LexGURUPAD KHANDAPPA MAGDUM versus HIRABAI KHANDAPPA MAGDUM AND ORS.
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GURUPAD KHANDAPPA MAGDUM
v.
HIRABAI KHANDAPPA MAGDUM AND ORS.
April 27, 1978
[Y. V. CHANDRACHUD, C.J., P. N. SHINGHAL &
V. D. TuLZAPURKAR, JJ.]
Hindu Succession Act (Act 30 of 1956), Section 6 Explanation 1-Inter-
pretation of-Widow's share mus1 be ascertained by adding the share to which
she is entitled at a notional portion during her husb'and's life time and the
share she would get in her husband's interest upon his death.
Khandappa Sangappa Magdum died on Jnne 27, 1960 leaving behind, his
widow Hirabai, two sons Gurupad and Shivapad and
three
daughters.
On
November, 6, 1952 Hirabai filed special civil suit No. 26/53 for partition and
separate possession of a 7 /24 share in two houses, a. land, two shops and mov-
ables on the basis that these properties belonged to the joint family consisting of
her husband, and their two sons. The· case of the, plaintiff was that if a parti-
tion were to take place during Khandappa's life time between himself and his
two sons the plaintiff would have got a !th share ieach on the death of Khan-
dappa. Her further case was that Khandappa's tth share could devolve upon
his death on six sharers, entitling her to 1 /24th share besides. The trial Court
found that the suit properties belonged to the joint family and that there was
no prior partition. Following the judgment vf the Bombay High
Court in
Shiramabai Bhim{!onda v. Kalgonda [1963] 66 Bom. L.R. 351, limited her share
to only 1 /24th and refused to add Hh and I/24th together.
Dismissing the
defendant's appeal 524/66 and allowing the cross-objections of the plaintiff,
the Bombay High Court, by its judgment dated March 19, 1975 following 68
Born. L.R. 74 which overruled 66 Born. L.R. 351, held that the plaintiff \vas
entitled to 7 /24th share.
Dismissing the appeal by special leave, the Court
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 ~.fitakshara
propt."rty at the time of his death. The proviso to Section 6 contains a formula
for fixing the share of thi.: claimant, while Explanation 1 contains a formula for
deducing the share of the deceased. [765 H, 766 A-BJ
(b) Explanation 1 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 plaintiff's 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 1 has to
be given its due and full effect. [766 E-F, 767 C-D]
Co1111nissioner of Income Tax, Delhi v. S. Teja Singh, [1959] Suppl. S.C.R.
39; applied.
East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109/
132, quoted with approval
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2. (a) In order to ascertain the share of heirs in the property of a deceased
coparcener it is necessa.ry i~ the very nature of things, and as they very first step
H
to ascertain the share of the deceased in the coparcenary property. For, by
dong that alone can one determine the extent .ofl the claimant's share.
Expla~
nation I to section 6 resorts to the simple expedient, undoubtedly fictional, that
14-315SCI/78
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SUPREME COURT REPORTS
[1978] 3 S.C.1'..
the in.terest of a Hindu Mitakshara coparcener "shall be deemed to oo·'
the
share m the property that would have been allotted to him if a partition of that
pro~rty had taken place immediately before his death.
What
is
therefore
requued to be ~ssumed is that. a p~tion had in fact taken place between the
deceased and. h~s coparcencrs 11.·med1ately before his death. That assumption,
once made, 1s 1rrevocable.. In other words, the assumption having been made
once for the purpose of ascertaining the share of the deceased in the
copar-
cenary 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 Excerpt shown. Read the full judgment & AI analysis in Lexace.