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