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CASE NO.: Appeal (civil)  4171 of 2006

PETITIONER: Anar Devi and Ors

RESPONDENT: Parmeshwari Devi and Ors

DATE OF JUDGMENT: 18/09/2006

BENCH: B.N. AGRAWAL & P.P. NAOLEKAR

JUDGMENT: JUDGMENT O R D E R

(ARISING OUT OF S.L.P. (C) NO. 15677 OF 2004) WITH CIVIL APPEAL NO. 4172 OF 2006 (ARISING OUT OF S.L.P. (C) NO. 19015 OF 2004)

C.A. No. 4171 of 2006 @ S.L.P. (C) No. 15677of 2004:         Heard learned counsel for the parties.         Leave granted.         A suit was filed before the Sub-Divisional Officer by the respondents for  partition of suit properties claiming two-third share therein. In the plaint, it was  plaintiffs’ clear-cut case that the partition suit was filed for partition of notional share  of  Nagar Mal. Undisputedly, the suit properties were ancestral one in the hands of Nagar  Mal, who adopted one Nemi Chand as his son, and after adoption both of them  constituted a Mitakshara coparcenary under Hindu Law. Further it was undisputed  that Nagar Mal died  in the year 1989 intestate in the state of jointness with his  adopted son leaving behind him, his adopted son Nemi Chand and the plaintiffs, who  were his two daughters. The trial court by misconstruing the provisions of law, passed an ex-parte   decree for partition of one-third share of each one of the plaintiffs instead of one-sixth  share. Against the decree of trial Court, when the matter was taken in appeal, the  appellate authority reversed the same after recording a finding that the property was  ancestral one, but remitted the matter as the decree was passed ex-parte. Against the  order of remand, the matter was taken to the Board of Revenue, which reversed the  order of remand and restored the decree passed by trial Court after recording a  finding that each of the plaintiffs was entitled to one-third share in the suit properties.  The said judgment has been confirmed in  writ by a learned single Judge of the High  Court and the same has been upheld in appeal by the Division Bench. Hence, this  appeal by special leave. In order to appreciate the point involved in the present case it would be useful  to refer to the provisions of Section 6 of the Hindu Succession Act, 1956 (in short "the  Act"), as it stood prior to its amendment by Hindu Succession (Amendment) Act,  2005, and the same run thus:  "S. 6 - Devolution of interest in coparcenary property \026 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 surviving him 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 Mitakshara coparcenary  property shall devolve by testamentary or intestate succession, as  the case may be, under this Act and not by survivorship.

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Explanation 1. \026 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. \026 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."

Reference in this connection may be made to a passage from the most  authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page  250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author  stated that "Explanation I defines the expression ’the interest of the deceased in  Mitakshara coparcenary property’ and incorporates into the subject the concept of a  notional partition. It is essential to note that this notional partition is for the purpose  of  enabling succession to and computation of an interest, which was otherwise liable to  devolve by survivorship and for the ascertainment of the shares in that interest of the  relatives mentioned 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  undisturbed and the coparcenary can continue without disruption. A statutory fiction  which treats an imaginary state of affairs as real requires that the consequences and  incidents of the putative state of affairs must flow from or accompany it as if the  putative state of affairs had in fact existed and effect must be given to the inevitable  corollaries of that state of affairs."  The learned author further stated that "the operation of the notional partition  and its inevitable corollaries and incidents is to be only for the purposes of this section  namely, devolution of interest of the deceased in coparcenary property and would not  bring about total disruption of the coparcenary as if there had in fact been a regular  partition and severance of status among all the surviving coparceners." According to the learned author, at page 253, the undivided interest "of the  deceased coparcener for the purpose of giving effect to the rule laid down in the  proviso, as already pointed out, is to be ascertained on the footing of a notional  partition as of the date of his death. The determination of that share must depend on  the number of persons who would have been entitled to a share in the coparcenary  property if a partition had in fact taken place immediately before his death and such  person would have to be ascertained according to the law of joint family and partition.  The rules of Hindu law on the subject in force at the time of the death of the  coparcener must, therefore, govern the question of ascertainment of the persons who  would have been entitled to a share on the notional partition." In the case of State of Bombay  vs. Pandurang Vinayak Chaphalkar &  Others; 1953 (4) SCR 773,  this Court,  after referring to, with  approval,  the oft- quoted  dictum of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough  Council (1952) Appeal Cases 109, has laid down the manner in which statutory  fiction shall be construed and at pages 778 and 779 observed thus:-         "When a statute enacts that something shall be deemed to have  been done, which in fact and truth was not done, the court is  entitled and bound to ascertain for what purposes and between  what persons the statutory fiction is to be resorted to and full effect  must be given to the statutory fiction and it should be carried to its  logical conclusion. [Vide Lord Justice James in Ex parte Walton : In  re Levy [17 Ch. D. 746, at p. 756]]. If the purpose of the statutory  fiction mentioned in section 15 is kept in view, then it follows that  the purpose of that fiction would be completely defeated if the  notification was construed in the literal manner in which it has been  construed by the High Court. In East End Dwellings Co. Ltd. v.  Finsbury Borough Council [[1952] A.C. 109], Lord Asquith while  dealing with the provisions of the Town and County Planning Act,  1947, made reference to the same principle and observed as  follows :-

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"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  accompanied it. ....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 your  imagination to boggle when it comes to the inevitable  corollaries of that state of affairs."  The corollary thus of declaring the provisions of section 25 of the  Bombay General Clauses Act applicable to the repeal of the  ordinance and of deeming that ordinance an enactment is that  wherever the word "ordinance" occurs in the notification, that word  has to be read as an enactment."

In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa  Magdum, AIR 1978 SC 1239 at page 1243 it has been laid down by this Court as  under: "What is therefore required to be assumed is that a partition had in  fact taken place between the deceased and his coparceners  immediately before his death. That assumption, once made, is  irrevocable. In other words, the assumption having been made  once for the purpose of ascertaining the shares of the deceased in  the coparcenary property, one cannot go back on that assumption  and ascertain the share of the heirs without reference to it. The  assumption which the statute requires to be made that a partition  had in fact taken place must permeate the entire process of  ascertainment of the ultimate share of the heirs, through all its  stages\005\005 All the consequences which flow from a real partition  have to be logically worked out, which means that the share of the  heirs must be ascertained on the basis that they had separated  from one another and had received a share in the partition which  had taken place during the lifetime of the deceased."

Thus we hold that according to Section 6 of the Act when a coparcener dies  leaving behind any female relative specified in Class I of the Schedule to the Act or  male relative specified in that class claiming through such female relative, his  undivided interest in the Mitakshara coparcenary property would not devolve upon the  surviving coparcener, by survivorship but upon his heirs by intestate succession.  Explanation 1 to Section 6 of the Act provides a mechanism under which undivided  interest of a deceased coparcener can be ascertained and, i.e., that 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. It means for the purposes of finding out undivided interest of a deceased  coparcener, a notional partition has to be assumed immediately before his death and  the same shall devolve upon his heirs by succession which would obviously include  the surviving coparcener who, apart from the devolution of the undivided interest of  the deceased upon him by succession, would also be entitled to claim his undivided  interest in the coparcenary property which he could have got in notional partition.  In the case on hand, notional partition  of the suit properties between Nagarmal  and his adopted son Nemi Chand has to be assumed immediately before the death of  Nagarmal and that being so Nagar Mal’s undivided interest in the suit property, which  was half, devolved on his death upon his three children, i.e.,  the adopted son Nemi  Chand and the two daughters who are plaintiffs in equal proportion.  Nemi Chand, the  adopted son, would get half of the entire property which right he acquired  on the date  of adoption and  one third  of the remaining half which devolved upon him  by  succession as stated above. This being the position, each of the two plaintiffs was not  entitled to one-third share in the suit property, but one-sixth  and the remaining  properties would go to the adopted son, Nemi Chand.          Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one  in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and  from the date of adoption, a coparcenary was constituted between the father and the  adopted son. Upon the death of Nagar Mal, the property being ancestral, the half  

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undivided interest of Nagar Mal therein  devolved by rule of succession upon his three  heirs, including Nemi Chand. This being the position each of the daughters would be  entitled to one-sixth share in the suit properties and the remaining would go to the  heirs of Nemi Chand, since deceased.         Accordingly, the appeal is allowed, impugned judgments are set aside and suit  for partition is decreed to the extent of one-sixth share of each of the two plaintiffs and    the defendants, i.e., heirs of  Nemi Chand shall be entitled to the remaining suit  properties. Let a preliminary decree be, accordingly, drawn up and steps for  preparation of final decree be taken by appointment of a pleader commissioner. No costs. C.A. No. 4172 of 2006 @ S.L.P. (C) No. 19015 of 2004:         Heard learned counsel for the parties.         Leave granted.         In view of the order in C.A. No. 4171 of 2006 above,  the appeal is allowed, the  impugned judgment is set aside and writ petition filed before the High Court is  dismissed.         No costs.