CHANDRACHUD - (1.) IT will be easier, with the help of the following pedigree, to understand the point involved in this appeal: JUDGEMENT_383_3_1978Image1.jpg Khandappa died on 27/06/1960 leaving him surviving his wife Hirabai, who is the plaintiff, two sons Gurupad and Shivpad,. who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5. On 6/11/1962 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, land, two shops and movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons. If a partition were to take place during Khandappa's lifetime between himself and his two sons, the plaintiff would have got a 1/4th share in the joint family properties, the other three getting a 1/4 the share each. 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. That , in short, is the plaintiff's case.
(2.) DEFENDANTS 2 to 5 admitted the plaintiff's claim, the suit having been contested by defendant 1, Gurupad, only. He contended that the suit properties did not belong to the joint family, that they were Khandappa's self-acquisitions and that, on the date of Khandappa's death in 1960 there was no joint family in existence. he 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 31/03/1955 he had given directions for disposal of the share which was reserved by him for himself in the earlier partitions. There was, therefore, no question of a fresh partition. That, in short, is the case of defendant 1. The trial court by its judgment dated 13/07/1965 rejected defendant 1's case that the properties were Khandappa's self-acquisitions and that he had partitioned them during his lifetime. Upon that finding the plaintiff became indisputably entitled to a share in the joint family properties but, following the judgment of the Bombay High Court in Shiramabai v. Kalgonda, 66 Bom LR 351 : (AIR 1964 Bom 263) the learned trial Judge limited that share to 1/24th, refusing to add 1/4th and 1/24th together. As against that decree, defendant 1 filed first appeal No. 524 of 1966 in the Bombay High Court, while the plaintiff filed cross objections. By a judgment dated 19/03/1975 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. Defendant 1 has filed this appeal against the High Court's judgment by special leave. Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Lalji, 68 Bom LR 74 : (AIR 1966 Bom 169) had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai Bhimgonda, (AIR 1964 Bom 263). In these two cases, the judgment of the Bench was delivered by the same learned Judge, Patel J. On further consideration the learned Judge felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of law, the widow's share must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. In the judgment under appeal, the High Court has based itself on the judgment in Rangubai Lalji endorsing indirectly the view that Shriamabai was incorrectly decided.
(3.) SINCE the view of the High Court that the suit properties belonged to the joint family and that there was no prior partition is well-founded and is not seriously disputed, the decision of this appeal rests on the interpretation of Explanation 1 to S. 6 of the Hindu Succession Act (30 of 1956). That section reads thus: ''6. 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 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 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.'' The Hindu Succession Act came into force on 17/06/1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in mitakshara coparcenary property, the pre-conditions of S. 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappa's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in Class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to S. 6 comes into play and the normal rule is excluded. Khandappa's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate secession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to S. 30 of the Act, the interest of a male Hindu in mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.;