench of that High Court in Sushilabai Ramchandra Kulkarni v. Narayanrao Gopalrao Deshpande, AIR 1975 Bom 257 [FB], the Gujarat High Court in Vidyaben v. Jagdishchandra N. Bhatt, AIR 1974 Guj 23 and the High Court of Orissa in Ananda Naik v. Haribandhu Naik, AIR 1967 Orissa 194, have taken the same view. The Full Bench of the Bombay High Court in Sushilabai, AIR 1975 Bom 257, has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C. J., who has spoken for the Bench. For these reasons, we confirm the judgment of the High Court and dismiss the appeal with costs. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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