Saturday, September 26, 2009

Anar Devi and Ors Versus Parmeshwari Devi and Ors

Subject
Hindu Succession Act, 1956: S.6, Explanation 1-Devolution of interest in coparcenary property-Father and his adopted son constituting Mitakshara coparcenary-Father having two daughters also-On the death of father, daughters claiming 2/3 share in property-Held, in view of s.6 and Explanation 1 thereto, notional partition of the suit properties between father and his adopted son has to be assumed immediately before the death of the father and that being so his undivided interest in suit property, which was half, devolved on his death upon his three children, i.e. the adopted son and the two daughters in equal proportion-Adopted son would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession-Thus, each of the two daughters was entitled to one-sixth share in the property and the remaining properties would go to the adopted son-Hindu Law-Mitakshara coparcenary-Devolution of interest-Interpretation of statutes-Statutory fiction-Interpretation of.

State of Bombay v. Pandurang Vinayak Chaphalkar & Ors., [1953] 4 SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR (1978) SC 1239, relied on.

East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) Appeal Cases 109, referred to.

Mulla, Principles on Hindu Law, referred to.

Citation: 2006 AIR 3332, 2006(6   )Suppl.SCR370 , 2006(8   )SCC656 , 2006(9   )SCALE509 , 2006(12  )JT288
Judgement

CASE NO.:
Appeal (civil)  4171 of 2006

PETITIONER:
Anar Devi and Ors

RESPONDENT:
Parmeshwari Devi and Ors

DATE OF JUDGMENT: 18/09/2006

BENCH:
B.N. AGRAWAL & P.P. NAOLEKAR

JUDGMENT:
JUDGMENT
O R D E R

(ARISING OUT OF S.L.P. (C) NO. 15677 OF 2004)
WITH
CIVIL APPEAL NO. 4172 OF 2006
(ARISING OUT OF S.L.P. (C) NO. 19015 OF 2004)

C.A. No. 4171 of 2006 @ S.L.P. (C) No. 15677of 2004:
    Heard learned counsel for the parties.
    Leave granted.
    A suit was filed before the Sub-Divisional Officer by the respondents for
partition of suit properties claiming two-third share therein. In the plaint, it was
plaintiffs' clear-cut case that the partition suit was filed for partition of notional share of
Nagar Mal. Undisputedly, the suit properties were ancestral one in the hands of Nagar
Mal, who adopted one Nemi Chand as his son, and after adoption both of them
constituted a Mitakshara coparcenary under Hindu Law. Further it was undisputed
that Nagar Mal died  in the year 1989 intestate in the state of jointness with his
adopted son leaving behind him, his adopted son Nemi Chand and the plaintiffs, who
were his two daughters.
The trial court by misconstruing the provisions of law, passed an ex-parte 
decree for partition of one-third share of each one of the plaintiffs instead of one-sixth
share. Against the decree of trial Court, when the matter was taken in appeal, the
appellate authority reversed the same after recording a finding that the property was
ancestral one, but remitted the matter as the decree was passed ex-parte. Against the
order of remand, the matter was taken to the Board of Revenue, which reversed the
order of remand and restored the decree passed by trial Court after recording a
finding that each of the plaintiffs was entitled to one-third share in the suit properties.
The said judgment has been confirmed in  writ by a learned single Judge of the High
Court and the same has been upheld in appeal by the Division Bench. Hence, this
appeal by special leave.
In order to appreciate the point involved in the present case it would be useful
to refer to the provisions of Section 6 of the Hindu Succession Act, 1956 (in short "the
Act"), as it stood prior to its amendment by Hindu Succession (Amendment) Act,
2005, and the same run thus:
"S. 6 - Devolution of interest in coparcenary property  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 surviving him a
female relative specified in Class I of the Schedule or a male
relative, specified in that class who claims, through such female
relative, the interest of the deceased in Mitakshara coparcenary
property shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not by survivorship.

Explanation 1.  For the purposes of this section, 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, irrespective of whether he was entitled to claim partition or
not.

Explanation 2.  Nothing contained in the proviso to this
section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in the
interest referred to therein."

Reference in this connection may be made to a passage from the most
authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page
250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author
stated that "Explanation I defines the expression 'the interest of the deceased in
Mitakshara coparcenary property' and incorporates into the subject the concept of a
notional partition. It is essential to note that this notional partition is for the purpose of
enabling succession to and computation of an interest, which was otherwise liable to
devolve by survivorship and for the ascertainment of the shares in that interest of the
relatives mentioned 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
undisturbed and the coparcenary can continue without disruption. A statutory fiction
which treats an imaginary state of affairs as real requires that the consequences and
incidents of the putative state of affairs must flow from or accompany it as if the
putative state of affairs had in fact existed and effect must be given to the inevitable
corollaries of that state of affairs."
The learned author further stated that "the operation of the notional partition
and its inevitable corollaries and incidents is to be only for the purposes of this section
namely, devolution of interest of the deceased in coparcenary property and would not
bring about total disruption of the coparcenary as if there had in fact been a regular
partition and severance of status among all the surviving coparceners."
According to the learned author, at page 253, the undivided interest "of the
deceased coparcener for the purpose of giving effect to the rule laid down in the
proviso, as already pointed out, is to be ascertained on the footing of a notional
partition as of the date of his death. The determination of that share must depend on
the number of persons who would have been entitled to a share in the coparcenary
property if a partition had in fact taken place immediately before his death and such
person would have to be ascertained according to the law of joint family and partition.
The rules of Hindu law on the subject in force at the time of the death of the
coparcener must, therefore, govern the question of ascertainment of the persons who
would have been entitled to a share on the notional partition."
In the case of State of Bombay  vs. Pandurang Vinayak Chaphalkar &
Others; 1953 (4) SCR 773,  this Court,  after referring to, with  approval,  the oft-
quoted  dictum of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough
Council (1952) Appeal Cases 109, has laid down the manner in which statutory
fiction shall be construed and at pages 778 and 779 observed thus:-
    "When a statute enacts that something shall be deemed to have
been done, which in fact and truth was not done, the court is
entitled and bound to ascertain for what purposes and between
what persons the statutory fiction is to be resorted to and full effect
must be given to the statutory fiction and it should be carried to its
logical conclusion. [Vide Lord Justice James in Ex parte Walton : In
re Levy [17 Ch. D. 746, at p. 756]]. If the purpose of the statutory
fiction mentioned in section 15 is kept in view, then it follows that
the purpose of that fiction would be completely defeated if the
notification was construed in the literal manner in which it has been
construed by the High Court. In East End Dwellings Co. Ltd. v.
Finsbury Borough Council [[1952] A.C. 109], Lord Asquith while
dealing with the provisions of the Town and County Planning Act,
1947, made reference to the same principle and observed as
follows :-
"If you are bidden to treat an imaginary state of affairs
as real, you must surely, unless prohibited from doing
so, also imagine as real the consequences and
incidents which, if the putative state of affairs had in
fact existed, must inevitably have flowed from or
accompanied it. ....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 your
imagination to boggle when it comes to the inevitable
corollaries of that state of affairs."
The corollary thus of declaring the provisions of section 25 of the
Bombay General Clauses Act applicable to the repeal of the
ordinance and of deeming that ordinance an enactment is that
wherever the word "ordinance" occurs in the notification, that word
has to be read as an enactment."

In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa
Magdum, AIR 1978 SC 1239 at page 1243 it has been laid down by this Court as
under:
"What is therefore required to be assumed is that a partition had in
fact taken place between the deceased 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 shares 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 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 lifetime of the deceased."

Thus we hold that according to Section 6 of the Act when a coparcener dies
leaving behind any female relative specified in Class I of the Schedule to the Act or
male relative specified in that class claiming through such female relative, his
undivided interest in the Mitakshara coparcenary property would not devolve upon the
surviving coparcener, by survivorship but upon his heirs by intestate succession.
Explanation 1 to Section 6 of the Act provides a mechanism under which undivided
interest of a deceased coparcener can be ascertained and, i.e., 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, irrespective of whether he was entitled to claim partition
or not. It means for the purposes of finding out undivided interest of a deceased
coparcener, a notional partition has to be assumed immediately before his death and
the same shall devolve upon his heirs by succession which would obviously include
the surviving coparcener who, apart from the devolution of the undivided interest of
the deceased upon him by succession, would also be entitled to claim his undivided
interest in the coparcenary property which he could have got in notional partition.
In the case on hand, notional partition  of the suit properties between Nagarmal
and his adopted son Nemi Chand has to be assumed immediately before the death of
Nagarmal and that being so Nagar Mal's undivided interest in the suit property, which
was half, devolved on his death upon his three children, i.e.,  the adopted son Nemi
Chand and the two daughters who are plaintiffs in equal proportion.  Nemi Chand, the
adopted son, would get half of the entire property which right he acquired  on the date
of adoption and  one third  of the remaining half which devolved upon him  by
succession as stated above. This being the position, each of the two plaintiffs was not
entitled to one-third share in the suit property, but one-sixth  and the remaining
properties would go to the adopted son, Nemi Chand.
    Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one
in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and
from the date of adoption, a coparcenary was constituted between the father and the
adopted son. Upon the death of Nagar Mal, the property being ancestral, the half 
undivided interest of Nagar Mal therein  devolved by rule of succession upon his three
heirs, including Nemi Chand. This being the position each of the daughters would be
entitled to one-sixth share in the suit properties and the remaining would go to the
heirs of Nemi Chand, since deceased.
    Accordingly, the appeal is allowed, impugned judgments are set aside and suit
for partition is decreed to the extent of one-sixth share of each of the two plaintiffs and 
the defendants, i.e., heirs of  Nemi Chand shall be entitled to the remaining suit
properties. Let a preliminary decree be, accordingly, drawn up and steps for
preparation of final decree be taken by appointment of a pleader commissioner.
No costs.
C.A. No. 4172 of 2006 @ S.L.P. (C) No. 19015 of 2004:
    Heard learned counsel for the parties.
    Leave granted.
    In view of the order in C.A. No. 4171 of 2006 above,  the appeal is allowed, the
impugned judgment is set aside and writ petition filed before the High Court is
dismissed.
    No costs.

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