By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property.


[Case Brief] GURUPAD KHANDAPPA MAGDUM Vs. HIRABAI KHANDAPPA MAGDUM AND ORS.


Case Name: GURUPAD KHANDAPPA MAGDUM Vs. HIRABAI KHANDAPPA MAGDUM AND ORS.

Case Number: 1978 SCC (3) 383

Court: The Hon’ble Supreme Court

Bench: CHANDRACHUD, Y.V. ((CJ), SHINGAL, P.N. TULZAPURKAR, V.D

Decided on: 27/04/1978

Relevant Act/Sections: 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.


BRIEF FACTS AND PROCEDURAL HISTORY:

1. Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai who is the plaintiff, two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5.

2. On November 6 , 1962 Hirabai filed special civil suit No. 26 of 1963 in the court of the Joint Civil Judge, Senior Division, Sangli for partition and separate possession of a 7/24th share in two houses, a land, two shops avoid movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons.

3. If a partition were to take place during Khandappa’s lifetime between himself and his two sons, the plaintiff would have got 1/4th share in the joint family properties, the other three getting 1/4th share each.

4. Khandappa’s 1/4th share would devolve upon his death on six sharers, the plaintiff and her five children, each having a 1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share in the joint family properties.

5. Gurupad alleged that Khandappa had effected a partition of the suit properties between himself and his two sons in December 1952 and December 1954 and that, by a family arrangement dated March 31, 1955 he bad given directions for disposal of the share which was reserved by him-for himself in the earlier partitions.

6. The trial court by its judgment dated July 13, 1965 rejected defendant 1’s case that the properties were Khandappa’s self-acquisitions and that he had partitioned them during his lifetime but, following the judgment of the Bombay High Court in Shiramabai Bhimgonda v. Kalgonda the learned trial judge limited that share to 1/24th, refusing to add 1/4th and 1/24th together.

7. As against that decree, defendant 1 filed first appeal. By a judgment dated March 19, 1975 a Division Bench of the High Court dismissed defendant 1’s appeal and allowed the plaintiff’s cross-objections by holding that the suit properties belonged to the joint family, that there was no prior partition and that the plaintiff is entitled to a 7/24th share.

8. The court opined that 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.

9. It later added that in overlooking that 1/4th share, one unwittingly permits one’s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff’s husband and his sons.

10. The court observed that Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, 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.

11. The court observed that 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.

12. It later added that 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 bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased.


ISSUE BEFORE THE COURT:

1. Whether the plaintiff’s share in the coparcenary property is only 1/24th, or whether it is 1/4th plus 1/24th, that is to say, 7/24th.

2. Whether a partition had actually taken place between the plaintiff’s husband and his sons is beside the point for the purposes of Explanation 1.


RATIO OF THE COURT:

1. The court observed that the plaintiff’s share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in sections 8, 9 and 10 of the Hindu Succession Act.

2. The court observed that Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mistakshara 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.

3. The court observed that the deceased Khandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and a 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 sons, 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.

4. The court opined that 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.

5. It later added that in overlooking that 1/4th share, one unwittingly permits one’s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff’s husband and his sons.

6. The court observed that Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, 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.

7. The court observed that whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff’s share therein will be 1/6th.

8. The court observed that 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.

9. It later added that 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 bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased.

10. The court observed that the Hindu Succession 769 Act, 1956 provides by section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner.


DECISION HELD BY COURT:

1. The court held that the Full Bench of the Bombay High Court in Sushilabai (supra) has considered exhaustively the various decisions bearing on the point and endorsed the analysis contained in the judgment of Kantawala C. J., who has spoken for the Bench. For these reasons the court confirmed the judgment of the High Court and dismissed the appeal with costs.

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