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GURUPAD KHANDAPPA MAGDUM V/S HIRABAI KHANDAPPA MAGDUM AND OTHERS , decided on Thursday, April 27, 1978.
[ In the Supreme Court of India, CA No. 1828 of 1975 . ] 27/04/1978
Judge(s) : Y. V. CHANDRACHUD (CJI), P. N. SHINGHAL AND V. D. TULZAPURKAR
Advocate(s) :
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  "1978 AIR (SC) 1239"  ==   "1978 HLR 729"  ==   "1981 (129) ITR 440"  ==   "1978 (3) SCC 383"  ==   "1978 (3) SCR 761"  ==   "1978 UJ 381"  ==   "1978 (4) ALR 522"  







        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 Khandappas lifetime between himself and his two sons the plaintiff would have got a 1/4th share in the joint family properties the other three getting a 1/4th share each. Khandappas 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 7/24ths share in the joint family properties. That in short is the plaintiffs caseDefendants 2 to 5 admitted the plaintiffs claim the suit having been contested by defendant 1 Gurupad only. He contended that the suit properties did not belong to the joint family that they were Khandappas self-acquisitions and that on the date of Khandappas 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 had 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 1The trial court by its judgment dated July 13 1965 rejected defendant 1s case that the properties were Khandappas 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 v. Kalgonda Bhimgonda AIR 1964 Bom 263 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-objection. By judgment dated March 19 1975 a Division Bench of the High Court dismissed defendant 1s appeal and allowed the plaintiffs 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 7/24ths share. Defendant I has filed this appeal against the High Courts judgment by special leaveAnother Division Bench of the Bombay High Court in Rangubai v. Laxman Lalji Patil AIR 1966 Bom 169 had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai v. Kalgonda Bhimgonda AIR 1964 Bom 263. 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 was not fully argued and was incorrectly decided and that on a true view of the law the widows share must be ascertained by adding the share to which she is entitled at notional partition during her husbands lifetime and the share which she would get in her husbands 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 decidedSince 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 ActProvided 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 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 survivorshipExplanation 1.-For the purposes of this section the interest of 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 notExplanation 2.-Nothing contained in the proviso to this section shall be construed a 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. Kandappa 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 s. 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section Khandappas 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 1 of the Schedule to the Act and Khandappa died leaving behind widow and daughters the proviso to s. 6 comes into play and the normal rule is excluded. Khandappas 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 s. 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 dispositionThere is thus no dispute that the normal rule provided for by s. 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 Expln. of s. 6. The interpretation of that Explanation is the subject-matter of acute controversy between the partiesBefore 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 plaintiffs 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 husbands share and two her husbands 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 plaintiffs 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 ss.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 widow are mentioned as heirs in class 1 of the Schedule and therefore by reason of the provisions of s. 8(a) read with the 1st clause of s. 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 deceaseds property under s. 10 read with rr. 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 plaintiffs share therein will be 1/6thThe 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 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. One must therefore imagine a state of affairs in which a little prior to Khandappas 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 Mullas Hindu Low 14th Edn. 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 Khandappas 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 sonsTwo things are thus clear: One that in a partition of the coparcenary property Khandappa would have obtained a 1/4 th share and two that the share 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 plaintiffs 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 preferredWe see no justification for limiting the plaintiffs share to 1/24th by ignoring the 1/4th share which she would have obtained had there been partition during her husbands lifetime between him and his two sons. We think that in overlooking that 1/4th share one unwittingly permits ones imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiffs husband and his sons. Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Expln. 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 shareThe fiction created by Expln. 1 has to be given its due and full effect as the fiction created by s. 18A(9)(b) of the Indian I.T. Act 1922 was given by this court in CIT v. S. Teja Singh [1959] 35 ITR 408 ; AIR 1959 SC 352; (1959] Suppl. (1) SCR 394. It was held in that case that the fiction that the failure to send an estimate of tax on income under s. 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 s. 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 Singhs case a missing step had to be supplied which was not provided for by s. 18A(9)(b) namely the issuance of a notice under s. 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 s. 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 s. 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 s. 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by s. 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 (1952] AC 109 at p. 132. He said If you are bidden to treat an imaginary state of affairs as real you must also imagine as real the consequences and 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 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 claimants 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 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 ones 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 lifetime 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 partitionThe interpretation which we are placing upon the provisions of s. 6 its proviso and Expln. 1 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 sons daughter daughters daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Womens Right 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 Act 1956 provides by s. 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 Expln. 1 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 women to acquire an equal status with males in matters of property. Even assuming that two interpretations 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 yearsWe 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.