9911796707
TMI Blog1974 (8) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... arayanrao adopted a son by name Shridhar, Shridhar died on December 29, 1956, leaving him surviving his adoptive father Narayan, adoptive mother Laxmibai and his widow Shantabai, Laxmibai died on March 11, 1965, making a will whereby he disposed of his interest in the family property in favour of Samarth Charitable Society, a Society registered under the Societies Registration Act. 3. The trial Court partially decreed the suit giving the plaintiff 1/8th share in the estate belonging to the family. This quantum of share was determined on the footing that Shridhar the adopted son had 1/2 share in the family property and the adoptive father Narayanrao had the remaining half share therein. On Shridhar's death his interest in the family property was divided equally between his widow Shantabai and his adoptive mother Laxmibai. Thus, according to the trial Court, upon Shridhar's death, Shantabai became entitled to 1/4th share in the family property i.e., half share in Shridhar's property and Laxmibai became equally entitled to 1/4th share in the family property. On Laxmibai's death in the year 1957 her interest in the family property was divided equally between the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll Bench. On interpretation by Section 6 of the Act there is a possibility of difference of opinion on the question whether upon partition of the share of the deceased coparcener the remaining coparceners continue to be joint or become separate. So far as that question is concerned, it will be relevant to decide only when the coparcenary consists of more than two members and one of the members of the coparcenary dies. We do not propose to decide that larger question as k in this case the coparcenary consists of only tow male members, namely Narayanrao the adoptive father and his adopted son Shridhar and we propose to confine ourselves only to the facts of the present case and do not express any opinion on the larger question that may possibly arise upon the interpretation of Section 6 of the Act. 6. Mr. Bobde on behalf or the plaintiff contended that when one of the coparceners dies, his share in the coparcenary property goes by survivorship to the remaining surviving coparceners under the Hindu Law. that when coparcenary subsists and no partition is claimed, no coparcener can predicate that he has definite share in the coparcenary property and that when the coparceners have sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is k father Narayanrao. Only the interest of Shridhar in the coparcenary property l goes by testamentary or intestate succession. In view of the fact that he dies without leaving a will, his interest in the coparcenary property, which would have been allotted to him as if on a partition immediately before his death, has to be determined but there is nothing in the statute to show that a partition or severance in status came into effect upon or prior to the death of Shridhar. 7. The Act was enacted with a view to amend and codify the law relating to intestate succession among Hindus. It came into force on June 17, 1956, Section 6 if the Act provides for devolution of interest in coparcenary property and its provisions are as under:- 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 deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in the class who claims thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased coparcener there is severance of status in the coparcenary property. On the other hand, the argument of Mr. palshikar is that this is only a departure qua the rule of devolution of interest. Ordinarily upon the death of a coparcener his interest in the joint family property will go by survivorship to the remaining coparceners, while in the persent case as there was a female heir, the rule of survivorship was not attracted but the property was to devolve by test mentally or intestate succession. Such is the rule of succession but it has no effect of effecting severance in the joint family status. 9. Ordinarily under Shastic Hindu Law the interest of a coparcener in the Mitakshara coparcenary is undivided . The ownership of the coparacentary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshare law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property that he as a member has a definite share e.g., one-third or one-rough. His interest is as fluctuating interest, capable of being enlarged by death of any coparcner in the family. Thus, it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit you imagination to boggle when it comes to the inevitable corollaries of that state of affairs . If the legal fiction contained in Explanation 1 is to be extended as laid down in l this principle, then it is possible to urge that upon a copartner dying leaving a female heir or other heirs as specified under proviso to Section 6 not only the share of the deceased coparcener is separated a moment before his death but, there is also a partition amongst the surviving coparceners as in a partition under Hindu Law. The other view as regards legal fiction is that the legal fiction cannot be stretched off beyond the purpose for which it was enacted. This view is based upon the decision of the Supreme Court in State of Travenocre-Cochin v. j Shanmugha Vilas Cashew Nut Factory . For the purpose of the present case we do not propose to decide whether the legal fiction created by Explanation 1 has to be given full effect as stated in the earlier view and we are prepared to proceed on the assumption that it should not be stretched beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar left him surviving his adoptive mother Laxmibai and his widow Shantabai, the quantum of the share which will devolve by intestate succession under the proviso to Section 6 has to be determined as provided in Explanation 1. This Explanation lays down that Shridhar shall be deemed to be entitled to a share in the family property that would have been allotted to him if a partition of the property had taken place immediately before his death. It is not disputed that if a partition has taken place immediately before the death of Shridhar, he would have been entitled to 1/3rd share in the property,. The question, however, arises whether the remaining 2/3rd share is to remain with Narayanrao or is to be divided between Narayanrao and his wife Laxmibai equally. Under Shastric Hindu Law a wife cannot demand a partition but if a partition does take place between husband and his son, she is entitled to receive a share equal to that of his son and the hold and enjoy that share separately even from her husband. The question that arises in this case is whether this right to claim a share equal to that of a son upon a notional partition as contemplated by Explanation 1 is taken away or is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to 1/6th share in the family property as the heir of Shridhar. 13. That such is the correct position in law is recognised by a number of judicial decisions which gave effect to the right of a female person under Hindu Law. In Parappa Ningappa v. Mallappa 58 Bom LR 404 = (AIR Bom 332) (FB) the Full Bench of this Court has taken the view that under Hindu law, in a suit by as on for partition and separate possession of his share after setting aside the alienation k of joint family property made by his father, the mother, who is a party is entitled to a share, if the Court comes to the conclusion that the alientation is nt for a purpose binding upon the family consisting of the father, mother and sons. Two approaches were presented to the Full bench and the question arose which of the two approaches should be accepted in case of a widow. The one approach is the approach that an alienation however unauthorised, is valid until it is challenged, that the right to challenge is restricted to the copartners and it is only those who can challenge the alienation who can claim their shares in the joint family property as not haivng been affected by the alienation, the rest of the joint fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on's share. The right the mother has is a right to participate in the property left by her husband, and it has been described as a latent an inchoate right of participation which becomes effective when separation takes place. Such being the right of the mother, and the son's obligation towards her in respect of the assignment of a specific share of the property on partition we have to see what position the purchaser in execution of the right, title and interest of a member of an undivided family takes . It was held that the auction purchaser was not entitled to the share which would have been allotted to a Hindu widow if a partition had taken place. 15. A similar view was taken by Ameer Lal Mitter, v. Manick Lal Mullick, (1900) ILR 27 Cal 551. A Hindu mother is entitled under the law to be maintained out of the joint family property, and if anything is done affecting that right, as for instance by the sale of any particular share by any of her sons, her right comes into existence. A purchaser from one of the sons has the same right and takes it subject to the same liabilities as those of the person from whom he purchased. Even in this case the right of a Hindu mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the proviso, the share or interest of a deceased coparcener in the coparcenarny becomes severed as it is to go or devolve by testamentary or instate succession. How that share is to be computed is to be determined in the manner provided by Explanation 1. The Explanation 1 presupposes the legal fiction that immediately before his death the partition has taken place in the family and his interest in the joint family property has been ascertained and such share will thereafter go by testamentary k or intestate succession as provided in the Act. Such being a scheme of the Act, if severance takens place upon the death of a coparcener leaving such female heirs or other heirs specified in the proviso, to ascertain his interest, the construction shoudl not be put upon the language of the section so as to curtail the rights which a Hindu female may have under Shastric Hindu law. We are merely affirming the right which the mother has when partition takes place between father and son. Such right is conferred upon her by pure Hindu law and as the notional partition takes place upon the death of Shridhar a moment prior to his death. Laxmibai has to be given 1/3rd share as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t enjoin actual partition and does not enable the mother to reduce her share into possession. The explanation according to the Division bench, is intended to be of general application and cannot be treated as saving the above said rule of partition. In the opinion of the Division Bench to uphold the contention would produce most unjust results which could never have been intended by the Legislature. 19. The correctness of the decisions of the Division Bench in Shirambai Patil's case was doubted by Chandrachud, J, when the appeal in the case of Rangubai Lalji Patil v. Laxman Lalji patil came up of rearing and he referred that appeal for decision by the Division Bench. As a result of the reference by Chandrachud, J., the matter came up for hearing before the Division bench consisting of Patel and Bal, JJ. and the decision of the Division Bench is reported in Rangubaj Lalji Patil v. laxman Lalji Patil, , Patel, J., who delivered the judgment in the earlier case in Shiramabai's case was a party to this decision and he declined to follow that decision and took a contrary view on the ground that in Shiramabai's case the matter was not fully argued and the Division Bench wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them their ordinary meaning. The explanation enacts, in effect, that there shall be deemed to have been a partition before his death and such property as would have come to his share would be divisible amongst his heirs. it introduces legal fiction of a partition before his death, since without such fictional partition his share cannot be possibly determined . The Division bench thereafter considered the provisions of Section 7 of the Act and further observed. it would, therefore, appear from the scheme of Sections 6 and 7 that the Legislature intended that it shall be deemed that there was a partition in fact and substance and that such property as would be available to the deceased would be divisible among his heirs. Undoubtedly the latter part of the decision points out that the legal fiction of partition and separation of the share of the deceased co parcener at his death must be carried to its logical conclusion. On this aspect of the matter we do not propose to express any opinion and we have proceeded on the assumption that the object of the fiction was to quantify the share of the deceased coparcener and the point of time at which such quantification has to be made. Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members. Then of learned Judge considered thelanguage of the proviso read with Explanation 1 thereto and further observed that if the deceased had left behind him any female relative specified in that class in Class I of the Schedule or a male relative specified who claims through such female relative, the interest of the deceased in the Mitakshara coparcednary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. This is provided by the proviso. How the interest of the deceased in the Mitakshara coparcenary property shall be determined for the purpose of devolution, whether k testamentary or intestate contemplated by the proviso, is provided in Explanation 1. While discussing this case a further question arose before the learned Judge whether having regard to the provisions of Section 6 a full partition of the family property takes place or it is a piecemeal partition with respect to the interest of the deceased and what is the effect in either case on the entire family property or the interest an drights and liabilities inter se between the other coparceners in the family. The question, however, was not decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon her. 22. A similar view has been taken by a Single Judge of Gujarat High Court in Vidyaben v. Jagdishchandra Nandshankar Bhatt, . The learned Singel Judge who decided that case followed the decision of the Division Bench of this Court in Rangubai's case and that of the Orissa High Court above referred to. In the case before the Gujarat High Court the deceased coparcener was survived by wife, son and four daughters. Upon the death of the coparcener the property would be divided in three parts, 1/3rd going to the widow in her own right as she would have been entitled to a share equal to that of a son and husband had partition taken place immediately before the death of her husband; the son would get 1/3rd share and the remaining 1/3rd share i.e., the interest of the deceased in the property would be equally divided among all the six heirs. This was a case where there were only two coparceners as in the case of Rangubai where upon separation of the share of the deceased coparcener having regard to the provision of the proviso to Section 6 the wife was allotted a share on such partition having regard to the provision of pure Hindu Law. 23. Our attention has been invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atkumar, a single Judge of Madhya Pradesh High Court had an occasion to consider the scheme of Section 6 of the Act. He has taken the view that the provisions contained in Section 6 merely incorporate the concept of a notional partition for the limited purpose of enabling succession and computation of the interest of the deceased coparcener which otherwise would have devolved by survivorship and also for the as curtailment of the share in that interest of the heirs specified in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener, the other incidents of the coparcenary are left undistrubed and the joint family continues without disruption. It is not correct to think that in a case where the proviso to Section 6 comes into play, the statues of the joint family is disrupted on the death of a copartner. The purpose of the legal fiction introduced by these provisions is limited. The observations in this case are obiter and for the purpose of deciding the issue before the learned Judge it was not necessary to consider this question. That was a case in which a decree passed against the father during his lifetime in a suit in respect of pre-parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him if there was a partition immediately before he died irrespective of the fact whether he could claim such partition or not n that day. The need for the legal fiction arose out of impelling necessity for according to Mitakshara Law so longs there is no partition no coparcener can predicate that he has got a definite share in the coparcenary property. The legal fiction was designed for a limited purpose, namely for computation of the interest of the deceased copartner for purposes of devolution of the same on his heirs so that the repay be no difficulty in giving effect to the proviso. In the opinion of the Full Bench, Section 6 of the Act has nothing to do with the disruption of the joint family status. The coparcenary will continue notwithstanding the death of a coparcener until partition is effected. Till then the Karta of the joint family will be in charge of the management of the coparacernary property and will be entitled to exercise all powers which he enjoys by virtue of his position. The effect of Section 6 in the coparcenary, if at all is that in case the proviso applied to the devolution of the interest of the deceased that interest or specified share will be taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty, of property partitioned, notionally though, appears to be incomprehensible. So, old karta theory cannot help matters forward for the petitioner before me and Narayan Prasad Ruja as karta cannot represent his deceased son's mother and necessarily his wife upon whom devolves the share of the property after partition. The very nexus of the joint family property is gone . (underlining is ours.) Though there are no distinct observations on the question whether the remaining coparceners continued to be separate or joint, a prima facie observation is made that the nexus of the joint family property is gone. However, on the facts, as the mother of the deceased minor was necessary party continuance of the suit was regarded as suffering from infirmity. In karuppa Gounder v. Palaniammal. , the Division bench of madras High Court considered the effect of the proviso and Explanation 1 to Section 6. According to the Division bench, the intendement of this provision is very clear. It is that persons entitled to succeed to the interest of a deceased coparcener under the Act shall not be subject to the hazard of the fluctuating fortunes of the family. The Act itself dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare on a partition and if thereafter a female person entitled the to such share died, having regard to the provisions of Section 14 of the Act such interest was regarded as the property of the deceased Hindu female. 28. The last case to which out attention was drawn was the decision of Mysore High Court in Commr, of Income tax Mysore v,. Smt. Nagarathanamma, (1970) 76 ITR 352 (Mys). The Division Bench has taken the view that on the death of the karta of a Hindu undivided family after the coming into force of the Hindu Succession Act, 1956, his share in the income that accrued form firms in which he had been a partner as karta, devolves by succession on his own heirs, and is not assessable as income of the Hindu undivided family. For the purpose of computation or determination of the share of the male Hindu Explanation 1 to Section 6 of the Hindu Succession Act assumes that a notional partition in the family had taken place immediately before his death. The joint family, notwithstanding the death of one of its male members continues for the purpose of income-tax, but the share of that joint family is diminished to the extent of the share of the member dying. This was also a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remaining half will go to her daughter Sushilabai, the plaintiff. Thus, in our view, having regard to the facts and circumstances of the present case Shushilabai, the plaintiff is entitled to 1/4th share in the property and she is entitled to have a partition and separate possession thereof secured to her. 30. Question No. 1 referred to us is divided in two parts. The first part of question No. 1 relates to the scope of the fiction in the Explanation of Section 6 of the Act and the question requires us to answer whether the scope of the fictions as wide as was held in Rangubhai v. Laxman, . As we have pointed out in our judgment, it is not necessary for the purpose of this case to express any opinion on this part of the legal fiction. The whole of our judgments based upon assumption that the fiction should be carried to a narrow extent only with a view to implement the purpose for which it was introduced. Proceeding on that footing having regard to the facts of this case as there were only two copartners and one of them died, then if any person other than the coparceners is entitled to a share as a result of severance of the share of the deceased coparcener, the share of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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