Ram Nath Sao @ Ram Nath Sahu Since Deceased Thr. L.Rs.& Ors; v. Goberdhan Sao Since Deceased Thr. Lrs. & Ors.

RANJAN GOGOi, J. I. 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. Al the outset, the following genealogical table is being set ~ut 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 Mah1o~died 1940 Wife Puniya Devi:.. died 1967 -------------------------· I 1. 1.

Mithu Sao (son) Ugni Devi (daughter)

(died 1961) (died 1995) ! ---------------------- ! ! Jagar-· Parasnath Dharamnath nath <Appellants) , -------------------------- I !

Temni (1 11 wife) Bilaso Devi (2"" Wife) ·--------------------- ! --------------------. I

I - I I I

Ra:mnath Kashinath · Duchwa ·. Govardhan Jagdish Datdeo Sarib.·· CAppellantsl · fRespondentsl

¶3The case of the respondents pl~intiffs 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 Sa9 had two wives, namely, Temiii (I• wife) and Bilaso Devi (2"' wife). At, the time of the filing of the suit for partition Temni (I" wife) was no/more,, The defendants in the suit Ramnath, Kashinath Buchwa are the sons and daughter of Mithu Sao and Temni (I• wife) whereas the plaintiffs Govardhan, Jagdish, Baldeo and Sarita are the sons and daughter ofMithu Sao and Bilaso Devi (2"' wife), who is a co-plaintiff.

¶4According to the plaintiffs, they along with the defendants constituted a joint Hindu Mitakshra familywhich 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.

¶5The defendants contested the suit, inter alia, 011 the ground that lhere 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 Tenmi 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 ofKhata 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.

¶6The 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 I to 8 of village Labaga in Schedule 'C'; items I and 2 of village Rasda in Schedule 'C'; and items I 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 \,_ 37.112 paise in tl1.e Schedule 'B' property and items I to 8 of village ·A Labaga; items. (and 2 of village Rasda; and items I to 8 of village Hafuwa in Schedule 'C' properties. By the said decree which has been atlirmed 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.

¶7This Court while issuing notice in the present appeal confined the area of scrutiny to the question of"al location of sl~ares as regards to the properties found to bejointfamily 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 ofreopening 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 fot the parties.

¶9Fuchan 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 iaw 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, subjectto the provisions of sub-section (3), have in the property the same interest as he himself had;"

¶10Under Section 3(2) of the 1937 Act, on the death ofFuchan 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 LakshmiPer11111a/l11 vs. Pot/I Krishna V<?namma1• The relevant paragraph in the said judgment to the above effect is extracted below:

1(1965)1 SCR26

"According to the theory underlying the Hindu la~ihe \~id ow of a deceased Hindu i~ 1 his surviving half and, therefore, as long as I' she is alive he must be def'med 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 liyed on the date on which she claimed partition."

¶11On the date of death offuchan 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 tlie joint family. The above view would find support from the decision of this Court in Goirfi Buddanna v. Co111111issioner of/11co111e Tax. Mvsore. Bangalore', 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 ofBuddappa 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 iherefrom 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 ofFuchan Mahto with Mithu Sao as the sole coparcener and the joint family properties continued to be!on'g to the family and furthermore . Puniya Devi continued to have a share in the prop.erty.

13 .At this stage, tl1e provisions of Section 6 of the Hindu Succession Act, I 956 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, havingat the

, , (RANJAN GOGOi, J.]

•• tillJe of his death an interest in a Mitakshara coparcenary property, ~ 'his interest in the property shall devolve by survivorship upon the · surviving members of the coparcenary and not in accordance with this act:.

Provided that,' if the deceased had left him surviving a female relative specified in class-I of the Schedule or a male relative · specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property :~shall devolve by testamentary or intestate succession, as the case

rnay be, under this Act and not by survivors.hip.

. Explanation.!-' 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.-Nothingcontained 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."·

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

MithuSao 118 Bilaso Devi (wife) 1/8 Puniya Devl(mother) 1/8 Ramnath (son) 118 Kashinath (son) l/S Goverdhan (son) 118 · · Jagdish (son) 118 · Baldeo (son) 1/8

Insofar as Bilso Devi, ' the wife of Mithu Sao is concerned, she would be entitled to I/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· Guru pad Khandapva Magdum versus Hirabai Khandappa Magdum and others'. 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 I/6th interest in that share. Explanation I which contains the formula for determiniiig 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 tbe 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 l of tl1e 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 Mu Ila'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 I/4th share in ihe 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 1 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 df the Hindu Women's Rights.to Property Act, 1937, speaking broadly, !1 • (1978) 3 sec 383

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 ExpJanation 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 Exp \anation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from wh.ich the Hindu . women have suffered over the years."

[underlining is ours] 15. Next aspect of the case is with regard to the I/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 ofMithu Sao in the joint family property (\/8th) would devolve by intestate succession, in the absence ofa will, in the following manner. 8x9 72 Puniya Devi I _I_ 8x9 72 8x9 72 8x9 72 8x9 72 J agd ish I = -12 I -g,9 B aldeo I _I_ 8x9 72 8x9 72

¶16Thus after 1961 Puniya Devi ~eing the widow of Fuchan Mah to had I/8th plus 1172lh share in the joint family property, nainely, I 0172• share. Puniya Devi died in the year I 967 leaving behind her daughter Ugni Devi and the children of her predeceased son Mithu Sao. Ugni Devi will be entitled to receive ~ne-half share of Puniya Devi i.e. halfof 10/72'" share i.e. 101144"' share .. The remaining 101144"' share that wouid go to the branch ofMithu Sao will have to be divided amongst 8 heirs ofMithu Sao, namely, the widow and the'seven children. Thus, the aforesaid I 01144"' share would devolve in the following nianner.'

Bilaso Devi I x ~10_ = 10 ·c -8-144 . T152 8 144 T152 Kashinath ..L .- x -1.!L. = -1.!L. 8 144. 1152 Goverdhan ..L x -1.!L. = -1.!L. 8 144 1152 . Jagdish ..L x -1.!L. = -1.!L. 8 144 ,, 1152 Baldeo I ' x •·/ . 10 = 10 -8-144-. .·. T152 Buchwa Devi I x _10_ = _10_ -8-144 1152 Sarita ..L x -1.!L. = -1.!L. 8 144 1152 ·p

I 7. Consequently the share of each of the parties would be as follows:

8 72 1152 8 72 I 152 8 72 I 152 8 .72 1152

· ·;; [RANJAN GOGOi, J.]

~ 8 72 1152 8 72 1152 0 72 1.152 0 72 1152 UgniDevi .lQ_ = 6.94% 144 Thus cakulated 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 of37.5% as ordered by the courts below.

¶19The 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.

;>evika Gujral Appeal allowed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. i 110 '- of2006: · · ' ·

From the Judgment and Order dated 26.02.2003 of the High Court of Jharkhand at Ranchi in Appeal from Original Decree No. 307 of 1989 ..

Gaurav Agrawal, Abhikalp Pratap Singh, Prashant Kumar, Advs. for the Appellants. '

Arup Banerjee, M. K. Verma, Braj Ki shore Mishra, Advs. for the ·Respondents.

· ·The Judgment of the Court was delivered by