JUDGMENT
Chandrakantaraj Urs, J.
1. This appeal is directed against the Judgment and Decree dated 17-11 -1977 passed in O.S.No. 46/1975 on the file of the Civil Judge, Chikodi. The appeal is by the sole defendant. We refer in the course of our Judgment to the parties by the ranks assigned to them in the trial Court.
2. The respondents-plaintiffs brought the suit for partition and separate possession of suit schedule properties claiming 5/9th share in the suit schedule properties detailed in the three schedules viz., A, B and C to the plaint. They are five agricultural lands situated in Palabhavi village of Raibag Taluk. Schedule ‘B’ properties are two houses, one bearing VPC No. 14A situated in Palabhavi village and the other situated in the land bearing R.S.No. 175/4/3B of the same village, such land being one of the five agricultural lands described in Schedule-A. The properties in Schedule ‘C’ were the movables consisting of an oil engine with pump installed in the land bearing S.No. 175/4/3B, a cart and a pair of bullocks. The 1st plaintiff in the plaint, alleged that she was the widow of one Mallappa who died on 9-11-1974 leaving behind a son Basappa, the defendant in the suit and a daughter Gowrawwa the 2nd plaintiff. The plaint schedule properties were the ancestral properties which belonged to and which were being enjoyed as such by the joint family consisting of deceased Mallappa, husband of the 1st plaintiff and the defendant. The plaintiffs pleaded that on Mallappa’s death the plaintiffs had become entitled to 5/9th share in the joint family properties by succession under Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act) and also the 1st plaintiff was entitled to a share in her own right in the suit properties. They however urged that when the defendant with a malafide intention gave a false wardi to the village revenue authorities to the effect that he was the sole heir and successor to late Mallappa and got his name entered in the relevant records relating to the plaint schedule properties, the plaintiffs preferred RTA appeal before the Assistant Commissioner, Chikodi, and in the meanwhile they requested the defendant to put them in separate possession of their 5/9th share in the plaint schedule properties, but he – refused. Therefore, they brought the suit.
3. The defendant resisted the suit claim inter alia contending that the plaintiffs and the defendant did not constitute a joint family, the defendant did not admit the genealogy detailed in the plaint; and the plaintiffs were not the heirs and successors of late Mallappa who had been telling the defendant that he had divorced the 1st plaintiff more than 30 years back. Thus the defendant contended that he was the sole heir of late Mallappa. Therefore, he wanted the suit dismissed.
4. On such pleadings, the trial Court framed as many as three issues which are as follows:
(1) Does defendant prove that as on the date of Mallappa’s death, the first plaintiff did not hold status as his wife and had been lawfully divorced by Mallappa earlier?
(2) Do plaintiffs prove the genealogy detailed in para 2 of the plaint?
(3) Are plaintiffs entitled to shares in the suit property by succession, and if so, to what extent?
5. The 1st plaintiff was examined as P.W.1 and documents Exhibits P-1 and P-8 were got marked in support of their case. The defendant in support of his contest examined himself as D.W.1 and one Gadegeppa Veerpakshappa Galabhavi as D.W.2. Apparently, no documentary evidence was produced in support of the contest by the defendant.
6. On issue No. 1 the trial Court came to the conclusion that the burden was heavy on the defendant to prove the factum of divorce and that he had failed to discharge that burden, and as such, held the issue against the defendant. Therefore, in this Court, Mr. N.A. Mandgi, learned Counsel appearing for the appellant, did not press that issue. Issues Nos. 2 and 3 were held in favour of the plaintiffs and the suit was decreed as prayed for.
7. It must however be mentioned here that originally the plaintiffs had claimed more than 5/9th share, by an amendment, they reduced their claim. The amendment came to be allowed without any objection from the defendant.
8. The contention before the trial Court by the defendant was that Explanation 1 to Section 6 of the Act created only a fiction by which notional partition was to be effected for the sole purpose of determining the share of the deceased coparcener whose interest was to devolve by testamentary or non-testamentary succession and not by survivorship and it could not be utilised for any other purpose than determination of quantum of such share. In support of that contention reliance was placed upon the decision of the Andhra Pradesh High Court in the case of P. GOVINDA REDDY AND ORS. v. GOLLA OBULAMMA . Per contra the plaintiff’s Counsel in the trial Court urged that as under the law applicable to Belgaum District of Karnataka, the 1st plaintiff, being the widow of deceased Mailappa, had a share equal to that of a son, if there was a partition during the life time of her husband and therefore she was entitled to 1/3rd share in the estate of the joint, family in addition to 1/3rd of 1/3rd share to which her husband was entitled to at such a partition. The 2nd plaintiff was therefore entitled to once again 1/3rd for what her father would have got at the partition had he been alive. Therefore, they claimed 5/9th share together.
9. The trial Court did not approve the contention advanced for the defendant. On the other hand, it ruled out the application of the Full Bench decision of the Andhra Pradesh High Court on the ground that that case dealt with heirs ‘who were all coparceners of the deceased coparcener and therefore operation of the proviso to Explanation-1 would not arise as in the case of the plaintiffs. On the other hand, the learned Judge relied upon the decision of the Division Bench of this Court in the case of M.V. SHIVAJI RAO KORE AND ORS. v. RUKMINIYAMMA AND ORS. 1977(2) KLJ 374 and also on a decision of the Full Bench of the Bombay High Court (Nagpur Bench) in the case of SUSHILABAI RAMA-CHANDRA KULKARNI v. NARAYANARAO GOPALRAO DESHPANDE AND ORS.
10. In this Court, Mr. N.A. Mandgi, learned Counsel appearing for the defendant-appellant, has canvassed more or less the same contention advanced by the defendant in the Court below. We had some difficulty in understanding his contention. Therefore, we asked him to write down the contention and the following is what he handed to the Court:
“Under Explanation-1 to Section 6 of the Hindu Succession Act, the fiction of ascertaining the quantum of share of an undivided interest of a dying coparcener immediately before his death in a deemed notional partition is for the purposes of devolution of interest of the said coparcener either by survivorship (main Section 6) or succession (proviso to Section 6) is for the purposes of Section 6 (both main and proviso) of the Act. For all other purposes the fiction extended under the Explanation to Section 6 stands contradicted. This fiction, therefore, does not extend to claim partition as mother under customary Hindu Law.”
11. It is not disputed by Mr. N.A. Mandgi that if there was a notional partition just before the death of the husband of the 1st plaintiff, the 1st plaintiff would be entitled to 1/3rd share in the joint family properties. In support of his above contention he has drawn our attention to the case of BHIWRA W/O BAJIRAO AND ORS. v. RENUKA W/O BAJIRAO AND ORS. AIR 1952 Nagpur 215. He sought sustenance from the observations made in that case to the effect that “the shares” of the male members of the family are neither diminished nor enlarged by the existence or non-existence of the particular females. Their true share is the one they would have obtained if there had been no females to consider. It is true their enjoyment of this share to the full extent is postponed so long as the ladies are entitled to maintenance, but the property set apart for this purpose falls for division among the family as it existed on the date of severance as soon as the females pass out of the picture for this reason or that when that occurs that portion of the property is re-divided and, each member then gets the full extent of the share he would have obtained if there had been no ladies to consider. Reliance also was placed on the observation to the effect that under the Hindu Law the ‘share’ which was allotted to the mother on partition was not a ‘share’ in the true sense but only a provision for maintenance, she got no ‘ownership’ in it till it was actually handed over to her and she was placed in a position to maintain herself out of it, and then her ownership was the limited ownership of a Hindu female holding for maintenance. The thrust of the argument, founded on the said observations, before us was that unless actual partition look place by metes and bounds, the 1st plaintiff could not independently claim 2/3rd share at the notional partition which is contemplated under Explanation-1 to Section 6 of the Act Similarly, he drew our attention to the observations of the Supreme Court in the case of LAKSHMI CHAND KHAJURIA AND ORS. v. SMT. ISHROO DEVI . That was a case arising out of Jammu and Kashmir Hindu Succession Act. What fell for consideration under Section 27 of that Act which provided for was testamentary succession of the undivided interest of the coparcener. After referring to a number of earlier decisions of the various High Courts,” Their Lordships observed that right of a wife under the Customary Hindu Law of Mitakshara School in areas other than Madras Province (meaning, Southern India) to include erstwhile Madras Province, (part of the present Andhra Pradesh which was part of the old Madras Province) Princely Mysore State, (the erstwhile Coorg Province and Kerala) the wife acquired a right to her share only if and when there was an actual partition that was in fact effected by metes and bounds. But the Supreme Court itself did not express any opinion as to whether disposition made by one ‘M’ therein constituted his particular share at a notional partition or whether it should be a larger one as that question had not been canvassed before the High Court. Therefore, they remitted the matter to the High Court to dispose of the question relating to the determination of quantum under the notional partition to be effected if there was a partition before the death of the said M, who had disposed of his undivided interest by a will in favour of one of the parties. Similarly, our attention was also drawn to the decision of the Allahabad High Court in the case of SRI GOPAL AND ORS. v. JANAK DULARI AIR 1946 Allahabad 289 wherein it has been held that at a partition between sons, mother becomes entitled to her share when division is effected by metes and bounds. We certainly cannot have any quarrel with the general proposition in the aforementioned decisions relied upon by the learned Counsel, Shri N.A. Mandgi. True, the law, the Mitakshara School of Hindu Law did provide for a share to the wife of the coparcener equal to that of a son when there was a partition in the family and though she had no right to sue for partition even after the 1937 Hindu Women’s Rights to Property Act was passed, her right was limited to a share at partition which was for maintenance. But that position has been considerably altered after the passing of the Hindu Succession Act, 1956. While Section 6 of the Act without the proviso does no more than reiterate customary Hindu Law, it deviates from the customary law in so far as it relates to succession to pre-deceased coparcener’s es ate when a particular class of heirs mentioned in the proviso exist. If that class of heirs do not exist then the proviso does not come into operation. Then, Section 8 also comes into operation and confers right on the female heirs or those male heirs claiming through the female heirs right to sue for partition and it is in that circumstances that the suit was filed in the present case.
12. Therefore, the question to be determined by us really is, whether as contended by Mr. N.A. Mandgi should the notional partition be illusory bereft of assignment of 1/3rd share to the 1st plaintiff but not given that 1/3rd share because there was no partition when Mallappa her husband was alive? We do not think Mr. N.A. Mandgi is right in contending that such should be the position in law. It is not a question of mere ascertainment of the quantum of share which the predeceased coparcener was entitled to in the joint family properties, but it is ascertainment of shares of those heirs claiming under deceased coparcener in the joint family estate that the notional partition should bring about. If that is not brought out then there is no purpose in having the notional partition. That was the reason adopted by this Court while considering in some what similar circumstances in the case of M.V. Shivaji Rao Kore and Ors. v. Rukminiyamma and Ors. The facts in that case were similar. The plaintiff therein was the widow of one Shankararao Kore leaving behind him number of heirs. That Shankararao was the brother of Shivajl Rao Kore. Shivajl Rao, Shankararao and one Venkatarao constituted undivided joint Hindu family. The plaintiff continued to live in the joint family till 1957. Then she left the joint family and demanded partition after due notice Inter alia claiming her share in the joint family properties, that is the share to which her deceased husband was entitled to. During the pendency of the suit, there was one more death in the family i.e., that of Venkatarao, the father. Therefore, as a person claiming through her deceased husband, she claimed an additional share as her husband’s heir and thus modified her claim. The trial Court allowed her claim holding that the language of Explanation-1 to Section 6 of the Act did not prevent the right to sue for partition and obtain separate possession of her deceased husband’s share. The emphasis was on the Explanation- Whether he was entitled to claim partition or not before his death, while construing that aspect of the case, the Division Bench of this Court came to the conclusion as follows:
“The main part of Section 6 reproduces the law as it stood before the Act was passed and it states that the interest in a joint family property of a deceased coparcener would devolve on the surviving coparceners. The proviso to this Section however introduces a departure from the law as it stood then in so far as the interest in the joint family property of a deceased coparcener who was left behind him a female relative specified in Clause (1) of-the schedule to the Act or male relative specified in that clause who claims through such female relative. The proviso read with Explanation-1 to Section 6 provides that on the death of a coparcener leaving behind the female relative or the male relative specified therein his interest in the joint family property would devolve by testamentary or intestate succession as provided in the Act and not by survivorship and that for purposes of quantification of the interest of the deceased coparcener it should be assumed that a notional partition has taken place immediately before his death irrespective of whether he was entitled to claim partition or not. To us it appears to be clear that neither the proviso nor Explaua-tion-1 states that on the death of a coparcener an actual division takes place between the heirs of such deceased coparceners and the other coparceners. They continue to be members of the joint family until such “time the property is actually divided from a share claimed by them. Explanation-1 cannot be read as actually bringing about a division. As already stated it only provides for determination of the extent of the share of the deceased coparcener which would devolve by testamentary or intestate succession and not by survivorship and it follows that any other subsequent event would not in any way affect the extent of that share.”
From the above it can be seen that once that notional determination of share is made, it cannot be altered. In other words, on the facts of this case if the defendant was entitled to 1/3rd share as determined at the notional partition, that 1/3rd share cannot be altered to the advantage by taking the 1/3rd share of the widow of his father to himself.
13. In almost identical circumstances the question fell for consideration before the High Court of (Nagpur Bench) Bombay in Sushilabai’s case. We think it would be useful to state briefly the facts of that case, before adverting to the law declared by the Full Bench. One N had a wife L. N had a daughter and he adopted a son S. S died on 29-12-1956 leaving him surviving his adopting father N, adopting mother L and his widow. L died on 13-4-1957. The daughter of N brought a suit for partition and separate possession of her share in movable and immovable properties. N died during the pendency of the suit making a will whereby he disposed of his interest in the family properties in favour of a charitable Society. Proceeding on the assumption that the fiction in the Explanation-1 of Section 6 should be carried to a narrow extent only with a view to implement the purpose for which it was introduced and having regard to the facts of the case, it was held (1) that upon a partition taking place immediately before the death of son S, N and L became entitled to 1/3rd in the interest of joint family properties. L is the mother, it was in that context, the then Chief Justice of Bombay High Court speaking for the Bench held as follows:
“The effect of the proviso read with Explanation-1 thereto is that when there is an heir of the nature specified in the proviso, the share of the deceased coparcener has to be determined on the assumption and deemed fiction that a partition of the property has taken place immediately before his death as the Explanation points out that such legal fiction has to be given effect to irrespective of the fact whether the deceased coparcener is entitled to claim partition or not.”
We are, therefore, fortified in our conclusion that the trial Court was correct in applying the ratio decidendi of the ruling of the Division Bench of this Court as well as in following the decision of the High Court of Bombay in Sushilabai’s case to which we have referred to.
14. We therefore see no merit in this appeal and the same is dismissed with costs.