Patel, J.:— This second appeal has been referred to a Rivision Bench by Chandrachud J., as it raises the important question of interpretation of s. 6 of the Hindu Succession Act, 1956 and also as some doub was entertained by the learned Judge as to the correctness of a decision of the Division Bench in Shiramabai Bhimgonda Patil v. Kalgonda Bhimgonda Patil* . 1963 66 Bom. L.R 351. of which I was a member.
2. The facts are: The plaintiff is the widow of Lalji Patil. At his death, he left the plaintiff and the defendant, his adopted son. The widow filed the present suit, claiming a half share in the property. The tried Court granted one-sixth share to her and the learned Assistant Judge, with slight modification, confirmed this decree.
3. The editor of Sir Dinshaw Mulla's Principles of Hindu Law expresses the opinion that, in view of the Explanation to s. 6 of the Hindu Succession Act, 1956, only one-third share in the coparcenery property would be available for distribution—in this case between the plaintiff and the defendant—and if this is the correct interpretation of the section, the decree of the Courts below is right. In Shiramabai Bhimgonda's case, the Division Bench of which I was a member decided that, in view of s. 4 of this Act, the wife's right to claim a share at the notional partition was abrogated as it was merely in lieu of maintenance and therefore, the whole of the share of her husband which was equal to that of the son, that is, one-half, was available for artition between the next heirs. If that judgment is right, the plaintiff would be entitled to one-fourth share in the suit property. The third view now propounded on behalf of the widow in the present case is that she is entitled to one-third share at the notional partition and one-half of the one-third share on succession to her husband's share, which together becomes one-half share of the whole property.
4. The question is by no means an easy one to answer. The Hindu Succession Act, 1956, was brought on the statute book with the purpose of amending and codifying the law relating to intestate succession amongst Hindus. Section 6 of the Act recognises the principle of Hindu law that copar enery property goes by survivorship. The proviso of the section, however, qualifies the law of survivorship. Only Explanation I to the proviso is material to the present question. Section 6 is as follows:—
“When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act:
Provided that, if the deceased had left him surviving 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 the Mitakshara coparcenery 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 coparcenery before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”
5. Mr. Rane supports the view in Shiramabai's case. According to him the principle adopted in that case, namely that the share to which the wife or widow is entitled at partition is lost to her by reason of, if not s. 4 of the Hindu Succession Act, at any rate, s. 4 of the Hindu Adoptions and Maintenance Act, 1956, the sections being worded in similar terms. Both sections so far as relevant are as follows:
“4. (1) Save as otherwise expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.”
6. In order to consider how far this contention can be valid, one has to consider the nature of the wife's or mother's right to a share at a partition between her husband and her sons or her sons.
7. We must now, therefore, consider the nature of the right. The question arose before this High Court in an indirect form in Lakshman Ramchandra Joshi v. Satyabhamabai . 1877 I.L.R 2 Bom. 494.. The matter arose in a suit brought by Satyabhamabai against her husband's brother, a sole surviving member of the husband's family and a bona-fide purchaser for value from him of some immoveable ancestral property of the family. West J. made a careful analysis of the Hindu law relating to the right of a wife to demand a share at a partition between her husband and sons and of a mother at a partition between her sons. He says (p. 503):
“Through her marriage a Hindu woman, according to Jimuta Vahana, acquires an interest in her husband's property, though only, according to some writers, of a secondary kind, such as may be divested by a gift by the husband to a third party. A higher interest could certainly not be assigned to her consistently with that text of Manu (chap. VIII, pl. 416), which ranks her along with a son and a slave as incapable of having wealth exclusively her own, but this interest has been deemed enough to entitle her to an equal share with sons when her husband makes a partition of his property. The Vyavahara Mayukha deals even with the reunion of a wife with her husband, which implies a previous partition, in the sense probably of the allotment of a share in a division with the sons. Apastamba denies (Coleb. Dig., bk. V., ch. II, pl. 89) that such a partition can take place, because of the essential unity of the married pair,—a reason which could not apply after the husband's death. That event, however, while removing the superior and dominant interest of the husband, appears to have been recognized by, at least, some of the Smritis as bringing out the wife's right into greater definiteness. Manu (chap. V., pl. 148) and Narada (Pt. 1, ch. III, 36) alike insist on the dependence of women; yet Narada (Pt. I, ch. III, 39, 40) assigns to the widow, on her husband's death, general control of the estate in priority even to sons. Manu (Chap. IX, 104) says that a partition cannot be made during her life by the sons—cannot be made, it has been understood, without her assent—and H.H Wilson (Works, vol. 5, p. 28) makes the necessity of this consent a ground for her right of absolute disposal over the share allotted to her in the partition (2 Str. H.L 383). In this Presidency the sons' right to a partition, as it subsists against their father, subsists also against their mother; but the widow's right has not been regarded by the shastris as originating in the partition, though a separate effect is thus given to it (Mitak., ch. I, sec. VII, pl. I). In the case at 1 West and Buhler, 27 Q. 10 and in several other cases, as at 2 West and Buhler, 29, the widow has been pronounced entitled to a share equal to that of a single son, who, being such, could not make a partition in the sense to which the text of the Mitakshara directly applies. That this share is not a mere maintenance to be allowed in the discharge of a filial duty appears from the passage of Vyasa quoted in the Vyavahara Mayukha, chap. IV, sec. IV, pl. 19:— ‘Even childless wives of the father are pronounced equal sharers’. The sons, therefore, who in a partition fail to allot the proper share to their mother, can be compelled to do it afterwards: 2 West and Buhler, 31, Q. 3. In Bengal it has been held that the mother is a necessary party to a suit brought by a son for a partition: Lalijeet Singh v. Rajcoomar.”3
8. Then he proceeds to say (p. 504):
“If the mother is a necessary party to a suit for partition, it is hard to conceive of her as not having an interest in the property as distinguished from a mere claim against the persons of her sons for a sufficient allotment.”
9. Referring to the ratio of the decision in Deendyal Lal v. Jugdeep Narain Singh . 1877 L.R 4 I.A 247., he says (p. 507):
“…This is to be referred to the wife's right in her husband's property acquired by her marriage.”
10. It would, therefore, seem to be suggested that though she has no right to demand a partition as such, her right is not a right available against the husband and sons personally, but is a right in the property of the coparcenery.
11. Mr. Rane referred us to a good many decisions where it has been observed that the right of a wife or a mother to share at a partition between coparceners is in lieu of maintenance. These decisions are Srimati Hemangini Dasi v. Kedar Nath Kudu Chowdhry . 1889 L.R 16 I.A 115. and Raoji Bhikaji Kondkar…Defendant v. Anant Laxman Kondkar…Plaintiff . . 1918 20 Bom. L.R 671. the last being Pratapmull Agarwalla v. Dhanabati Bibi . 1935 L.R 63 I.A 33, S.C 38 Bom. L.R 323., where the Judicial Committee had occasion to consider the nature of the right. Their Lordships approved of the observations of Mitter J. in Sheo Dyal Tewaree v. Judoonath Tewaree . 1868 9 W.R 61, at p. 62., which are as follows:—
“…the mother, or the grandmother, is entitled to a share when sons, or grandsons, divide the family-estate between themselves; but (that) she cannot be recognised as the owner of such share until the division is actually made; she has no pre-existing right in the estate except a right of maintenance.”
12. This does not negative her right being in coparcenery property.
13. It would seem, however, that the Hindu Succession Act has made considerable impact on this decision, as can be seen from the decision in Munnalal v. Rajkumar . [1962] A.I.R S.C 1493.. The facts of this case are simple. One Garibdas left a son Gulzarilal who died in 1939 leaving behind him two sons, Munnalal and Ramchand and the widow of the predeceased son, Bhurilal. Saheblal, one of the sons of Munnalal, filed a suit for partition and separate possession of his one-twelfth share in the joint family property. As he had not brought all the parties on record, the Judge ordered that the absent parties should be brought on record, including his great-grandmother, Khilonabai. Ultimately, a preliminary decree for partition was made, decreeing one-twenty-fourth share to the plaintiff, five-twentyfourth to Munnalal, his wife and 3 sons, one-fourth to Ramchand and his sons, one-fourth to Khilonabai and one-fourth to Rajkumar adopted by Bhuribai. The defendants appealed against this decree to the High Court and during the pendency of the appeal Khilonabai died on July 3, 1956. Ramchand and Munnalal applied to be impleaded as her legal representatives in respect of the interest in the property awarded to her by the preliminary decree. The judgment of the Supreme Court was delivered by Mr. Justice Shah who after referring to the decision of the Judicial Committed in Pratapmull's case says (p. 1499):
“Pratapmulla's case, 63 Ind. App. 33 : (AIR 1936 PC 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, ??? that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment and has made far reaching changes in the structure of the Hindu law of inheritance and succession. The Act confers upon Hindu females full rights of inheritance and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate…. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull's case, 63 Ind. App. 33.”
14. His Lordship considered the combined effect of ss. 4 and 14 of the Act and held that the preliminary decree having declared the rights in favour of Khilonabai, she became entitled to the absolute rights in the property. The view taken in Munnalal's case, that the right of a wife or mother to a share on partition is not a mere personal right meant to” assure her of her maintenance but is a right in property, would find support from the decisions such as in Jairam v. Nathoo . 1906 8 Bom. L.R 632., and Hushensab v. Basappa . 1932 34 Bom. L.R 1325., where it is held that from the value of such share must be deducted the value of any Stridhan received by her as gift from her father-in-law or her husband. The rule is based on the understandable principle that if she is to have a share in the coparcenery property it is but just and fair that she must account for whatever she has received from the coparcenery property.
15. Similarly, the right of the daughters and others not entitled to a share on a partition of the coparcenery property for whom provision has to be made, is not mere personal right but a right in the coparcenery property (Rajagopala v. Venkataraman . [1947] A.I.R P.C 122., Sir Dinshaw Mulla's Hindu Law, 12th edn., p. 476 Section 304 and p. 187 Section 110).
16. Mr. Rane, relying on some of the provisions of the Adoptions and Maintenance Act, has argued that the wife's or mother's right to share or the right of daughters for provision on partition of the joint family property is abrogated. He refers to s. 18 which defines the right of maintenance of a wife against her husband under certain circumstances, s. 19 which defines the right of maintenance of a widowed daughter-in-law against her father-in-law and s. 20 which obliges a Hindu to maintain his or her children and aged parents. In the second set come ss. 21 and 22 which define the right of maintenance of dependants of a deceased person. The sections themselves show that the; obligation is personal. They do not deal with the incidents of the law of coparcenery and coparcenery property. It has no relation to rights of persons entitled to provisions being made out of the coparcenery property as such. If, as we have stated above, the right of the wife or the mother to claim a share in coparcenery property and of the daughters etc. to have a provision out of the same made is not a “provision having been made in this Act” as required by s. 4(a), then the principles of old Hindu law cannot be said to be abrogated, Section 4(b) evidently cannot apply.
17. Section 6 recognises the Hindu law of survivorship but by the proviso creates ??? exception and provides for devolution of the interest of the deceased coparcener if he died intestate and left any of the female heirs specified in clause 1 or a male relative specified therein claiming through such female relative. Probably, if the Explanation had not been there, there would not have been any difficulty in accepting the interpretation suggested in Dinshaw Mulla's Principles of Hindu Law and by other text writers. The difficulty has been ??? by reason of the Explanation which defines the interest of such Hindu Mitakshara coparcener. According to the Explanation the interest is “deemed ??? 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.” The question is, what was intended by the Legislature when it enacted this Explanation. The intention of the Legislature is to be found from the words used giving them their ordinary meaning. The explanation enacts, in effect, that there shall be deemed to have been a partition before his death and such property as would have come to his share would be divisible amongst his heirs, it introduces a legal fiction of a partition before his death, since without such fictional partition his share cannot be possibly determined. In s. 7, which makes provision for succession to persons governed by Marumakkattayam or Nambudri law by sub-s. (1) and to persons who are governed by aliyasantana law by sub-s. (2), there is an Explanation to each, which also defines the interest of such coparcener to mean such share in the property that would have fallen to him or her if partition of the property per capita had been made immediately before his or her death and such share is deemed to have been allotted to him or her absolutely. It would, therefore, appear from the scheme of ss. 6 and 7 that the Legislature intended that it shall be deemed that there was a partition in fact and substance and that such property as would be available to the deceased would be divisible among his heirs.
18. If this is so, can it then be said that, though the Legislature intended that there shall be deemed to be partition of the property and the share of the deceased coparcener shall be deemed to have been separated, the share to which the wife would be entitled should fall in vacuum and no relief can be granted to her? To put it in other words, where the wife of such coparcener is entitled to a share at such partition, should she not be entitled to claim it and should such share be allowed to be enjoyed by the son or sons? The Supreme Court in I.T Commr. v. S.S Teja Singh . [1959] A.I.R S.C 352., had occasion to deal with legal fictions. In para. 6 of the judgment, T.L Venkatarama Aiyar J., speaking on behalf of the Court, says (p. 355):—
“…It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate.”
19. Then his Lordship cited the observations of Lord Asquith in East End Dwellings Co. Ld. v. Finsbury Borough Council . [1952] A.C 109, at p. 132., with approval. These observations are to the following effect:—
“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. One of these in this case is emancipation from the 1939 level of rents. 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.”
20. Unless, therefore, there is anything contained in the Explanation to s. 6 or s. 7, the legal fiction of partition and separation of the share of the deceased coparcener at his death must be carried to its logical conclusion. The shares become fixed as if partition had taken place during his life-time and the decision in the case of Munnalal v. Rajkumar becomes applicable. If any person is entitled to a share on such partition or to maintenance and if he or she insists upon it, then the Court cannot refuse to give effect to such share or right to maintenance and marriage expenses. It is true, no doubt, that neither in s. 6 nor in s. 7 is there a provision for awarding such a share. However, it appears to us, that it is not necessary to expressly state so and the legal fiction in the Explanation implies within it the further consequences that, if any one is entitled to such share as is allowable to her, she is entitled on demand to have that share.
21. In Venkiteswara Pai v. Luis . [1964] A.I.R Ker. 125, F.B, a Full Bench of the High Court while considering the provisions of O. XXII, r. 4, held that, in view of the proviso an Explanation to s. 6, the share of a deceased coparcener in the coparcener property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. It is indeed true that case doe not touch the present question. But it does hold that a partition is deemed to have been effected as on the date of the death of the coparcener and it is such share as must be deemed to have come to him that is divisible amongst his heirs.
22. The view that we are taking is consistent with the object of the Legislature. Under the old Shastric law, there were stringent restrictions on females inheriting and possessing properties. There were also stringent conditions regarding their powers of disposal over such properties. In many of the Schools governed by the Mitakshara law, as close an heir as a sister, or a daughter's daughter, or a son's daughter, or a sister's son were not entitled to inherit the brother, the grandfather or the maternal uncle. In order to remove these disabilities, Act No. II of 1929 known as the Hindu Law of Inheritance Amendment Act of 1929 was passed which gave for the first time a place to females in the list of heirs entitled to succeed to a person. Then came the Hindu Women's Right to Property Act, 1937, which for the first time recognised the right of a widow to inherit the property of her husband and also to acquire his interest even in coparcenery properties. The present Act repealing the 1937 Act, provides for succession even in respect of coparcenery property, and it could hardly have been intended that the share of her sons should be augmented by a supposed notional partition for determining the share of her husband and she must be left to claim the share at some future date as and when partition is effected between her sons, if she had the good fortune to have more than one son. Similarly, it could hardly have been intended that the provison required to be made out of the coparcenery property for the maintenance and marriage expenses of daughters should be left to the sons. It would not be giving full effect to the language of the statute if the mother is denied her legitimate share in the coparcenery property on a partition which is deemed to have taken place at the time of her husband's death. It may also be restricting the implication of the words used in the section if we hold that, in respect of the maintenance and marriage expenses of daughters and others, no such arrangement should be made and they should be left again to the mercy of their brothers. We have been referred to the articles of Dr. J. Duncan M. Derrett in 66 Bombay Law Reporter Journal Section, p. 169 and B. Shivramayya in 67 Bombay Law Reporter Journal Section, p. 65. In the first article, the author has advocated the views which have been expressed by the Editor of Sir Dinshaw Mulla's Principles of Hindu Law. The second article supports the decision in Shiramabai Bhimgonda's case. It is true that, in view of what we have stated above, the decision in Shiramabai's case cannot be accepted. On the other hand, it is also extremely difficult to accept the apparent view of the sections expressed in Sir Dinshaw Mulla's Hindu Law.
23. Our conclusion, therefore, is that when the interest of the deceased coparcener is to be determined, the Courts should first determine what is the property available for partition as provided in Section 304, Sir Dinshaw Mulla's Hindu Law, p. 475, then partition the coparcenery property setting aside the share of the widow to which she is entitled in her own right and divide the share of the deceased coparcener amongst the heirs; and by the decree make poper provision for the maintenance and marriage expenses of the daughters and award the widow her due share in the coparcenery property and divide the property of her husband amongst the heirs.
24. It seems that some argument was made before Chandrachud J. based on the act that s. 30 of this Act, which repealed the Hindu Women's Rights to Property Act, 1937, is itself repealed by Act LVIII of 1960. It was probably suggested that the rights of the widow in the coparcenery property were revived by this repeal. It is sufficient to say in this connection that s. 7 of the General Clauses Act lays down that the repeal of an enactment which repealed an earlier one, would not, unless expressly provided, revive the repealed enactment. In this case, apart from the General Clauses Act, even the repealing Act No. LVIII of 1960 itself provides by s. 5 that the repeal of the provisions of the repealing enactments will not revive the enactments repealed by them.
25. If a Bench disagrees with the judgment of another Division Bench, the ordinary procedure is to refer the matter to a fuller Bench for reconsideration, lowever, I was a party to the decision in Shiramabm's case and can state that the matter was not fully argued before us and we had not been in a position to consider all the pros and cons of the matter. Therefore, as held in Parappa Ningappa v. Mallappa Kallappa . 1955 58 Bom. L.R 104, F.B, we are not bound by that decision.
26. In this case there are no daughters and no disqualified heirs.
27. On a partition during the life-time of Lalji Patil, the plaintiff would have been entitled to one-third share and on succession to a further one-sixth share. Her share, therefore, in the property will be one-half share.
28. We, therefore, modify the decree of the Courts below by decreeing to the plaintiff one-half share instead of one-sixth share. A preliminary decree will accordingly be drawn up and remitted to the trial Court for effecting partition in accordance with the preliminary decree within two months from the record reaching the trial Court.
29. As the question involved is somewhat difficult it seems it would be proper to order the parties to bear their own costs throughout.
30. Order accordingly.
Hindu Succession Act, 1956,
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