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

ACT:
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.
-2015 S.C.(1978)MSKLAWREPORTS

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