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TMI Blog1965 (8) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in view the Explanation to S. 6 of the Hindu Succession Act, 1956, only one - third share in the coparcenary property would-be available for distribution - in this case between the plaintiff and the defendants - and if this is the correct interpretation of the section. In Shirmabai Bhimgonda Patil's case AIR1964Bom263 the Division Bench or which I was a member decided that , in view of S. 4 of this act, the wife right to the claim and a share at the notional partition was abrogated as it was merely in lieu of maintenance's and therefore the whole of the share offer husband which was equal to that the to son, that the one-half, was available for partition between the next heirs. If that the judgment is rights the plaintiff would-be entitled to one-fourth share in the suit property. (4) The third view now propounded on behalf of the widow in the present case is that the she is entitled to one = third share of the at notional partition and one- half of the one - third share on succession to her husbands share, which together becomes one - half of the whole property. (5)The question is by no means an easy one to answer. The Hindu Succession Act, 1956, was brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to any shall case which provision is made in this act. b) any others, law in force immediately before the commencement of this act shall case to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (7) In order to consider how far this contention can be valid, one has to consider the nature of the wife's or mother's right to a share at a partition between her husband and her sensor her sons. (8) we must now therefore consider the nature of the right. The question arose before this High Court in an indirect form in Lakshman Ramchandra v.satybhamabai ILR [1877] 2 Bom 494, The matter arose in a suit brought a sole surviving members of the husband family and bona fide purchases for value from him of some immovable an trail property of the family West J. Made a careful analysis to the Hindu Law relating to the rights of a wife to demand a share at a partition between her husband and sons and of ambition at a partition between her sons he says [p 503]. Through her marriage a Hindu Woman according to Jimuta Vahana, acquires an interest in her husbands property though only according to some writers of a second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the father are pronounced equal shares The sons therefore who is partition fail at allot the proper share if to their mother can be compelled to do it afterwards, 2 West and Buhler 31 Q. 3. In Bengal it has been held that the mother is a necessary party to a suit brought by a son for a partition Lajeet Singh v. Rajcoomar Sing. [1874]12 Ben LR 373 . If the mother is a necessary party to a suit for partition, it is hard to conceive of her as not having as interest in the property the as distinguished from a mere claim against the persons of her sons for a sufficient allotment. (9) Referring to the ratio of the decision in Deen Dayal Lal v. Jud Deep Narain Singh [1876] 4 Ind App. 247 he says [p. 507] This is to be referred to the wives right in her husbands property acquired by her marriage. It would, therefore, seem to the suggested that though she has no right to demand a partition as such her right is not a right available against the husband and sons personally but is a right in the property of the coparcenary. (10) Mr. Rane referred us to a good many decisions where it has been share observed that the rights to a wife or a mothers to share a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the structure of the Hindu law of inheritances and succession the act confers upon Hindu females full rights of inheritances and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. It is true that under the Sastric Hindu Law, the share given to Hindu widow on partition between her sons other grandsons was in lieu of her rights to maintenances. She was not entitled to claim partition. But the legislature by enacting the Hindu Women's Rights to property Act 1937, made a significant departure of the branch of the law the act gave a Hindu Widow the same interest in the property which her husband had at time of his death and if the ester was partitioned she become owner in separately other share, subject on the peculiar rule of extinction of the estate of the death autal our civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu succession Act ,the Legislature merely intended to declare the rule enunciated by the privy to declare the rule enunciated by the privy council Pratapmull s case His Lordship considered the combined effect of section 4 and 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a provision having been made in the in this Act as required by section 4(a) then the principles old Hindu Law cannot be said to be arrogated. Section 4(b) of evidently cannot apply. (14) Section 6 recognises the Hindu Law of survivorship but the proviso create and exception and provides for devaluation of the interest of the deceased coparcener it the died intestate and left any and the female her is specified in clauses 1 or male relative specified therein the claiming through such female relative probably ,if the Explanation such has not been there there would not have been any difficulty incepting the interpretation suggested in Dinshaw mulla principles of Hindu Law and by others text writers. The difficulty has been created reason of such Hindu Mitakshara coparcener. According to the Explanation to the interest is. 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 this death . The question is what was intended by the legislation when in enacted this Explanation .The intention of the legation is to be found form the words used giving them their ordinary meaning. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the portative state of the affairs had in fact, existed must inevitable have flowed from or emancipation from the 1939 level of rents. The statute says that your must imagine of a certain state of the affairs it does not say that having done so your must causes or permit your imagination to the boggle when it comes to the inevitable corollaries of that state of affairs:. Unless therefore there is any things contained in the Explanation of section 6 or section7, the legal fiction of the of partition and separation of the share be carried to its logical conclusion. The shares become fixed as if partition had taken place during his lifetime of and the decision of the case of AIR1962SC1493, becomes applicable. If any person to is entitled to a share on such partition or to maintenances and if he of she insist upon it, then the court cannot refuse to give effects of to such shares of rights to the maintenances and marriages expenses . It is true on doubt the neither of the section 6 nr In the section 7 is there a provision of for awarding such a share. However it appears to us that it is not necessary of the expressly state so and the legal fiction of the Explanation of implies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to the language of the statute of the mother is denied tie her legitimate share in the coparceners property on partition would is deemed have taken place of time of her husband death It may also be restricting the implication of the words used in the section of the hold that the respect of the maintenances and marriage expenses of daughters and others on such arrangements should be made of the should be left again the mercy of their brothers we have been referred to the articles of the Dr. J. Duncan M.Derrettin 6 Bom LR Jour section p. 169 and B. Shriamayya of the 67 Bom LR journal section p. 65. In the first article the author has advocated the views of which have been expressed by the Editor of sir Dinshaw Mulla's principles of Hindu law. The second articles supports the decisions Shirmabai Bhimagonda Patils case AIR1964Bom263 It is true that in view of what we have stated above, the decision if Shirmabai's case, AIR1964Bom263 cannot be accepted. On the other hand it is also extremely difficult to accept the apparent also extremely difficult section expressed in Sir Dinshaw view of Mulla's Hindu Law. (18) Out conclusion, therefore is that the when the int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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