Gurupad Khandappa Magdum Vs. Hirabai
Khandappa Magdum & Ors [1978] INSC 95 (27 April 1978)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) SHINGAL, P.N.
TULZAPURKAR, V.D.
CITATION: 1978 AIR 1239 1978 SCR (3) 761 1978
SCC (3) 383
CITATOR INFO:
F 1985 SC1716 (8)
ACT:
Hindu Succession Act (Act 30 of 1956),
Section 6 Explanation 1-Interpretation of-Widow's share must be ascertained by
adding the share to which she is entitled at a notional portion during her
husband's life time and the share she would get in her husband's interest upon
his death.
HEADNOTE:
Khandappa Sangappa Magdum died on June 27, 1960 leaving behind, his widow Hirabai, two sons Gurupad and Shivapad and three
daughters. On November, 6, 1952 Hirabai filed special civil suit No. 26/53 for
partition and separate possession of a 7/24 share in two houses, a land, two
shops and mov- ables on the basis that these properties belonged to the joint
family consisting of her husband, and their two sons.
The case of the plaintiff was that if a partition
were to take place during Khandappa's life time between himself and his two
sons the plaintiff would have got a 1/4th share each on the death of Khandappa,
Her further case was that Khandappa's 1/4th share could devolve upon his death
on six sharers, entitling her to 1/24th share besides. The trial Court found
that the suit properties belonged to the joint family and that there was no
prior partition. Following the judgment of the Bombay High Court in Shiramabai
Bhimgonda v. Kalgonda [1963] 66 Bom. L.R. 351, limited her share to only 1/24th
and refused to add 1/4th and 1/24th together.
Dismissing the defendant's appeal 524/66 and
allowing the cross-objections of the plaintiff, the Bombay High Court, by its
judgment dated March 19, 1975 following 68 Rom. L.R. 74 which overruled 66 Bom.
L.R. 351, held that the plaintiff wag entitled to 7/24th share.
Dismissing the appeal by special leave, the
Court.
HELD : 1. (a) What Section 6 of the Hindu
Succession Act.
1956 deals with is the devolution of the interest
which a male Hindu has in a Mitakshara property at the time of his death. The
proviso to Section 6 contains a formula, for fixing the share of the claimants
while Explanation I contains a formula for deducing the share of the deceased.
[765 H, 766 A-B] (b) Explanation I which
contains the formula for determining the share of the deceased creates a
fiction by providing 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 the property had taken place immediately before his death.
Whether a partition had actually taken place between the plaintiffs husband and
his sons is beside the point for the purposes of Explanation 1. That
Explanation compels the assumption of a fiction that in fact "a partition
of the property had taken place", the point of time of the partition being
the one immediately before the death of the person in whose property the heirs
claim a share. The fiction created by Explanation I has to be given its due and
full effect. [766 E-F, 767 C- D] Commissioner of Income Tax, Delhi v. S. Teja
Singh, [1959] Suppl. S.C.R. 39; applied.
East End Dwellings Co. Ltd. v. Finsbury
Borough Council, 1952 AC 109/ 132, quoted with approval
2. (a) 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 they Very first step to ascertain the share of the
deceased in the coparcenary property , by dong that alone can one determine the
extent of the claimant's share. Explanation 1 to section 6 resorts to the
simple expedient, undoubtedly factional, that.
14-315SCI/78 762 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 deemed 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 the ultimate share of the heirs, through all its stages. To
make the assumption at the initial stage for the limited purpose of
ascertaining the share of the deceased and then to ignore it for calculating
the quantum of the share of the heirs is truly to permit one's imagination to
boggle. All the consequences which flow from a real partition have to be
logically worked out, which means that the share of the heirs must be
ascertained on the basis that they had separated from one another and had
received a share in the partition which had taken place during the life time of
the deceased. The allotment of this share is not a processual step devised
merely for the purpose of working out some other conclusion. it has to be
treated and accepted as a concrete reality, something that cannot be recalled
just as a share allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this position is that the
heir will get his or her share in the interest which the deceased had in the
coparcenary property at the time of his death, in addition to the share which he
or she received or must be deemed to have received in the notional partition.
[768 B-G] (b) Ibis interpretation furthers the legislative intent in regard to
the enlargement of the share of female heirs, qualitatively and quantatively.
Even assuming that two interpretations of Explanation 1 are reasonably
possible, Courts 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. By restricting the operation of the fiction
created by Explana- tion I in the manner suggested by the appellant, Courts,
shall be taking a retrograde step, putting back as it were the clock of social
reform which has enabled the Hindu women to acquire an equal status with males
in matters of pro- perty. [768 G, 769 A-B] Rangubhai Lalji v. Laxman Lalji, 68
(Bom) L.R. 74;
Sushilabai Ramachandra Kulkarni v,
Narayanarao Gopalrao Deshpande and Ors., A.I.R. (1975) Bom. 257; Vidyaben v. Jagadishchandra
N. Bhatt, A.I.R. 1974 Guj. 23; Ananda v. Haribandu, A.I.R. 1967 Orissa 194;
approved.
3. In the instant case, (a) There is 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 a partition during her
husband's life time between him and his two sons. In a partition between
Khandappa and his two sons, there would be four sharers in the coparcenary
property, the fourth being Khandappa's wife, the plaintiff. Khandappa would
have therefore got a 1/4th share in the coparcenary property on the hypothesis
of a partition between himself and his sons.
[766 G-H, 767 B-C] (b) By the application of
the normal rule prescribed by Section 6 of the Hindu Succession: Act, 1956,
Khandappa's interest in the coparcenary property would devolve by survivorship
upon the surviving members of the coparcenary and not in accordance with the
provisions of the Act. But, since the widow and daughter are amongst the female
relatives specified in class I of the Schedule to the Act and Khandappa died
leaving behind a widow and daughters, ,he proviso to section 6 comes into play
and the normal rule is excluded. Khandappa's interest in the coparcenary
property would therefore devolve, according to the proviso, by intestate
succession under the Act and not by survivorship.
Testamentary succession is out of question as
the deceased had not made a testamentary disposition though, under the
explanation to section 763 30 of the Act, the interest of a male Hindu in
Mitakshara coparcenary. property is capable of being disposed of by a will or
other testamentary disposition. [765 E-G] (c) The plaintiff's share as
determined by the application of the rules of intestate succession contained in
Sections 8, 9 and 10 of the Hindu Succession . Act will be 1/6th.
The deceased Khandappa died leaving behind
him two sons, three daughters and a widow. The son, daughter. and widow are
mentioned as heirs in class I of the Schedule and therefore, by reason of the
provisions of section 8(a) read with the 1st clause of section 9, they take
simultaneously and to the exclusion of other heirs. As between them the two
son's, the three daughters and the widow will take equally. each having one
share in the deceased's property under section 10 read with Rules 1 and 2 of
that section.
[766-C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 182 828 of 1975.
Appeal by Special Leave from the Judgment and
Order dated the 19th March, 1975 of the Bombay High Court in First Appeal No.
524 of 1966 from original decree.
R. B. Datar for the Appellant.
V. N. Ganpule and (Mrs.) V. D. Khanna for the
respondent.
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 Dhundubai Shivapad (Deft. 1) (Deft.
3) (Deft. 4)1 (Deft. 5) (Deft. 2) Khandappa died on June 27, 1960 leaving him surviving
his wife Hirabai who is the plaintiff, two sons Gurupad and Shivapad, 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 7/24th share in two houses, a land, two shops avoid 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 1/4th share in the joint family properties, the other three getting 1/4th
share each. Khandappa's 1/4th share would devolve upon his death on six
sharers, the plaintiff and her five children, each having a 1/24th share
therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share in the
joint family properties. That, in short, is the plaintiffs case.
Defendants 2 to 5 admitted the plaintiff's
claim, the suit having H been contested by defendant 1, Gurupad, only. He
contended that the suit properties did not belong to the joint family, that
they were Khandappa's self-requisitions and that, on the date of Khandappa's
764 death in 1960 there was no joint family in existence. He alleged that
Khandappa had effected a partition of the suit properties between himself and
his two sons in December 1952 and December 1954 and that, by a family
arrangement dated March 31, 1955 he bad given directions for disposal of the
share which was reserved by him-for himself in the earlier partitions. There
was, therefore, no question of a fresh partition. That, in short, is the case
of defendant 1.
The trial court by its judgment dated July
13, 1965 rejected defendant 1's case that the properties were Khandappa's
self-acquisitions and that he had partitioned them during his lifetime. Upon
that finding the plaintiff. became indisputably entitled to a share in the
joint family properties but, following the judgment of the Bombay High Court in
Shiramabai Bhimgonda v. Kalgonda(1) the learned trial judge limited that share
to 1/24th, refusing to add 1/4th and 1/24th together. As against that decree,
defendant 1 filed first appeal No. 524 of 1966 in the Bombay High Court, while
the plaintiff filed cross-objections. By a judgment dated March 19, 1975 a
Division Bench of the High Court dismissed defendant 1's appeal and allowed the
plaintiff's cross-objections by holding that the suit properties belonged to the
joint family, that there was no prior partition and that the plaintiff is
entitled to a 7/24th share. Defendant I has filed this appeal against the High
Court's judgment by special leave.
Another Division Bench of the Bombay High
Court in Rangubai Lalji v. Laxman Lalji(2) had already reconsidered and
dissented from earlier Division Bench judgment in Shiramabai Bhimgonda(1) In
these two cases, the judgment of the Bench was delivered by the same learned
Judge, Patel J. On further consideration the learned Judge felt that
Shiramabai(1) was not fully argued and was incorrectly decided and that on a
true view of law, the widow's share must be ascertained by adding the share to
which she is entitled at a notional partition during her husband's life time
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 Lalji(2) endorsing indirectly the view that Shiramabai(1) 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 Explanation 1 to section 6 of the Hindu
Succession Act, (30 of 1956). That section reads thus "6. 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
(1)(1963)66Bom.L.R.351.
(2) 68 Bom. LR. 74.
765 shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance with this Act :
Provided that, if the deceased had left him
surviving a female relative specified in class I of the Schedule or a male
relative specified in that class who claims through such a female relative, the
interest of the deceased in the Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as- the case may be, under this Act
and not by survivorship.
Explanation I.-For the purposes of this
section, 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 the property had taken place immediately before his death, irrespective of
whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the
proviso to this section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the deceased or any
of his heirs to claim on intestacy a share in the interest referred to
therein." The Hindu Succession Act came into force on June 17, 1956,
Khandappa having died after the commencement of that Act, to wit in 1960, and
since he had at the time of his death an interest in Mitakshara coparcenary
property, the pre- conditions of section 6 are satisfied and that section is
squarely attracted. By the application of the normal rule prescribed by that
section, Khandappa's interest in the coparcenary property would devolve by
survivorship upon the surviving members of the coparcenary and not in
accordance with the provisions of the Act. But, since the widow and daughter
are amongst the female relatives specified in class I of the Schedule to the
Act and Khandappa died leaving behind a widow and daughters, the proviso to
section 6 comes into play and the normal rule is excluded. Khandappa's interest
in the coparcenary property would therefore devolve, according to the proviso,
by intestate succession under the Act and not by survivorshop. Testamentary
successive is out of question as the deceased had not made a testamentary
disposition though under the explanation to section 30 of the Act, the interest
of a male Hindu in Mitakshara coparcenary property is capable of being disposed
of by a will or other testamentary disposition.
There is thus no dispute that the normal rule
provided for by section 6 does not apply, that the proviso to that section is
attracted and that the decision of the appeal must turn on the meaning to be
given to Explanation 1 of section 6. The interpretation of that Explanation is
the subject-matter of acute controversy between the parties.
Before considering the implications of
Explanation 1, it is necessary to remember that what section 6 deals with is
devolution of the interest which a male Hindu has in a Mitakshare coparcenary
property at 766 the time of his death. Since Explanation 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
section 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 section 6 contains the formula
for fixing the share of the claimant while Explanation 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 to the terms of the testamentary
instrument, if any, made by the deceased and since there is none in the instant
case, by the application of the rules of intestate succession contained in
sections 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died
leaving behind him two sons, three daughters and a widow.
The son, daughter and a widow are mentioned
as heirs in class I of the Schedule and therefore, by reason of the provisions
of section 8(a) read with the 1st clause of section 9, they take simultaneously
and to the exclusion of other heirs. As between them the two sons, the three
daughters and the widow will take equally, each having one share in the
deceased's property under section 10 read with Rules 1 and 2 of that section.
Thus, whatever be the share of the deceased in the coparcenary property, since
there are six sharers in that property each having an equal share, the
plaintiff's share therein will be 1/6th.
The next step, equally important though not
equally easy to work out, is to find out the share which the deceased had in
the coparcenary property because after all, the plaintiff has a 1/6th interest
in that share. Explanation 1 which contains the formula for determining the
share of the deceased creates a fiction by providing that the interest of a
Hindu Mistakshara coparcener shall be deemed to be the share in the property
that would have been allotted to him if a partition of the property had taken
place immediately before his death. One must, therefore, imagine a state of
affairs in which a little prior to Khandappa's death, a partition of the
coparcenary property was effected between him and other members of the
coparcenary. Though the plaintiff, not being a coparcener, was not entitled to
demand partition yet, if a partition were to take place between her husband and
his two sons, she would be entitled to receive a share equal to that of a son.
(see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In a partition
between Khandappa and his two sons, there would be four sharers in the coparcenary
property, the fourth being Khandappa's wife, the plaintiff. Khandappa would
have therefore got a 1/4th share in the coparcenary property on the hypothesis
of a partition between himself and, his sons Two things are thus clears : One,
that in a partition of the coparcenary property Khandappa would have obtained a
1/4th share and 767 two, that the share of the plaintiff in the 1/4th share is
1/6th, that is to say, 1/24th. So far there is no difficulty. The question
which poses a somewhat 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, 7/24th. The learned trial Judge, relying upon the decision in
Shiramabai 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 a partition during her husband's life time 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 Explanation 1.
That Explanation compels the assumption of a fiction that in fact "a
partition of the 'property had taken place", the point of time of the
partition being the one immediately before the death of the person in whose
property the heirs claim a share.
The fiction created by Explanation 1 has to
be given its due and full effect as the fiction created by section 18A(9) (b)
of the Indian Income-tax Act, 1922, was given by this Court in Commissioner of
Income-tax, Delhi v. S. Teja Singh(1).
It was held in that case that the fiction
that the failure to send an estimate of tax on income under section 18A(3) is
to be deemed to be a failure to send a return, necessarily involves the fiction
that a notice had been issued to the assessee under section 22 and that he had
failed to comply with it. In an important aspect, the case before us is
stronger in the matter of working out the fiction because in Teja Singh's case,
a missing step had to be supplied which was not provided for by section 18A(9)
If b), namely, the issuance of a notice under section 22 and the failure to
comply with that notice. Section 18A(9) (b) stopped at creating the fiction
that when a person fails to send an estimate of tax on his income under section
18A(3) he shall be deemed to have failed to furnish a return of his income.
The section did not provide further that in
the circumstances therein stated, a notice under section 22 shall be deemed to
have been issued and the notice shall be deemed not to have been complied with.
These latter assumptions in regard to the issuance of the notice under section
22 and its non-compliance bad to be, made for the purpose of giving due and
full effect to the fiction created by section 18A(9) (b). In our case it is not
necessary, for the purposes of working out the fiction, to assume and supply a
missing link which is really what was meant by Lord Asquith in his famous
passage in East End Dwellings Co. Ltd.
v. Finsbury Borough Council.(1) He said if
you are bidden to treat an imaginary state of affairs as real, you must also
imagine as real the consequences and (1) [1959] Stipp. 1 S.C.R. 394 (2) [1952]
A.C. 109/132 768 incidents which, if the putative state of affairs had in fact
existed, must inevitably have flowed from or accompanied it; and if the statute
says that you must imagine a certain state of affairs, it cannot be interpreted
to mean that having done so, you must cause or permit your imagination to
boggle when it comes to the inevitable corollaries of that state of 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 section 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 the ultimate share of the heirs, through all its
stages. To make the assumption at the initial stage for the limited purpose of
ascertaining the share of the deceased and then to ignore it for calculating
the quantum of the share of the heirs is truly to permit one's imagination to
boggle. All the consequences which flow from a real partition have to be
logically worked out, which means that the share of the heirs must be
ascertained on the basis that they bad separated from one another and had
received a share in the partition which had taken place during the life time of
the deceased. The allotment of this share is not a processual step devised
merely for the purpose of working out some other conclusion. It has to be-
treated and accepted as a concrete reality, something that cannot be recalled
just as a share allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this position is that the
heir will get his or her share in the interest which the deceased bad in the
coparcenary property at the time of his death, in addition to the share which
he or she received or must be deemed to have received in the notional partition.
The interpretation which we are placing upon
the provisions of section 6, its proviso and explanation I thereto will further
the legislative intent in regard to the enlargement of the share of female
heirs, qualitatively and quantitatively. The Hindu Law of Inheritance
(Amendment) Act, 1929 conferred heirship rights on the son's daughter,
daughter's daughter and sister in all areas where the Mitakshara law prevailed.
Section 3 of the Hindu Women's Rights to Property Act. 1937, speaking broadly,
conferred upon the Hindu widow the right to a share in the joint family
property as also a right to demand partition like any male member of the
family. The Hindu Succession 769 Act, 1956 provides by section 14(1) that any
property possessed by a female Hindu, whether acquired before or after the
commencement of the Act, shall be held by her as a full owner thereof and not
as a limited owner. By restricting the operation of the fiction created by
Explanation I in the manner suggested by the appellant, we shall be taking a
retrograde step, putting back as it were the clock of social reform which has
enabled the Hindu Woman to acquire an equal status with males in matters of
property. Even assuming that two interpretations of Explanation I 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 Lalji
v. Laxman Lalji (supra) in which Patel, J., very fairly, pronounced his own
earlier judgment to the contrary in Shiramabai Bhimgonda v. Kalgonda (supra) as
incorrect.
Recently, a Full Bench of that High Court in
Sushilabai Ramachandra Kulkarni v. Narayanrao Gopalrao Deshpande & Ors.,(1)
the Gujarat High Court in Vidyaben v.
Jagdishchandra N. Bhatt(2) and the High Court
of Orissa in Ananda v. Haribandhu(3) have taken the same view. The Full Bench
of the Bombay High ,Court in Sushilabai (supra) 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.
S.R. Appeal dismissed.
(1) A.I.R. 1975 (Bombay) 257.
(2) A.I.R. 1974 Guj. 23.
(3) A.I.R. 1967 Orissa 194.
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