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Ramnath Sao (Decd) Thru His Lrs & … vs Goberdhan Sao (Decd) Through Lrs. … on 6 April, 2017

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

|Fuchan Mahto – died 1940 |
|Wife Puniya Devi – died 1967 |
|! |
|———————————— |
|! ! |
| |Mithu Sao (son) |Ugni Devi (daughter) | |
| |(died 1961) |(died 1995) | |
| |! |! | |
| |! |–——————————- | |
| |! |! ! ! | |
| |! | | |
| |! | | |
| |! | | |
| |! | | |
| | |Jagar- |Parasnath |Dharamnath | |
| | |nath |(Appellants) | | |
| | | | | | |
| | ! | | |
| |–—————————— | | |
| |! ! | | |
| 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 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.

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 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 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
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. 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 Venamma[1]. 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 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, Bangalore
[2], 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 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 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:

|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 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
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]

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__ |= |_1__ |
| |8×9 | |72 |
|Puniya Devi |_1__ |= |_1__ |
| |8×9 | |72 |
|Ramnath |_1__ |= |_1__ |
| |8×9 | |72 |
|Kashinath |_1__ |= |_1__ |
| |8×9 | |72 |
|Goverdhan |_1__ |= |_1__ |
| |8×9 | |72 |
|Jagdish |_1__ |= |_1__ |
| |8×9 | |72 |
|Baldeo |_1__ |= |_1__ |
| |8×9 | |72 |
|Buchwa Devi |_1__ |= |_1__ |
| |8×9 | |72 |
|Sarita |_1__ |= |_1__ |
| |8×9 | |72 |

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_    |x |_10_   |=  |_10_  |
| |8 | |144 | |1152 |
|Ramnath |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Kashinath |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Goverdhan |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Jagdish |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Baldeo |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Buchwa Devi |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |
|Sarita |_1_ |x |_10_ |= |_10_ |
| |8 | |144 | |1152 |

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

|Bilaso Devi |_1_  |+|_1__ |+    |_10_ |= |14.76%  |
| |8 | |72 | |1152 | | |
|Ramnath |_1_ |+|_1__ |+ |_10_ |= |14.76% |
| |8 | |72 | |1152 | | |
|Kashinath |_1_ |+|_1__ |+ |_10_ |= |14.76% |
| |8 | |72 | |1152 | | |
|Goverdhan |_1_ |+|_1__ |+ |_10_ |= |14.76% |
| |8 | |72 | |1152 | | |
|Jagdish |_1_ |+|_1__ |+ |_10_ |= |14.76% |
| |8 | |72 | |1152 | | |
|Baldeo |_1_ |+|_1__ |+ |_10_ |= |14.76% |
| |8 | |72 | |1152 | | |
|Buchwa Devi |_0_ |+|_1__ |+ |_10_ |= |2.25% |
| |0 | |72 | |1152 | | |
|Sarita |_0_ |+|_1__ |+ |_10_ |= |2.25% |
| |0 | |72 | |1152 | | |
|Ugni Devi |_10_ | | | | |= |6.94% |
| |144 | | | | | | |

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 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.

-----------------------

[1] (1965) 1 SCR 26
[2] (1966) 3 SCR 224
[3] (1978) 3 SCC 383

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