Case Summary
| Citation | Gurupad KhandappaMagdumv.HirabaiKhandappaMagdum(1978) 3 SCC 383 : AIR 1978 SC 1239 |
| Keywords | sec 6,8 HSA, |
| Facts | The joint family consisted of the father, his wife, two sons and three daughters. The father died in 1960 as an undivided member of Mitakshara coparcenary and three years later his wife (Hirabai) filed a suit for a partition and separate possession of her seven-twenty fourth share in the property. She claimed a one-fourth share at the time of partition and a one-twenty fourth share by inheritance. On the other hand, the sons contended that the mother was not entitled to get a share at the time of effecting the notional partition and therefore all that she should get is a one-twenty fourth share. |
| Issues | In terms of Sections 6 and 8 of the Succession Act, what portion would a Hindu widow receive? |
| Contentions | The plaintiff’s contention was that if a partition had taken place between Khandappa and his two sons during Khandappa’s lifetime, the plaintiff would have received a 1/4th share each upon Khandappa’s death. She also claimed that Khandappa’s 1/4th share could devolve upon his death to six sharers, entitling her to a 1/24th share. |
| Law Points | The honourable judge, YV Chandrachud, adopted the wider approach and observed that s. 6 contains a formula for determining the share of the deceased, creating a fiction of a notional partition. He said that one must therefore imagine a state of affairs in which a little prior to the (father’s) death, a partition of the coparcenary property was effected between him and the other members of the family, and the wife, though not entitled to demand a partition, was nevertheless entitled to get a share if the partition took place between her husband and her sons. So in the first partition, she will get one-fourth of the property in her own right and out of the one-fourth share of the husband, she will get a one-twenty fourth share by inheritance, a total of a seven-twenty fourth share. In relation to the interpretation of s. 6, the court said that what is required to be assumed is that a partition had in fact taken place between the deceased and the coparceners immediately before his death. Thus, the heir will get her share at the time of the notional partition and will also take a share at the time of inheritance, if entitled. The court noted that all the reforms that had taken place earlier were with a view to improving the property rights of women and a narrow approach would mean taking a retrograde step. It would put back the clock of social reform that enabled Hindu women to acquire an equal status with men. |
| Judgement | This Court held that the deemed partition could not be limited to the periodimmediately preceding the death of the deceased coparcenary, but that“all the consequences that flow from a real partition must be logically worked out,” so the heirs’ share must be determined because they hadseparated from one another and received a share in the partition thatoccurred during the deceased’s lifetime. ● The court said that the divide had to be recognized and acknowledged asa solid fact that could not be reversed afterward. |
| Ratio Decidendi & Case Authority |
Full Case Details
Y.V. CHANDRACHUD, C.J. – It will be easier, with the help of the following pedigree, to
understand the point involved in this appeal:
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 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 properties, the other three getting a 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 plaintiff’s case.
2A. Defendants 2 to 5 admitted the plaintiff’s 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 Khandappa’s self-acquisitions and that, on the date of Khandappa’s 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 1.
3. 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 ShiramabaiBhimgondav.
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Kalgonda [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-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 1 has
filed this appeal against the High Court’s judgment by special leave.
4. Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Laljim
[AIR 1966 Bom 169], had already reconsidered and dissented from the earlier Division Bench
judgment in ShiramabaiBhimgonda. 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
Shiramabaiwas not fully argued and was incorrectly decided and that on a true view of law, the
widow’sshare must be ascertained by adding the share to which she is entitled at a 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 Lalji endorsing indirectly the view that Shiramabai was incorrectly
decided.
5. 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).
6. The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after
the commencement of that Act, June 27,1960, 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 survivorship. Testamentary succession 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 HinduinMitakshara coparcenary property is capable of being disposed of by a will or other
testamentary disposition.
7. 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
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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.
8. 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 Mitakshara
coparcenary property at 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 co-related 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 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.
9. 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 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 Khandappa’s death, a partition of the coparcenary property was
effectedbetweenhim 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 403rat 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 1/4lh share in the
coparcenary property on the hypothesis of a partition between himself and his sons.
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10. Two things are thus clear: One, that in a partition of the coparcenary property Khandappa
would have obtained a 1/4th share and 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 1/24lh, that is to say, 7/24th. The learned trial Judges relying upon the
decision in Shiramabai (supra) 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.
11. 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 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
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.
12. The fiction created by Explanation 1 has to be given its due and full effect as the fiction
created by Section 18A(9)(6) of the Indian Income-Tax Act, 1922, was given by this Court in
Commissioner of Income-Tax, Delhi v. S. Teja Singh [AIR 1959 SC 352]. 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 case, a missing step had to be supplied which was not provided for by Section
18A(9)(6), namely, the issuance of a notice under Section 22 and the failure to comply with that
notice. Section 18A(9)(6) 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 tohave 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 had to be made for the purpose of giving due and full effect to
the fiction created by Section 18A(9)(6). 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 [(1951) 2 All ER 587]. 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
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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.
13. 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 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 cannotgenerally 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.
14. The interpretation which we are placing upon the provisions of Section 6, its proviso and
Explanation 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 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 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,
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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.
15. 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 in which Patel, J., very fairly,
pronounced his own earlier judgment to the contrary in ShiramabaiBhimgonda v. Kalgonda as
incorrect. Recently, a Full Bench of that High Court in Sushilabai Ramachandra Kulkarni v.
NarayanraoGopalrao Deshpande [AIR 1975 Bom 2570], the Gujarat High Court in Vidyaben v.
Jagdischandra N. Bhatt [AIR 1974 Guj 23] and the High Court of Orissa in Ananda v.
Haribandhuhave taken the same view. The Full Bench of the Bombay High Court in
Sushilabaihas 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.
