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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1110 OF 2006

RAM NATH SAO @ RAM NATH SAHU SINCE DECEASED THR. L.RS.&  ORS.          ...APPELLANTS

VERSUS GOBERDHAN SAO SINCE DECEASED THR. LRS. & ORS.     ...RESPONDENTs

JUDGMENT RANJAN GOGOI, J.  

1. The appellants are the defendants in  a  partition  suit  filed  by  the respondents,  as  plaintiffs,  seeking partition  of  various  properties specifically mentioned in Schedule 'B' and Schedule 'C' of the plaint. 2. At  the  outset,  the  following genealogical  table  is  being  set  out  to enable a clear and easy understanding of the facts and the findings with regard to the entitlement of the parties that would

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be  arrived  at  in  the  course  of  the deliberations that follow.

Fuchan Mahto – died 1940 Wife Puniya Devi – died 1967

! ------------------------------------

               !                                !      Mithu Sao (son)  

(died 1961) ! ! ! ! ! ! !

Ugni Devi (daughter) (died 1995)

! –-------------------------------

   !         !            ! Jagar- nath

Parasnath (Appellants)

Dharamnath

         !     –------------------------------     !                              !

      Temni (1st wife)  !

–---------------------       !          !         !  

Bilaso Devi (2nd Wife) !

–-------------------------    !         !       !      !

Ramnath Kashinath Buchwa Govardhan Jagdish Baldeo Sarita (Appellants) (Respondents)     

3. The  case  of  the  respondents plaintiffs is that Fuchan Mahto (died in 1940), the common ancestor of the parties had a son Muthu Sao who died in the year 1961.  Mithu Sao had two wives, namely, Temni (1st wife) and Bilaso Devi (2nd wife). At the time of the filing of the suit for partition Temni (1st wife) was no more. The defendants in the suit Ramnath, Kashinath

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Buchwa are the sons and daughter of Mithu Sao  and  Temni  (1st wife)  whereas  the plaintiffs Govardhan, Jagdish, Baldeo and Sarita are the sons and daughter of Mithu Sao and Bilaso Devi (2nd wife), who is a co-plaintiff. 4. According to the plaintiffs, they along  with  the  defendants  constituted  a joint Hindu Mitakshra family which owned ancestral land recorded under Khata No.19 of  village  Lapanga  in  the  district  of Hazaribagh.   It  is  the  case  of  the plaintiffs  that  the  joint  family  also acquired lands in several other villages in the name of one or other members of the joint family. According to the plaintiffs, the parties continued in joint possession of  the  properties,  both  ancestral  and subsequently acquired.  As the members of joint  family  had  increased  it  became inconvenient to continue to remain joint. Hence the suit for a decree of partition was filed.  

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5. The defendants contested the suit, inter alia, on the ground that there was no unity of title and possession between the parties.  According to the defendants, after the death of Mithu sao in the year 1961 or even before his death there was disruption in the family on account of the fact  that  Mithu  Sao  had  married  twice. There  were  serious  differences  in  the family and the children of the first wife Temni separated from Mithu Sao.  It is the case  of  the  defendants  that  after  the death of Mithu Sao the children of first wife and second wife again separated.  The defendants  pleaded  that  as  there  was  no joint family in existence both the parties had  separate  earnings  and  only  the ancestral  lands  of  Khata  No.19  are available for partition, major portion of which had been acquired by the Government and  compensation  amount  had  been  evenly distributed amongst the parties according to their respective shares.  According to

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the  defendants,  the  other  items  of  the Schedule  property  are  self-acquired properties  which  are  not  liable  to  be partitioned.  6. The  learned  trial  Court  decreed the suit holding that the plaintiffs are entitled  to  the  extent  of  63-1/2  paise share in the Schedule 'B' property; items 1 to 8 of village Labaga in Schedule 'C'; items 1 and 2 of village Rasda in Schedule 'C'; and items 1 to 8 of village Hafuwa in Schedule 'C' properties and 12 paise share in the properties mentioned in Item No.9 of  village  Hafuwa  in  Schedule  'C' properties.  The defendants appellants, on the other hand, were found to be entitled to  the  remaining  37-1/2  paise  in  the Schedule 'B' property and items 1 to 8 of village Labaga; items 1 and 2 of village Rasda; and items 1 to 8 of village Hafuwa in Schedule 'C' properties.   By the said decree which has been affirmed in appeal by the High Court, so far as the property

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mentioned in item No.9 of Schedule 'C' is concerned, 12 and 11 paise share therein in favour of the plaintiffs and department have been granted.  As the said property i.e. item No.9 of Schedule 'C' pertain to 23 paise share of the five sons of Muthu Sao  in  property  purchased  by  them  along with  other  persons  by  8  different  sale deeds,  the  said  property  is  not  the subject  matter  of  the  present  appeal  in its truncated form, as indicated earlier. 7. This Court while issuing notice in the  present  appeal  confined  the  area  of

scrutiny to the question of “allocation of  shares  as  regards  to  the properties found to be joint family properties”.  In view of the aforesaid limited notice, the issue with regard to the  shares  of  the  respective  parties  in the  joint  family  properties  alone  will have  to  be  determined  in  the  present appeal  and  no  question  of  reopening  the

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concurrent findings of the learned forums below  with  regard  to  the  existence  of joint family and the holding of properties jointly can arise. 8. We have heard the learned counsels for the parties. 9. Fuchan  Mahto  died  in  the  year 1940.  At the time of his death, the Hindu Women's  Rights  to  Property  Act,  1937 (hereinafter  referred  to  as  “the  1937 Act”) was in force.  Section 3(2) of the 1937 Act which is relevant for the present case provided as follows:

“3(2) When a Hindu governed by any  school  of  Hindu  law  other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a  Hindu  joint  family  property, his widow shall, subject to the provisions  of sub-section (3), have  in  the  property  the  same interest as he himself had.”

10. Under  Section  3(2)  of  the  1937 Act,  on  the  death  of  Fuchan  Mahto  his widow/wife Puniya Devi became entitled to a  share  in  the  joint  family  property.

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However,  the  share  of  Puniya  Devi  would remain  undetermined  till  such  time  when there is a partition in the family.  This is what has been held by this Court in Potti Lakshmi Perumallu  vs.  Potti Krishna Venamma1.  The relevant paragraph in the said  judgment  to  the  above  effect  is extracted below:

“According  to  the  theory underlying  the  Hindu  law  the widow of a deceased Hindu is his surviving half and, therefore, as long as she is alive he must be deemed to continue to exist in her person. This surviving half had under the Hindu law texts no right to claim a partition of the property of the family to which her  husband  belonged.  But  the Act of 1937 has conferred that right  upon  her.   When  the  Act says that she will have the same right  as  her  husband  had  it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the  date  on  which  she  claimed partition.”

11. On  the  date  of  death  of  Fuchan Mahto, his son Mithu Sao did not have any male issue.  However, the joint family in

1 (1965) 1 SCR 26

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question  can  be  understood  to  have continued  with  Mithu  Sao  as  the  'Karta' and  the  property  continued  to  belong  to the joint family.  The above view would find  support  from  the  decision  of  this Court in Gowli Buddanna v. Commissioner of Income  Tax,  Mysore,  Bangalore2,  relevant portion of which is extracted below:

“Property  of  a  joint  family therefore  does  not  cease  to belong  to  the  family  merely because  the  family  is represented  by  a  single coparcener  who  possesses  rights which an owner of property may possess.   In  the  case  in  hand the  property  which  yielded  the income originally belonged to a Hindu undivided family.  On the death  of  Buddappa  the  family which  included  a  widow  and females born in the family was represented  by  Buddanna  alone but the property still continued to  belong  to  that  undivided family  and  income  received therefrom was taxable as income of the Hindu undivided family.”

12. The position, therefore, prior to the  coming  into  force  of  the  Hindu Succession  Act,  1956  was  that  the  joint

2 (1966) 3 SCR 224

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family  continued  on  the  death  of  Fuchan Mahto  with  Mithu  Sao  as  the  sole coparcener and the joint family properties continued  to  belong  to  the  family  and furthermore Puniya Devi continued to have a share in the property. 13. At this stage, the provisions of Section  6  of  the  Hindu  Succession  Act, 1956 will require a specific notice which is extracted below:

“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 him surviving a female relative specified in class-1 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

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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.”

14. After the death of Mithu Sao in the year 1961, following the provisions of Section  6  of  the  Hindu  Succession  Act, 1956, a notional partition just before the death  of  Mithu  Sao  will  have  to  be presumed.  There  would,  therefore,  be  8 sharers in the joint family properties and the share of each one of them would be as follows:

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Mithu Sao 1/8 Bilaso Devi (wife) 1/8 Puniya Devi(mother) 1/8 Ramnath (son) 1/8 Kashinath (son) 1/8 Goverdhan (son) 1/8 Jagdish (son) 1/8 Baldeo (son) 1/8

Insofar as Bilso Devi, the wife of Mithu  Sao  is  concerned,  she  would  be entitled  to  1/8th  share  of  the  joint family  properties  upon  the  notional partition  being  given  effect  to.   The share  of  the  widow  of  a  Hindu  male coparcener following a notional partition has  been  recognized  by  this  Court  in Gurupad  Khandappa  Magdum  versus  Hirabai Khandappa Magdum and others  3  . Paragraph 9 and 14 of the report in Gurupad Khandappa Magdum (supra)  may  be  usefully  noted herein below:

“9. The  next  step,  equally important  though  not  equally easy to work out, is to find out the share which the deceased had in  the  coparcenary  property because after all, the plaintiff

3 (1978) 3 SCC 383

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has  a  1/6th  interest  in  that share.  Explanation  1  which contains  the  formula  for determining  the  share  of  the deceased  creates  a  fiction  by providing that the interest of a Hindu  Mistakshara  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. One must, therefore, imagine  a  state  of  affairs  in which  a  little  prior  to Khandappa's  death,  a  partition of the coparcenary property was effected  between  him  and  other members  of  the  coparcenary. Though the plaintiff, not being a  coparcener,  was  not  entitled to  demand  partition  yet,  if  a partition  were  to  take  place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth  Edition,  page  403, para  315).  In  a  partition between  Khandappa  and  his  two sons,  there  would  be  four sharers  in  the  coparcenary property,  the  fourth  being Khandappa's wife, the plaintiff. Khandappa  would  have  therefore got  a  1/4th  share  in  the coparcenary  property  on  the hypothesis  of  a  partition between himself and, his sons.

xxx  xxx  xxx 14. The  interpretation  which we  are  placing  upon  the provisions  of  section  6   its proviso  and  explanation  I thereto  will  further  the

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legislative intent in regard to the enlargement of the share of female  heirs,  qualitatively  and quantitatively. The Hindu Law of Inheritance  (Amendment)  Act, 1929  conferred  heirship  rights on  the  son's  daughter, daughter's  daughter  and  sister in  all  areas  where  the Mitakshara  law  prevailed. Section 3 of the Hindu Women's Rights  to  Property  Act,  1937, speaking broadly, conferred upon the Hindu widow the right to a share  in  the  joint  family property  as  also  a  right  to demand  partition  like  any  male member of the family. The Hindu Succession Act, 1956 provides by section 14(1) that any property possessed  by  a  female  Hindu, whether acquired before or after the  commencement  of  the  Act, shall be held by her as a full owner  thereof  and  not  as  a limited  owner.  By  restricting the  operation  of  the  fiction created by Explanation I in the manner  suggested  by  the appellant, we shall be taking a retrograde step, putting back as it  were  the  clock  of  social reform  which  has  enabled  the Hindu Woman to acquire an equal status with males in matters of property. Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will  further  the  intention  of the  legislature  and  remedy  the injustice  from  which  the  Hindu women  have  suffered  over  the years.”

[underlining is ours]

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15. Next aspect of the case is with regard to the 1/8th share of Mithu Sao and the devolution of the said share to the surviving members of the joint family.  In this regard, it can be held without any difficulty  that  under  the  proviso  to Section  6  of  the  Hindu  Succession  Act, 1956 the share of Mithu Sao in the joint family property (1/8th) would devolve by intestate succession, in the absence of a will, in the following manner.  

Bilaso Devi _1__ 8x9

= _1__ 72

Puniya Devi _1__ 8x9

= _1__ 72

Ramnath _1__ 8x9

= _1__ 72

Kashinath _1__ 8x9

= _1__ 72

Goverdhan _1__ 8x9

= _1__ 72

Jagdish _1__ 8x9

= _1__ 72

Baldeo _1__ 8x9

= _1__ 72

Buchwa Devi _1__ 8x9

= _1__ 72

Sarita _1__ 8x9

= _1__ 72

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16. Thus after 1961 Puniya Devi being the widow of Fuchan Mahto had 1/8th  plus 1/72th share in the joint family property, namely, 10/72th share.  Puniya Devi died in the year 1967 leaving behind her daughter Ugni  Devi  and  the  children  of  her predeceased son Mithu Sao.  Ugni Devi will be entitled to receive one-half share of Puniya Devi i.e. half of 10/72th share i.e. 10/144th share.   The  remaining  10/144th

share that would go to the branch of Mithu Sao  will  have  to  be  divided  amongst  8 heirs of Mithu Sao, namely, the widow and the seven children.  Thus, the aforesaid 10/144th share  would  devolve  in  the following manner.

Bilaso Devi _1_  8

x _10_  144

= _10_  1152

Ramnath _1_  8

x _10_  144

= _10_  1152

Kashinath _1_  8

x _10_  144

= _10_  1152

Goverdhan _1_  8

x _10_  144

= _10_  1152

Jagdish _1_  8

x _10_  144

= _10_  1152

Baldeo _1_  8

x _10_  144

= _10_  1152

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Buchwa Devi _1_  8

x _10_  144

= _10_  1152

Sarita _1_  8

x _10_  144

= _10_  1152

17. Consequently the share of each of the parties would be as follows:

Bilaso Devi _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Ramnath _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Kashinath _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Goverdhan _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Jagdish _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Baldeo _1_  8

+ _1__ 72

+ _10_ 1152

= 14.76%

Buchwa Devi _0_  0

+ _1__ 72

+ _10_ 1152

= 2.25%

Sarita _0_  0

+ _1__ 72

+ _10_ 1152

= 2.25%

Ugni Devi _10_ 144

= 6.94%

Thus calculated the share of the appellants would be :

14.76 (Ramnath) + 14.76 (Kashinath) + 2.25  (Buchwa  Devi)  +  6.94  (LRs.  of Ugni Devi) = 38.1%

18. In view of the above, it will be necessary to modify the decree passed by

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the learned trial Court as affirmed by the High Court by holding that the appellants – defendants are entitled to 38.1% share in  the  joint  family  property  instead  of 37.5% as ordered by the courts below.  

19. The appeal consequently is allowed to the extent indicated above and with the aforesaid  modification  of  the  decree passed  by  the  learned  trial  Court  as affirmed by the High Court.  

....................,J.      (RANJAN GOGOI)

....................,J.   (ASHOK BHUSHAN)

NEW DELHI APRIL 06, 2017.