SUPREME COURT OF INDIA
Anar Devi and Others
Vs
Parmeshwari Devi and Others
Appeal (Civil) 4171 of 2006 (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)
(B. N. Agarwal and P. P. Naolekar, JJ)
18.09.2006
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;
this Court, after referring to, with approval, the oft- quoted dictum of
Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council 1951 Indlaw HL 3, 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 ChD 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 1951 Indlaw HL 3, 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, 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.