application of Section 6 of the Hindu Succession Act & notional partition ,how to be effected - 2015 S.C.(1978)MSKLAWREPORTS
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.- 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.
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. 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.
(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. 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. (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 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. (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.