{"id":18032,"date":"1974-08-22T00:00:00","date_gmt":"1974-08-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sushilabai-ramchandra-kulkarni-vs-narayanrao-gopalrao-deshpande-on-22-august-1974"},"modified":"2015-07-24T23:04:08","modified_gmt":"2015-07-24T17:34:08","slug":"sushilabai-ramchandra-kulkarni-vs-narayanrao-gopalrao-deshpande-on-22-august-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sushilabai-ramchandra-kulkarni-vs-narayanrao-gopalrao-deshpande-on-22-august-1974","title":{"rendered":"Sushilabai Ramchandra Kulkarni vs Narayanrao Gopalrao Deshpande … on 22 August, 1974"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sushilabai Ramchandra Kulkarni vs Narayanrao Gopalrao Deshpande … on 22 August, 1974<\/div>\n
Equivalent citations: AIR 1975 Bom 257, (1975) 77 BOMLR 558<\/div>\n
Author: Kantawala<\/div>\n
Bench: Kantawala, Tulzpurkar, Dharmadhikari<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Kantawala, C.J.<\/p>\n
 1. This  Division Bench of this Court has referred to the Full bench the following two questions for determination:\n<\/p>\n
  (1)  Is the scope  of the fiction in the Explanation of Section 6  of the Hindu Succession Act, 1956 as wide  as was held  in Rangubai v.  Laxman, , and  whether  the  view taken in Rangubai’s case that as a  result of the notional partition contemplated  by the proviso  to Section 6 of the  Hindu Succession Act, the shares of persons other than the deceased coparcener  also become fixed as if a partition had taken place during the lifetime of the deceased coparcener is correct?\n<\/p>\n
  (2)  On the facts found in this case to what share is the plaintiff entitled in the suit property?\n<\/p>\n
  2. The plaintiff filed a suit for partition and separate possession of her share in movable and immovable property referred to in the plaint.  Plaintiff Susbhilabai is the daughter of one Narayanrao.   Narayanrao had a wife by name Laxmibai, Narayanrao adopted a son by name  Shridhar,   Shridhar died on December 29,  1956, leaving him surviving his adoptive  father Narayan, adoptive mother Laxmibai and his widow Shantabai, Laxmibai  died  on  March 11,  1965, making a will whereby he disposed of his interest in the family  property in favour  of Samarth Charitable Society, a Society registered under the Societies Registration Act.\n<\/p>\n
  3.  The trial  Court  partially  decreed the suit giving the plaintiff 1\/8th  share in the estate belonging to the family.   This  quantum of share was determined on the footing that  Shridhar the adopted son had 1\/2 share  in the family property and the adoptive father  Narayanrao had the remaining half share therein.    On Shridhar’s death his interest in  the family  property was divided equally between his  widow Shantabai and his adoptive mother  Laxmibai.   Thus, according to the trial  Court,  upon Shridhar’s death,   Shantabai   became entitled to 1\/4th  share in the family property i.e.,  half share in Shridhar’s  property and Laxmibai became equally entitled to 1\/4th share  in the family property.   On Laxmibai’s death in the year  1957 her interest in the family property  was divided  equally  between the plaintiff,  her daughter and her husband Narayan.    Thus  upon the finding of the trial Court the plaintiff became entitled to 1\/8th interest in the family  property and passed a decree accordingly.   Aggrieved by the   decision of the trial Court  the plaintiff preferred an appeal.\n<\/p>\n
   4. The contention on behalf  of the plaintiff was that when Shridhar died, his share should be considered to be 1\/3rd in  the joint  family property and  from  the remaining 2\/3rd, 1\/3rd ,  would  be the share  of his adoptive father Narayan and the  remaining 1\/3rd would be the share of  adoptive mother Laxmibai, that on the  death of Shridhar 1\/3rd share that would have been allotted to him in the joint  family property would in his death be  inherited equally by his mother Laxmibai  and by his widow  Shantabai as both of  them are the female heirs specified in  Class I to the Hindu Succession Act, hereinafter referred to as ‘the Act’.   Thus, the  submission was that on the death of Shridhar, Laxmibai’s share would come to  1\/3rd plus 1\/6th i.e., 1\/2 share in the family property and that on the death of  Laxmibai, the plaintiff as the  daughter  became entitled to 1\/2  share in Laxmibai’s estate.  Thus she became entitled to  1\/4th  share in the whole of the joint family property.   On the other hand, on  behalf  of the contesting defendants, the  contention was that in a notional partition as provided under Section 6 of  the  Act Laxmibai will not be entitled to any  share on the footing of a partition but  under the proviso to Section 6 she will be  entitled to 1\/2  share in the 1\/3rd share  which  will be allotted to Shridhar immediately before his death.   Thus according to the contesting defendants.    Laxmibai  will be  entitled  to only  1\/6th  share  in the entire family  property and upon  her death the plaintiff would  be entitled to 1\/12th share therein.   As  there  was no  appeal on behalf  of the  defendants,  the  decree passed by the trial  Court giving  the plaintiff 1\/8th share in the family property was not sought to be disturbed.\n<\/p>\n
  5. When  this appeal  came up for hearing before  the Division  Bench several decisions were cited before the Court which showed that there was a conflict of  legal  opinion between the view taken by  this Court in Rangubai Lalji v. laxman  Lalji  and the view taken by the  other  High Court s and the Division Bench  considered it necessary to refer the above  two questions for determination by the  Full Bench.   On interpretation by Section   6 of the Act there is a possibility of difference of opinion on the question whether upon partition of the share of the  deceased  coparcener the remaining coparceners continue to be joint or become separate.  So far as that question is concerned, it will be relevant to decide only  when the coparcenary consists of more  than two members and one of the members of the coparcenary dies.   We do not  propose to decide that larger question as k in this case the coparcenary consists of  only tow male members, namely Narayanrao the adoptive father and his adopted son Shridhar and we propose to confine ourselves only to the facts of the present case and do not express any opinion  on the larger question that may possibly arise upon the interpretation of Section  6  of the Act.\n<\/p>\n
  6. Mr. Bobde on behalf or  the plaintiff  contended that when  one of the coparceners dies, his share in the coparcenary property goes by survivorship to  the remaining surviving coparceners under the Hindu Law.  that when coparcenary  subsists and no partition is claimed, no  coparcener can predicate that he has definite share in the coparcenary property  and that  when the coparceners have separated, their property goes by succession  to others.   His submission was that upon proper interpretation of Section 6 of  the  Act, a moment before the death of Shridhar a notional partition took place as a  result of which Narayanrao, Laxmibai  and Shridhar each became entitled to   1\/3rd share in the joint family property,  that upon the  death of Shridhar his 1\/3rd  share in the joint family property devolved upon Laxmibai his mother and  Shantabai his widow equally.   He submitted that it is not necessary for us to  go into the larger question that upon proper construction of the provisions of Section 6 of the Act upon the death of a Coparcener levying 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, when the interest of the  deceased in the Mitakshra coparcenary becomes separate, the other surviving coparceners become separate inter se. He only confined his submission to the facts of  this case  when the coparcenary consisted of father and son and the question arises  as to what is the share of the mother  upon the death of her son having regard  to the provisions  of Section 6.   On behalf  of the contesting defendants Mr. Palshikar has contesting defendants Mr. palshikar has contended that the provisions of  Section 6 of  the Act do not effect severance of joint status at all, that the Section primarily recognises the rule of survivorship in respect of coparcenary property  upon the death of a coparcener, that k the proviso to that section merely provides for an exception  when the deceased  coparacener has left 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, that when such is the case special provision is enacted to the proviso  read with Explanation 1 with regard to law of succession and no alteration is  made to the normal rule of partition  which should prevail  and govern in accordance with the normal Hindu Law.   In enacting this Act, according to Mr. Palshikar, the intention of the Legislature was  only to codify the law relating to intestate  succession among Hindus qua the deceased coparcener and not the law relating  to partition.   he  submitted that neither  under  the proviso nor under Explanation  1 to  the section there is severance of joint  status between deceased Shridhar and his k father Narayanrao.  Only the interest of  Shridhar in the coparcenary property l goes by testamentary or intestate succession.  In view of the fact that he dies  without leaving a will, his interest in the  coparcenary property, which  would have been allotted to him as if on a partition immediately before his death, has to be determined but  there is nothing in the  statute  to show that a partition or severance in status came into effect upon or prior to the death of Shridhar.\n<\/p>\n
  7. The  Act  was enacted with  a view to amend and codify the law relating  to intestate succession among Hindus.  It came   into force  on June 17,  1956, Section 6 if the Act provides  for devolution of interest in coparcenary property and its provisions are as under:-\n<\/p>\n
  “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:\n<\/p>\n
  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 the class who claims through such female relative the interest of  the deceased in the Mitakashra coparcenary property shall devolve by testamentary or intestate succession, as the  case may be, under  this Act and nt by survivorship.\n<\/p>\n
  Explanation 1.   for the purpose 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.\n<\/p>\n
   Explanation 2.   Nothing contained in the proviso  to this section shall be construed as enabling a person who has separated himself from the coparcenrary before the death of the deceased or any of his heirs to claim on intestacy a share in the  interest referred to therein”.\n<\/p>\n
  8.  Prior to enactment of this Act a coparcener having undivided interest in the coparcenary property had no right to  make testamentary disposition in respect  thereof but by Section 30  of the Act such  right was, for the first time, conferred  upon  a cfoparcener even though there was  no partition prior to the date of his death.   The main part of Section  6 of  the Act  normally recognises an reiterates the  rule of survivorship in respect of devolution of interest by survivorship upon the  death of a coparcener in favour of surviving members of the coparcenary.   Even under the proviso when there are no  female or other heirs of the class specified therein, the rule as to survivorship  has to prevail but if the deceased coparcener dies leaving 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 such deceased coparcener in the mitakshara coparcenary  property shall devolve by testamentary or  intestate succession, as the case may be under the  Act and not by survivorship.   Shridhar left him surviving his adoptive  mother Laxmibai and his widow Shantabai.   Thus in view of  the proviso his interest in the coparcenary property is nt k to devolve in accordance it the rule of  survivorship but his interest in that coparcenary property is to devolve by intestate  succession as he died  without leaving a  Will.   It was urged by Mr. Bobde that it  is implicit in the very language of the  proviso to Section 6 that when devolution   is by testamentary or intestate succession aqua that deceased coparcener there is  severance of status in the coparcenary  property.  On the other hand, the argument of Mr. palshikar is that this is only a departure qua the rule of devolution of  interest.   Ordinarily upon the death of a coparcener his interest in the joint family property will go by survivorship to the remaining coparceners, while in the persent case as there was  a female heir, the rule of survivorship was not attracted but the property was to devolve by test  mentally or intestate succession.   Such is the   rule  of succession but it has no effect of  effecting severance in the joint family status.\n<\/p>\n
  9.  Ordinarily under Shastic Hindu Law the interest of a coparcener in the  Mitakshara coparcenary is undivided .   The ownership of the coparacentary property is in the whole body of coparceners.   According to the true notion of an  undivided family governed by the Mitakshare law, no individual member of that  family, whilst it remains undivided, can  predicate of the joint and undivided  property  that he as a member has a definite share e.g., one-third or one-rough.   His  interest is as fluctuating interest, capable of being enlarged by death of any coparcner in the family.   Thus, it is only on  a partition that he becomes entitled to a  definite share.  When there is a female  here or a male heir of the  nature specified in the proviso,  the language  of the proviso lays down   that the interest of the deceased coparcener would devolve by testamentary or  intestate succession under rate law.   The very devolution of interest of the deceased coparcener by testamentary or intestate succession presupposes that at the  moment of his death the share or interest of such a coparcener in the coparcenary property is either determined or  is defined or is specific.  If the share is  defined or specific, then it cannot be a  fluctuating type of interest which an undivided copearcener is normally possessing in  the Hindu undivided family.   how effect its to be given to this rule of devolution by  testamentary or intestate succession  is made explicit in Explanation 1 to the  section.  Under the Explanation  for the purposes of the section the interest of a Hindu Mitakshara coparcener shall be  deem  tobe 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 the was his death, irrespective of whether he was  entitled to coak partition or not.  It cannot be disputed that partition in accordance with law consists of numerical division of the property.  In other words, it  consists in defining the shares of the copartners in the joint family property.   The Explanation undoubtedly lays down a legal fiction and as regards effect to be  given to the legal fiction two views are possible.   On view as laid down by  T.L.  Venkataraman Aiyer, J., in Commr. of  Income-tax  Delhi v. S. Teja Singh<\/a>  is that it is a rule of interpratation well settled that in construing the scope of the legal fiction it would be  proper and even necessary to assume all those facts on which alone the fiction can  operate.   This view is based upon the observation  of Lord Asquith in East End  Dwelling Co. Ltd. v.  finsbury Borough Council, 1952  AC 109.   Those observations are to the following effect:-\n<\/p>\n
   “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 complained 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  you imagination to boggle when it comes to the  inevitable corollaries of that state of affairs”.\n<\/p>\n
  If the  legal fiction contained in Explanation  1 is   to be extended as laid down in l this principle, then it is possible to urge that upon a copartner dying leaving a  female heir or other heirs as specified  under  proviso to Section 6  not only the  share of the deceased coparcener is separated a moment  before his death but,  there is also a partition amongst the surviving coparceners as in a partition under  Hindu Law.   The other view as regards  legal fiction is that the legal fiction cannot be stretched off beyond the purpose  for which it was enacted.   This  view is  based  upon the decision of the Supreme Court in State of Travenocre-Cochin v. j Shanmugha Vilas Cashew Nut Factory .   For the purpose of the present case we do not propose to decide whether the legal  fiction created by Explanation 1 has  to be given full effect  as stated in the earlier view and we are prepared to proceed on the assumption that it should not be stretched beyond the purpose for which it was enacted.\n<\/p>\n
  10. The effect k of the proviso read with Explanation 1 there to  is that when there is an heir of the nature specified in the proviso, the share of the deceased copacener has to be determinated 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 k is entitled to claim partition or not.  It is well settled that there is no presumption that when one person separates from  the other coparceners that the latter remain united.  An agreement amongst the  remaining members of a joint family to  remain united or to reunite must be  proved like any other fact.  It is open to non-separating members to remain joint and to enjoy as members of a joint family what remained of the joint family property after such a partition.  No expresses agreement is necessary for this purpose  agreement is necessary for this purpose but the intention to remain joint maybe inferred from the way in which their  family business was carried on k after their former co partner had separated from  them or it may be inferred  from other conduct indicating are stated in  brief in more than one  decision of the Supreme Court.  In A. Raghavamma v. A. Chenchamma<\/a> ,  the Supreme Court has laid down the principle as shown by the head – note (f)  in that case:L   <\/p>\n
   “The general principle undoubtedly is taht  a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the corparceners did separate himself from the  other members of the joint family and  had his share in the joint property partitioned off for him, there is no presumption that  the rest of the coparceners continued o be joint.   There is no presumption on the other  side too that because  one member of the family separated himself there has been separation with regard to all.   It would be a question of fact to be determined in each case upon the  evidence relating to the intention of  the  parties whether there was a separation amongst the other coparceners or that  they remained united.   The burden is certainly on the person who sets up partition to prove the said fact”.\n<\/p>\n
  A similar view has been  reiterated by the Supreme Court in Girijanandini Devi v. Bijendra Narian, .\n<\/p>\n
  11. As Shridhar left him surviving his adoptive mother Laxmibai and his widow Shantabai, the quantum of the share which  will devolve by intestate  succession under the proviso to Section 6  has to be determined as provided in Explanation 1.   This  Explanation lays down that Shridhar shall be deemed to be entitled  to a share in the family property that would have been allotted to him  if  a partition of the property had taken place immediately before his death.  It is not disputed that if a partition has taken  place immediately before the death  of  Shridhar, he would have been entitled to  1\/3rd share in the property,.   The question, however, arises whether the remaining 2\/3rd share is to remain with Narayanrao or is to be divided between Narayanrao and his wife Laxmibai equally.  Under Shastric Hindu Law a wife cannot demand a partition but if a partition does take place between husband and his son, she is entitled to receive a share equal to that of his son and the hold and enjoy that share separately even from her husband.     The question that arises in  this  case is whether this right to claim a share equal to that of a son upon a notional partition as contemplated by Explanation 1 is taken  away or is to be given effect to .  It cannot be disputed that devolution by testamentary or intestate succession of the  property of the deceased coparcener in  coparcentary property cannot take place  unless his share therein is determined or specified.   How that  share is to be determined is  laid down in the Explanation and that is  on the footing that immediately before  his death a partition has been effected  and he has been allotted a share.  Explanation 1 provides for machinery for determining the quantum of such shares in the joint family property but the severance is implicit in the language of the  proviso itself.   It cannot be disputed that  so far as coparcentary in the present case  is concerned it consists of only two coparceners viz., Narayanrao and his adopted son Shridhar.  Now if a partition  is  deemed to have taken place immediately  before Shridhar’s death, then naturally  that partition can only be effected between Narayanrao and Shridhar i.e. between father and son.  If that is so, independently of the provisions of Section 6 under pure Hindu law the mother is  entitled to receive a share equally to taht  of a son i.e., upon such severance of the  share of Shridhar, not only Shridhar is  entitled to 1\/3rd share nut the mother is  equally  entitled to one third share on the  footing that there is a partition l between  Narayan on the one hand and Shridhar on  the other.  Thus  the right conferred k upon a mother under Hindu Law is not  affected by any of the provisions contained in the Act, as partition is provided in Section 6 for determining the interest of the deceased coparcener.\n<\/p>\n
  12.  Laxmibai is also one of the female heirs specified in Class of the Schedule to the Act.  If that is so, upon Shridhar’s death his 1\/3rd interest in the  property is not to go by survivorship to  his father Narayanrao but is to be governed by intestate succession in accordance   with the Act because he did not die leaving a Will.   The heirs who were entitled  to inherit Shridhar’s property upon  his  death are those who are specified in Class I to the Schedule of the Act.   So far s the  present case is concerned, the widow and  the mother are the two heirs  so specified.   Thus 1\/3rd share which  came to Shridhar  upon partition  will be equally divided between his widow Shantabai and his  adoptive mother Laxmibai.   Thus,  Laxmibai in addition to 1\/3rd share she gest on the partition, will also be entitled to 1\/6th  share in the family property as the heir of Shridhar.\n<\/p>\n
  13. That such is the correct position in law is recognised by a number of judicial decisions which gave effect to the  right  of a female person  under Hindu Law.   In Parappa Ningappa v. Mallappa 58 Bom LR  404 = (AIR  Bom 332)  (FB)  the Full Bench of this Court has taken  the view that under Hindu law, in a suit  by as on for partition and separate possession of his share after setting aside the  alienation k  of joint family property made  by his father, the mother, who is a party is  entitled to a share, if the Court comes  to the conclusion that the alientation is  nt for a purpose  binding upon the family  consisting of the father, mother and sons.    Two  approaches were presented to the  Full bench and the question arose which  of the two  approaches should be accepted in case of a widow.  The one  approach is the approach that an alienation however unauthorised, is  valid  until it is  challenged, that the right to challenge is  restricted to the copartners and it is only  those who can challenge the alienation  who can claim their shares in the joint  family property as not haivng been affected  by the alienation, the rest of the  joint family property begin  validity alienated to the alienee.  The other approach  is that the wife has an interest in the  joint family property, however inchoate  that interest might be and that interest  must be protected as much in a suit for  partition at the instance of her son as in  a suit   for partition whether at the instance of the alliance or at the instances of  her own son which suit has been necessitated by unauthorised alientation by her  husband.   The  Full  Bench held that although  the wife has no right to challenge  the alientation as her right in the family property is inchoate and has not come  into existence because there is no partition, because of the legal fiction her share  in the joint family  property cannot be  alienated by her husband when the alienation is not supported by legal necessity.   In other words, what the alliance gest is  strictly the share of the alien or not augmented by the inchoate share of his wife.   The aliens would have the right which  the father would have to a partition and  what would come to him upon the partition being made.   Therefore, notionally  and fictionally such a partition should  be  effected and what share would come  to the father on such a partition being made ought to be decided and   that is the share that would pass  to the  aliens.  Thus,  in this case even before  the partition was effected of the joint  family property on a suit by a son to  challenge the validity of alienation made by the father the right of the wife to share  the property was   recognised and it was to be determined at the date of the alienation.\n<\/p>\n
  14. A similar right under Hindu Law was recognised by the Full bench of Allahabd High Court in Bilaso v. Dina  Nath, (1880)  3 ILR All 88.   The Full Bench took the view that a Hindu Widow,  entitled by the Mitakashrar law to a proportionate share with sons upon  partition  of the family  estate, can claim such share,  not only  quoad the sons, but as against  an auction purchaser at the sale in the  execution of a decree of the right, title  and interest of one of the sons  in such  estate before voluntary partition.   At page 90 it is observed as under:-\n<\/p>\n
   In  an undivided family consisting of mother and sons, the mother is only entitled to maintenance so long as the family  remains undivided in estate; but in case a  partition is made the law gives her a right  to an assignment of a share in the property left by her husband equal to a  son’s share.   The right the  mother has is  a right to participate in the property left  by her   husband, and it has been described  as a latent an inchoate right of participation  which becomes effective when separation takes  place.   Such being the  right of the mother, and the son’s obligation towards her in respect of the assignment of a specific share of the property  on  partition we have to see what position  the purchaser in execution of the right, title and interest of a member  of an undivided family takes”.\n<\/p>\n
  It  was held that the auction purchaser was not entitled to the share which would have been allotted to a Hindu widow if a partition had taken place.\n<\/p>\n
  15.  A  similar  view was taken by Ameer  Lal  Mitter,  v. Manick Lal  Mullick, (1900)  ILR 27 Cal 551. A Hindu mother is entitled  under the law to be  maintained out of the joint family property, and if anything is done affecting that right, as for instance by the sale of any particular share by any of her sons, her right comes into existence. A purchaser from one of the  sons has the  same right and takes it subject to the  same liabilities as those of the person  from whom he purchased.  Even in this case the right  of a Hindu mother to share in the property was also recognised though no partition had taken place prior to the institution of the suit.\n<\/p>\n
  16.  The right of a wife to a share  on a partition  between her husband and son was reaffirmed also by the Nagpur High Court   in Radhabai v. Pandharinath Bapu. ILR  1942 Nag 534  = (AIR 1941 Nag 135).  Under the  Mitakshara laws  a wife is entitled to a share on a partition between her husband  and her sons, and she can sue for her are if she has not been  assigned a  share  if she has not been assigned a share in the  partition provided  she hasn’t assented to or acquiesced  in the partition or waived her rights.   This decision clearly recommends  that a  Hindu female who under Shastric Law will have a right of share upon a partition can assert that right if events have taken place which may  jeopardise that right  even prior to partition.\n<\/p>\n
  17. The construction that we have placed upon the provisions of Section 6 is  in conformity with the intention of the  legislature if regard be  had to the legislative history conferring larger rights  upon  female heirs than those conferred  under pure  Shastric Hindu law.   By the  Hindu Law  of  Inheritance (Amendment)  Act, 1929, female heirs like son’s daughter, daughter’s daughter and sister became  entitled to share as  heirs in all parts  of India where Mitakshra law prevailed.   Prior to this  enactment female heirs  were recognised as  her is only in Bombay  and Madras and not in other parts of the  country.   By Hindu Women’s  Rights to  property act, upon the death of a Hindu  his down was entitled to a share either  in the  joint family  property or separate  property.  She was also given a right  to  claim a partition though under the law  the interest obtained by her as a result  of partition was to be animated interest  which was available to a female.   By  the  Hindu Adoptions and  Maintenance Act, k 1956  right to adopt as well as maintenance has been conferred upon  a Hindu female.  Looking to the legislative his  story, qua the rights of a Hindu female,  the provisions of the Act shoudl be so  construed as will  further the intention of  the legislature in enlarging the rights  available to a female under Hindu Law.   We are not putting in the present case strained construction upon the provisions, of Section 6.    As stated earlier, having  regard to the language of the proviso itself when  there  is a female heir or other  heirs of the type specified in the proviso, the  share or interest of a deceased coparcener in the coparcenarny becomes severed as it is to go or devolve by testamentary  or instate succession.  How  that  share  is to be computed is to be determined in the manner provided by Explanation 1. The Explanation 1 presupposes the legal  fiction that  immediately before his death  the partition has taken place in the family and his interest in the joint family   property has been ascertained and such  share will thereafter go by testamentary k or intestate succession as provided in the Act.  Such being a scheme of the Act, if severance takens  place upon the death of a coparcener leaving such female heirs or other heirs specified in the proviso, to ascertain his interest, the construction shoudl not be put upon the language of  the section so as to curtail the rights  which  a Hindu female may have under Shastric Hindu law.  We are merely  affirming the right which the mother has when  partition takes place between father and son.   Such  right is conferred  upon her by pure Hindu law and as the notional partition takes  place upon the death of Shridhar a moment prior  to his  death.   Laxmibai has to be given 1\/3rd  share as  a result of that partition.  In addition there to she will  be entitled to  claim her share as an heir of adopted son Shridhar.\n<\/p>\n
  18. A large number of decisions have been cited before us where the provisions of Section 6 of the Act have come  up for consideration.  So far as this High Court  is concerned,. the provisions of Section  6 have  been considered in three of  the reported decisions to which our attention has been drawn.   The first is the   decision in the case of Shirambai v. Kalgonda Bhimgonda, .  In this  case  the  provisions of Section 6 as  well as Section  4 of  the  Act   came  to be considered and  upon interpretation thereof the Division  Bench of this Court consisting of patel  and Chitale, JJ. took the view that the  interest of a Hindu Mitakshara  coparcener available  for division under Section 6  of the Act will be such  share in the property as would be allotted to him if a  partition of the property had taken place  immediately before his death amongst the  coparceners according to the rules of  Hindu Law with  the qualification that the   rule of Hindu Law providing a share to  the mother and maintenance and marriage  expenses of the daughters must be treated  as abrogated in view of Section 4 of the  Act, Section 4(1)(b)  of the Act provides  that save as otherwise expressly provided in this Act, any other law in  force immediately before the commencement of  the act shall cases to apply to Hindus in  so far as it is in consistent with any  of  the  provisions contained in the Act.   The Division Bench accepted the contention k urged that the rule of the Mitakshara   Law that on a partition the mother is entitled  to a share 9a limited estate) and  that daughter’s maintenance and marriage  expenses shoudl be provided is for the  reason, that they do not have any share  in the family property as such nor are  they entitled to succeed to the husband  and father respectively.  After the Hindu  Succession Act came into force they are  entitled to succeed to a share on the  death of husband and father and under  Section  4 that   rule of partition must be  deemed to have been abrogated.   The Division  Bench rejected the contention urged on behalf of the appellant in taht l case that as the explanation to Section 6  defines the interest of the coparcener to  be the share  that the father would have  got on a partition it amounts to an express saving of that rule of partition for  the obvious reason that it does not enjoin  actual partition and does not enable the  mother to reduce her share into possession.   The explanation according to the Division bench, is intended to be of general application and cannot be treated as saving the above said rule of partition.   In the opinion  of the Division  Bench  to uphold the contention would produce most unjust results which could never have been intended by the Legislature.\n<\/p>\n
  19. The correctness of the decisions  of the Division Bench in  Shirambai Patil’s case was doubted by Chandrachud, J, when  the appeal in the case of Rangubai Lalji Patil v. Laxman Lalji patil   came  up of rearing and he referred that   appeal for decision by the Division  Bench.    As a result of the reference by Chandrachud, J., the matter came up for hearing  before the Division bench consisting of  Patel and Bal, JJ.  and the decision of the  Division Bench is reported in Rangubaj Lalji Patil v. laxman Lalji Patil, , Patel, J., who delivered  the judgment in the earlier case  in Shiramabai’s case was a party to this decision and he declined to follow that decision and took a contrary view on the  ground that in Shiramabai’s case the matter was not fully argued and the Division  Bench was not in a position to consider  all the pros and cons of the matter.  In  Rangubai’s case  a Hindu coparcenery consisted of the husband, his wife and his adopted son.   The husband died after coming into force of the Hindu Succession  Act and his down foiled a suit claiming a  half share k in the coparcenary property.     The Division bench took the view that on the interpretation of Section 6 of  the Act  on a partition during the lifetime of the  husband  the widow would have been entitled to one-third share and on succession to a further one-sixth share and therefore her share in the property would be  one-half share.   The scheme of Section 6  together with Explanation 1 was  considered  and the Division bench took  the  view taht for the purposes of Explanation  1 to the proviso of Section 6 of the  Act,  when the interest of the deceased coparcener is to be determined, the Court  should first determine what is the property available for partition and then partition the coparcenary property setting  aside the share of the widow  in which  she  is entitled  to her own right and divide  the share of the deceased coparcener  amongst the heirs.   The decree  must  make  proper provisions for the maintenance and  marriage expenses of the daughters and   award the widow her due share in the  coparcenary property and divide the property of her husband  amongst  the heirs At page 82 it is  observed as under:\n<\/p>\n
   “Section 6 recognises the Hindu Law of  surbvivorship but by the proviso creates an 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 claming through such female relative.  probably, if  the Explanation had nt been there,  there would  not have been any difficulty in accepting the interpretation suggested in Dinshaw Mulla’s  principle of Hindu  Law and by other text writers.   The difficulty has been created by reason of the  Explanation which defines the interest of  such Hindu Mitakshara coparcener.   According to the Explanation the interest is  ‘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”.   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 legal  fiction of a partition before his death,  since without such fictional partition his  share cannot be possibly determined”.\n<\/p>\n
  The Division bench thereafter considered the provisions of Section 7  of the Act  and further observed.   “it would, therefore, appear from the scheme of Sections   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.   Undoubtedly the latter part of  the decision points out that the legal fiction of partition and separation of the  share of the deceased co parcener at his  death must be carried to its logical conclusion.  On this aspect of the matter we   do not propose to express any opinion and we have proceeded on the assumption  that the object of the fiction was to quantify the share of the deceased coparcener  and the point of time at which such quantification has to be  made.   Proceeding on  that footing, partition has taken place a  moment before the death when there are  two coparceners viz.,  father and son and  one of them dies.   When  such a partition  takes place, even though notionally, a  female, who under the Shastric  Hindu law is entitled to a share, will be entitled to claim such share not by reason of  the provisions of the Act and under pure Hindu Law.   There is nothing in the provisions of the Act which denies such a right to  a Hindu female.\n<\/p>\n
  20.  The provisions of Section 6 also came to be considered by a Single Judge of this Court in Govindram Mithamal Sindhi v. Chetumal Villardas, .   It may  be stated at the outset that while the question was considered by the single  Judge  his attention was not drawn either  to the decision  of  the Division  Bench  in Shirambai’s case.   The scheme  of Section 6 is considered by the learned  Judge  and he has taken the view that Section 6 is introduced in the  Hindu Succession Act for the purpose of  effecting a change in the normal mode in  which  the joint family  property used to  pass from one person to another in a joint  Hindu Family.   In a joint Hindu family  possessing joint family property the  male  members from a coparcenary.   When  a coparcener dies, his right, title and interest in the  joint family property  the  male members form a coparcenary.   When  a coparcener dies, his right, title and interest in the joint family property go by  survivorship to the other coparceners   This normal  mode  in which the property  passed form person to person in a joint  Hindu family was sought to be challenged  by introducing a certain type  of succession in the case of the interest of the coparcenes in the joint Hindu property.   Section 6  in the  first instances speaks of  Mitakshara coparcenary possessing property.   The opening substantive  part of  Section 6  provides that 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 member of the coparcenary and not in accordance with  this Act.   The normal devolution by survivorship, which was a distinguishing feature of the Mitakshara Coparcenary, is sought to be maintained  even by the Hindu Succession Act.   however, there is a proviso added to this section k which carves out a case when the  family consists of certain types of members.   Then of learned Judge considered  thelanguage of the proviso read with  Explanation 1 thereto and further observed that if the deceased had left behind him any female relative specified in that class in Class I of the Schedule or a   male relative specified who claims through  such female relative, the interest of the  deceased in the Mitakshara coparcednary  property shall devolve by testamentary or  intestate succession as the case may be, under this  Act and not by survivorship.   This  is provided by the proviso.   How the  interest of the deceased in the Mitakshara coparcenary property shall  be determined  for the purpose of devolution, whether k testamentary or intestate contemplated  by the proviso, is provided in Explanation 1. While  discussing this case a further question arose before the learned Judge whether  having regard to the provisions of Section 6 a full  partition of  the family property takes  place or it is a  piecemeal partition with respect to the  interest of the deceased and what is the  effect in either case on the entire family  property or the interest an drights and liabilities inter se between the other coparceners in the family.   The question, however, was not decided by the learned Judge and the learned  Judge has merely chosen to confine his decision to  the facts of the case which arose for consideration in that litigation and did not  express any opinion as regards generalisations relating to the theory of partition.   In this  case the real question  that arose  for decision was whether the heirs who  were entitled to inherit  the joint family  property by reason of the provision of the  proviso were necessary parties to the suit  upon the death  of a coparcener whose interest in the property devolved upon  them by testamentary or intestate succession and the learned Judge  took the view  that upon the death the interest of such  a deceased coparcener ceased to have the character of joint family property and as  such unless the heirs who inherited the  property were brought on record their  interest in the property was not represented and the frame of the sit was defective, if  such heirs were necessary parties to the suit and the suit was liable to be dismissed if they were  not  brought on record.\n<\/p>\n
  21. Two other High Courts  in this country have taken a view  upon  the construction of Section  6 which is similar to  the one taken by the Division  Bench of this Court  in Rangubai’s case.   In Ananda  v. haribandhu, AIR  1967  Pro 194  the  Division bench of Orissa High Court took  the view that Explanation 1 to Section 6  introduced a radical change.   In that case  one of the coparceners named Joydeb  died  and it is stated that though in fact  Joyeb’s interest in the coparcenary property had not been carved out, a legal  fiction was introduced that the interest  shall be deemed be the share in the  property which would have been allotted  to him, if a partition of the  properly  had  taken place immediately before his death.    It postulates that in order  to fix the interest of Joy deb a partition immediately  before his death must be taken to have  occurred.   If that is the legal hypothesis,  it follows as a logical corollary that   plaintiff No. 2,  who was the third wife of  the  deceased, must  be allotted a share in  that partition amongst the father and the  two sons.   Though undoubtedly it was a  case of more than two coparcener sand  the question arose upon the death  of one,  view taken was that a female heir,  who was entitled  to a share upon a partition for separation  of the interest  of the  deceased coparcener, was entitled to  a share  which Shastric law  has conferred upon her.\n<\/p>\n
  22. A similar view has been taken by a Single Judge of Gujarat High Court in Vidyaben v. Jagdishchandra Nandshankar Bhatt, .     The  learned Singel Judge who decided that  case followed  the decision of the   Division Bench  of this Court  in Rangubai’s case and  that of the Orissa High Court  above referred to.   In the case before  the Gujarat High Court the deceased coparcener was survived by wife, son and four  daughters.   Upon the death of the coparcener the property would be divided  in  three parts, 1\/3rd going to the widow in  her own right as she would have been  entitled to a share equal  to that of a son and  husband had partition taken place  immediately before the death of her husband; the  son would get 1\/3rd share and  the  remaining 1\/3rd share i.e.,  the interest of the deceased in the property would be equally divided among  all the six  heirs.   This was a case where there were  only two coparceners as in the case of  Rangubai where upon separation of the  share of the deceased coparcener having regard to the provision  of the proviso to Section 6 the  wife was allotted a share on such partition having regard  to the  provision  of pure Hindu Law.\n<\/p>\n
  23.  Our attention has been invited to a large number of cases where there are some  observations which go to indicate some  what 6 contrary view.   It will be useful to refer to these cases and consider whether  any of the said decision is  likely to be of any assistance in deciding  likely  to be of any assistance in deciding  the narrow issue to which we propose to  confine our decision.   In kanahaya All v.  Smt. jumma Devi. , a question  arising under Section 6  of the Act came up for discussion.   it may be  stated  at  the outset that the decision of  the Division bench of this Court in Rangubai’s case  was not cited before the  Court.  Upon analysis of the provisions of Section 6 the  Division bench of Delhi  High Court took the view that the Mitakshara coparcenary property has been allowed to devolve by survivorship on the  surviving  members of the coparceners and  not by way of succession under the Act,  but an exception has been carved  out of  this rule of law by the proviso that if  the deceased dies, leaving behind him a  surviving female relative specified in  Class I of the Schedule (the other part is not material) which  would include a  widow and the daughters, then  the rule of  law is that the interest of the deceased in  the Mitakshara coparcenary shall devolve by succession (testamentary or interested)  under the provisions of the Act and  not by survivorship.   To work out  the  right, an explanation has been added  which  provides for a notional partition in  the family at the time of the death of the  deceased and then the share which  would, upon a partition, have been allotted  to the deceased just before his death,  would constitute the property  which would  be inherited by the heirs in accordance with the provisions of Section 8 of  the Act amongst the heirs specified in First Schedule.   This was a case where there were more than tow copartners in the family  and one of the coparceners died leaving  heirs specified in the proviso.   There are no direct observations on the  question  whether  upon separation of the  share  of  the deceased coparcener, in order  that it may devolve on his heirs by testamentary or  intestate succession the remaining coparceners remain united or become separate.  Only in para 10 of the  judgment the quantum of shares are  merely stated on the footing that a female  who upon separation of the share may get a share equal to that of a son has not been allotted that share.\n<\/p>\n
  24.  In Chandradatta v. Sanatkumar,  a single  Judge of Madhya Pradesh High Court had  an occasion to consider the scheme of Section 6 of  the Act.  He has taken the view  that the provisions contained in Section  6 merely  incorporate the concept  of a  notional partition for the limited purpose  of enabling succession and computation  of the interest of the deceased coparcener  which otherwise would have  devolved  by survivorship and also for the as curtailment  of the share in that interest of the  heirs specified in Class  I of the Schedule.    Subject to such carving out of the interest of the deceased coparcener, the other  incidents of the coparcenary are left undistrubed and the joint family continues without disruption.   It  is  not correct to think that in a case where  the proviso to Section 6 comes  into play,  the statues of the joint family is disrupted on the death of a copartner.   The  purpose of the legal fiction introduced by  these provisions is limited.   The observations in this case are obiter and for the  purpose of deciding the issue before the  learned Judge it was not necessary to  consider this question.   That was a case in  which a decree passed against the father  during  his lifetime in a suit  in respect of  pre-partition debt came to be executed  after his death against the shares obtained by the sons on partition and a question  arose as regards the remedy of the decree-holder.   The learned  Judge took the  view that his remedy was not by way of a  separate suit.  In such execution proceeding the son is at liberty to show that the property in his hands in not liable to pay the debts of his father.  All these questions fall was a case where the father died leaving more than one son.\n<\/p>\n
  25.  Our attention is invited to the decisions of Andhra Pradesh  High Court;  one  decision  of the Full Bench in P. Govinda Reddy v. Golla Obulamma,  and the other  a decision of the single Judge in Yethirajulu Neelaya v. Mudummuru Ramaswami, .    In both the cases the question that primarily arose  for consideration was whether a suit  that was instituted during the life time of a coparcener was liable to be continued in the absence of heirs of a coparcener who died during  the pendcency of the suit being brought on record.   In  the decision of the Full Bench  in P. Govinda Reddy’s  case a mortgage was executed in favour of one  Potalpati Nagi Reddy.   Reddy the mortgagee died in 1960 leaving him surviving  his widow, four sons and two married  daughters.   his eldest son Govinda Reddy  thereafter brought a suit against the  heirs of the deceased mortgagor on the  last day of limitation for enforcing  the  mortgage.  A question  arose in this case  whether the female heirs who  were entitled to inherit the property having regard  to the provisions of the proviso to Section  6 of  the Act were necessary parties  to the suit and the Full bench of Andhra  pradesh High Court  took the view that  it was so and in their  absence the suit  was liable to be dismissed.  In that case within period of limitation an application  to bring the female her is on record  was not made and that was regarded as  fatal to the suit.  While considering this k question the Court undoubtedly considered scheme of Section 6   of the Act.  Even before the Full bench the decision  of the Division bench of this Court either in  Rangubai’s case or in Shirambai’s case  was not cited.   While considering the provisions of Section 6   the Full bench pointed out that Explanation 1 introduces out of necessity a legal fiction for ascertainment of interest of the deceased coparcenary.   His  interest according  to it will be  deemed to be the share that would have  been allotted to him if there was a partition immediately before he died irrespective of the fact whether he could claim such partition or not n that day.   The need for the legal fiction arose out of impelling necessity for according to Mitakshara Law so longs there is no partition no coparcener can predicate that he has got a definite share in the coparcenary  property.   The  legal fiction was designed  for a limited purpose, namely for computation of the interest of the deceased copartner for  purposes of devolution of  the same on his heirs so that the repay be no difficulty in giving  effect to the  proviso.  In the opinion of the Full  Bench, Section 6  of the Act has nothing to do with the disruption of the joint family status.   The coparcenary will continue notwithstanding the death of a coparcener  until partition is effected.   Till then the  Karta of the joint family will be in charge  of the management of the coparacernary  property and will be entitled to exercise all powers which he enjoys by virtue of  his position.   The effect of Section 6 in the  coparcenary, if at all  is that in case the  proviso applied to the devolution of the interest of the deceased that interest or specified share will be taken in pursuance of the legal  fiction, out  of the   coparcenary property  in so far as the  heirs of the deceased are concerned and will be available  for allotment to them.   Otherwise the coparcenary  will continue as ever.   For  the purpose  of  the case it  was unnecessary  to consider whether the remaining coparceners remained separate or became united.   What was relevant to be considered was when  the share or interest of a deceased coparcener in the coparcenary property devolved in the manner laid down in the  proviso  upon the heirs specified therein,  whether such heirs were necessary  parties  to the suit and whether such heirs even  though  they were not the members of the  coparcenary would have been represented  by a Kartha.   That question was answered by holding  that such heirs were necessary parties in their own right and  the Kartha could not represent them.   Following this decision a similar view  has  also been taken   by a Single Judge in  Yethirajulu Neelayya v. Mudumuru  Ramaswami, .   It  may however be pointed out  in this case  that even  though  the heirs of the deceased coparceners were not brought on record the continuance of the suit did not  suffer from any infirmity by reason  of absence of the heirs as it was a suit by at least some of the co-owners against the trespassers.\n<\/p>\n
  26. We may  incidentally refer to a decision of the Calcutta High Court  which has been referred with approval by the Full bench of Andhra Pradesh in .   In this  case Mudumuru's family considered of the father and his three minor sons.  One of  the minor sons deed during the pendency  of the litigation after the Act came into  force leaving  the mother as the only heir.   As the mother was a female heir as specified in the proviso to Section 6 the  provisions of the proviso were attracted  and  she inherited the property which would have been allotted to the minor son on a   partition immediately before his death.   The single Judge of the Calcutta High Court in Narayan Prasad Ruja v. Mutuni  Kohain, , took  the view  that the mother was a necessary party to the suit and in her absence the suit  suffered from infirmity .     But there are certain observations in this judgment of  Mr. Justice Bijayesh Mukherji which it would  be useful  to refer.  In para 4 of the Judgment he observed as under:- \n\n   \"A karta of joint family property is quite an understandable concept.   But   karta for a divided property, of  property partitioned, notionally though, appears to  be incomprehensible.  So, old karta theory  cannot help matters forward for the petitioner before me and Narayan Prasad  Ruja as karta cannot represent his deceased son's  mother and necessarily his wife upon whom devolves the share of the property  after partition.   The very  nexus of the joint family property is gone\".    (underlining is ours.) \n\n \n\n<\/pre>\n
  Though there are no distinct observations on the  question whether  the remaining   coparceners continued to be separate or  joint, a prima facie observation is made  that the nexus of the joint family property is gone.   However, on  the facts, as the  mother of the deceased minor was necessary party continuance of the suit was  regarded  as suffering from infirmity.   In  karuppa Gounder v. Palaniammal.   , the Division  bench of madras High Court considered the effect  of  the proviso and Explanation 1 to  Section   6.   According to the Division bench, the  intendement of this provision is very clear.  It is that persons  entitled to succeed to the  interest  of a deceased coparcener under  the Act shall not be subject to the hazard  of the fluctuating fortunes of the family.   The Act  itself determines what the share  of the heir shall be and it specifies it  clearly to be that share on partition, if partition had been effected immediately  before the coparcener’s death.   Though  factually no partition may have taken  place, the quantum of the share of the  female heir is effectively determined by  this provision and n curtailment of that  share is permissible on footing of the existence of the joint family  or of the valid  exercise of the power of the father  to  make a gift.  here also the question whether upon separation of the share of the deceased in order that it may devolve by  testamentary or intestate succession under the proviso to Section 6  rendered the rest of the members of the coparcenary united  or separate was not  considered.\n<\/p>\n
  27.  A similar question  come to be considered  by Allahabad High Court in the matter  arising under the Estate  Duty Act in  the case of Controller of Estate  Duty U. P. v. Smt. Anari Devi Halwasiya,  .  The deceased in that case was entitled to 1\/4th share in the  property if  a partition was effected as contemplated in Explanation thereto.   The Division bench has, inter alia, observed  that 1\/4th  interest of the coparcenary  property representing the interest of the  deceased copartner was carved out for  the purpose of intestate succession.    The  balance  of the coparcenary property, representing 3\/4 of the original property, continued to remain joint.  That was also  a case where there were more than two  coparceners and reliance was placed in this case upon the decision of the Privy  Council  in Pratapmull v. Dhanbeti Bibi,  AIR 1936 PC 20.  Thus Privy Council held that in a suit instituted by a son for the  partition of joint family property imploding his mother and other member of the family as defendants the mother  does not become owner of the share allotted to her by the preliminary decree until  the preliminary  decree is carried out and there is a division by metes and bounds.  It may be pointed out that the  decision of the privy Council was given  at the time when the Hindu Succession  Act was not inforce and actually not with standing the decision of  the privy  Council, in Munnalal v. Rajkumar,  after referring to this decision the Supreme Court  has pointed  out  that Section 14 of  the Hindu Succession  Act effected a change in law and once a  preliminary decree was passed declaring  the quantum of share of each of the persons entitled to the share on a partition  and  if thereafter a female person entitled  the to such  share died, having  regard to the  provisions of Section 14  of the Act such  interest was regarded as the property of the deceased Hindu female.\n<\/p>\n
  28. The last  case to which out attention was drawn  was the decision of  Mysore  High Court in Commr, of Income tax Mysore v,. Smt. Nagarathanamma, (1970) 76  ITR 352 (Mys).   The  Division  Bench has taken the view that on the  death of the karta of a Hindu undivided  family after the coming into force of the Hindu Succession Act, 1956, his  share in  the income that accrued form firms in  which he had been a partner as karta, devolves by succession on his own heirs,  and is not assessable as income of the  Hindu  undivided family.  For the purpose  of computation or determination of the  share of the male Hindu Explanation 1  to Section 6  of the Hindu Succession Act   assumes that a notional partition in the  family had taken place  immediately before his death.  The joint family, notwithstanding the death of one of its male  members  continues for the purpose of income-tax, but  the share of that joint family is diminished to the extent of the  share of the member dying.   This was also  a case  where    the coparcenary consisted  of more  than two  members  and continuance of the joint family property was considered on that footing.\n<\/p>\n
  29. In none  of the cases where a view  has been  taken  that notwithstanding separation of the share of the deceased copartner having regard to the proviso to Section 6 of the Act.    the remaining  coparceners continued to be joint a question was considered relation to a coparcenary consisting of only two  members.   We are in the present case concerned  with  the simple case of the nature.  The coparcenary consisted of the members viz.,  father Narayanrao and son Shridhar,  Shridhar died  after the coming into force  of the Act leaving him surviving his heirs under the Act his mother Laxmibai and  his widow  Shantabai.   Then  undoubtedly in view  of the provisions of Section 6  Shridhar’s share has to be separated and it devolved by intestate succession as he did not leave  any will.   Such  severance is effected by the  language of the proviso to Section 6 itself  and it is unnecessary for  that purpose even to refer to the provisions of Explanation I thereto.  If Shridhar’s share  is severed, then automatically  having regard to the provisions prevailing under Shastric Hindu law upon a  partition taking place between father and  son the mothers right to claim a share  equal to that of  a son  automatically  springs up.  That being the position, immediately before Shridhar’s death a  notional partition having taken place  in view of the provisions  of Section 6.   Laxmibai as a result  of that partition, will  be entitled to 1\/3rd share in the joint family property.   The remaining 2\/3rd  share will be divided as under: 1\/3rd share will be divided as under: 1\/3rd  will  go to  Narayanrao and 1\/3rd  coming to  the share of Shridhar will devolve by intestate succession as provided under the  Act.  Thus Laxmibai as a result of this  partition gets 1\/3rd  share.  She  is also an  heir of Shridhar and as an heir of Shridhar she is entitled to half the interest in  the share of Shridhar.   So  in addition to  1\/3rd  share obtained by her on a partition she will be entitled to 1\/6th  share as  such heir  of Shridhar.  The total interest  thus obtained by Laxmibai in view of the  provisions of Section 6 and  the provisions prevailing under pure Hindu Law  will be  1\/2 .   Upon  the death of Laxmibai in 1957 half the interest in the share left by  Laxmibai will go to her husband Narauyanrao, and the remaining half will go to her daughter  Sushilabai, the plaintiff.  Thus,  in our view,  having regard to the facts and circumstances of the present case  Shushilabai, the plaintiff is entitled to 1\/4th  share in the property and she is  entitled to have a partition and separate possession thereof  secured to her.\n<\/p>\n
  30. Question  No. 1  referred  to us  is divided in two parts.   The first  part of question  No. 1 relates to the scope of the  fiction in the Explanation of Section 6 of the Act and the question requires us to  answer whether the scope of the fictions  as wide as was held in Rangubhai v. Laxman, .   As  we  have  pointed out in our judgment, it is not necessary for the purpose of this case to express any opinion on this part of the legal fiction.  The whole of our judgments based upon assumption that the fiction should  be carried to a narrow extent only with a view to implement the purpose for which it was introduced.    Proceeding on that footing having  regard to the facts of this case as there were only  two copartners and one of them died, then if any person other than the coparceners is entitled to a share as a result of severance of the share of the deceased coparcener, the  share of such other person will become fixed.   Thus,  on  the facts   of this case, upon a partition  taking place immediately before  the death  of Shridhar, Laxmibai  became entitled to  1\/3rd interest in the joint family property.  So far as question    No. 2 is  concerned, Laxmibai has obtained 1\/3rd share in  the joint family property as a results of  partition and she is also in addition thereto obtained 1\/6th share in the joint family  property as inhere of Shridhar.  Thus she  is entitled to 1\/2  share in the joint family property and upon her death this  1\/2   share is equally divided between her husband Narayanarao and her daughter, the  plaintiff.   Thus the plaintiff on the facts of the present case is entitled to 1\/4th  share in the suit property.\n<\/p>\n
  31. Having regard  to the questions referred to us plaintiff Shushilabai is  entitled to 1\/4th share  in the property in which she is entitled to claim a share.  If  the rears other question s if any to be decided in this appeal, the same will be considered by a Division Bench  in the light  of the quantum of share  of Shushilabai, the plaintiff, determined by us in this case and appropriate directions will be given and decree will be passed while disposing of the appeal.\n<\/p>\n
  32.  The question of costs  of hearing of this appeal will be dealt with by the Division Bench while  disposing of the appeal.\n<\/p>\n
 33. Order accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sushilabai Ramchandra Kulkarni vs Narayanrao Gopalrao Deshpande … on 22 August, 1974 Equivalent citations: AIR 1975 Bom 257, (1975) 77 BOMLR 558 Author: Kantawala Bench: Kantawala, Tulzpurkar, Dharmadhikari JUDGMENT Kantawala, C.J. 1. This Division Bench of this Court has referred to the Full bench the following two questions for determination: (1) Is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-18032","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSushilabai Ramchandra Kulkarni vs Narayanrao Gopalrao Deshpande ... on 22 August, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sushilabai-ramchandra-kulkarni-vs-narayanrao-gopalrao-deshpande-on-22-august-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sushilabai Ramchandra Kulkarni vs Narayanrao Gopalrao Deshpande ... on 22 August, 1974 - 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