Appeal No 182 828 of 1975
Appeal by Special Leave from the Judgment and Order dated the 19th March 1975 of the Bombay High Court in First Appeal No 524 of 1966 from original decree
R B Datar for the Appellant
V N Ganpule and Mrs V D Khanna for the respondent
The Judgment of the Court was delivered by CHANDRACHUD CJ
It will be easier with the help of the following pedigree to understand the point involved in this appeal Khandappa Sangappa Magdum Hirabai Plaintiff Gurupad Biyawwa Bhagirathibai Dhundubai Shivapad Deft 1 Deft 3 Deft
41 Deft 5 Deft 2 Khandappa died on June 27 1960 leaving him surviving his wife Hirabai who is the plaintiff two sons Gurupad and Shivapad who are defendants 1 and 2 respectively and three daughters defendants 3 to 5
On November 6  1962 Hirabai filed special civil suit No 26 of 1963 in the court of the Joint Civil Judge Senior Division Sangli for partition and separate possession of a 724th share in two houses a land two shops avoid movables on the basis that these properties belonged to the joint family consisting of her husband herself and their two sons
If a partition were to take place during Khandappa s lifetime between himself and his two sons the plaintiff would have got 14th share in the joint family properties the other three getting 14th share each
Khandappa s 14th share would devolve upon his death on six sharers the plaintiff and her five children each having a 124th share therein
Adding 14th and 124th the plaintiff claims a 724th share in the joint family properties
That in short is the plaintiffs case
Defendants 2 to 5 admitted the plaintiff s claim the suit having H been contested by defendant 1 Gurupad only
He contended that the suit properties did not belong to the joint family that they were Khandappa s self requisitions and that on the date of Khandappa s 764 death in 1960 there was no joint family in existence
He alleged that Khandappa had effected a partition of the suit properties between himself and his two sons in December 1952 and December 1954 and that by a family arrangement dated March 31 1955 he bad given directions for disposal of the share which was reserved by him for himself in the earlier partitions
There was therefore no question of a fresh partition
That in short is the case of defendant 1
The trial court by its judgment dated July 13 1965 rejected defendant 1 s case that the properties were Khandappa s self acquisitions and that he had partitioned them during his lifetime
Upon that finding the plaintiff
became indisputably entitled to a share in the joint family properties but following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda1 the learned trial judge limited that share to 124th refusing to add 14th and 124th together
As against that decree defendant 1 filed first appeal No 524 of 1966 in the Bombay High Court while the plaintiff filed cross objections
By a judgment dated March 19 1975 a Division Bench of the High Court dismissed defendant 1 s appeal and allowed the plaintiff s cross objections by holding that the suit properties belonged to the joint family that there was no prior partition and that the plaintiff is entitled to a 724th share
Defendant I has filed this appeal against the High Court s judgment by special leave
Another Division Bench of the Bombay High Court in Rangubai Lalji vs Laxman Lalji2 had already reconsidered and dissented from earlier Division Bench judgment in Shiramabai Bhimgonda1 In these two cases the judgment of the Bench was delivered by the same learned Judge Patel J
On further consideration the learned Judge felt that Shiramabai1 was not fully argued and was incorrectly decided and that on a true view of law the widow s share must be ascertained by adding the share to which she is entitled at a notional partition during her husband s life time and the share which she would get in her husband s interest upon his death
In the judgment under appeal the High Court has based itself on the judgment in Rangubai Lalji2 endorsing indirectly the view that Shiramabai1 was incorrectly decided
Since the view of the High
Court that the suit properties belonged to the joint family and that there was no prior partition is well founded and is not seriously disputed the decision of this appeal rests on the interpretation of Explanation 1 to section 6 of the Hindu Succession Act 30 of 1956
That section reads thus 6
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 1196366Bom
LR351
2 765 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 a 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 I 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
 The Hindu Succession Act came into force on June 17 1956 Khandappa having died after the commencement of that Act to wit in 1960 and since he had at the time of his death an interest in Mitakshara coparcenary property the pre conditions of section 6 are satisfied and that section is squarely attracted
By the application of the normal rule prescribed by that section Khandappa s interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act
But since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters the proviso to section 6 comes into play and the normal rule is excluded
Khandappa s interest in the coparcenary property would therefore devolve according to the proviso by intestate succession under the Act and not by survivorshop
Testamentary successive is out of question as the deceased had not made a testamentary disposition though under the explanation to section 30 of the Act the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition
There is thus no dispute that the normal rule provided for by section 6 does not apply that the proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Explanation 1 of section 6
The interpretation of that Explanation is the subject matter of acute controversy between the parties
Before considering the implications of Explanation 1 it is necessary to remember that what section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshare coparcenary property at 766 the time of his death
Since Explanation 1 is intended to be explanatory of the provisions contained in the section what the Explanation provides has to be correlated to the subject matter which the section itself deals with
In the instant case the plaintiff s suit based as it is on the provisions of section 6 is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property
Two things become necessary to determine for the purpose of giving relief to the plaintiff
One her share in her husband s share and two her husband s own share in the coparcenary property
The proviso to section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased
The plaintiff s share by the application of the proviso has to be determined according to the terms of the testamentary instrument if any made by the deceased and since there is none in the instant case by the application of the rules of intestate succession contained in sections 8 9 and 10 of the Hindu Succession Act
The deceased Khandappa died leaving behind him two sons three daughters and a widow
The son daughter and a widow are mentioned as heirs in class I of the Schedule and therefore by reason of the provisions of section 8a read with the 1st clause of section 9 they take simultaneously and to the exclusion of other heirs
As between them the two sons the three daughters and the widow will take equally each having one share in the deceased s property under section 10 read with Rules 1 and 2 of that section
Thus whatever be the share of the deceased in the coparcenary property since there are six sharers in that property each having an equal share the plaintiff s share therein will be 16th
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 16th 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 14th share in the coparcenary property on the hypothesis of a partition between himself and his sons Two things are thus clears  One that in a partition of the coparcenary property Khandappa would have obtained a 14th share and 767 two that the share of the plaintiff in the 14th share is 16th that is to say 124th
So far there is no difficulty
The question which poses a somewhat difficult problem is whether the plaintiff s share in the coparcenary property is only 124th or whether it is 14th plus 124th that is to say 724th
The learned trial Judge relying upon the decision in Shiramabai which was later overruled by the Bombay High Court accepted the former contention while the High Court accepted the latter
The question is which of these two views is to be preferred
We see no justification for limiting the plaintiff s share to 124th by ignoring the 14th share which she would have obtained had there been a partition during her husband s life time between him and his two sons
We think that in overlooking that 14th share one unwittingly permits one s imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff s husband and his sons
Whether a partition had actually taken place between the plaintiff s husband and his sons is beside the point for the purposes of Explanation 1
That Explanation compels the assumption of a fiction that in fact a partition of the property had taken place the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share
The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by section 18A9 b of the Indian Income tax Act 1922 was given by this Court in Commissioner of Income tax Delhi vs section Teja Singh1
It was held in that case that the fiction that the failure to send an estimate of tax on income under section 18A3 is to be deemed to be a failure to send a return necessarily involves the fiction that a notice had been issued to the assessee under section 22 and that he had failed to comply with it
In an important aspect the case before us is stronger in the matter of working out the fiction because in Teja Singh s case a missing step had to be supplied which was not provided for by section 18A9 If b namely the issuance of a notice under section 22 and the failure to comply with that notice
Section 18A9 b stopped at creating the fiction that when a person fails to send an estimate of tax on his income under section 18A3 he shall be deemed to have failed to furnish a return of his income
The section did not provide further that in the circumstances therein stated a notice under section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with
These latter assumptions in regard to the issuance of the notice under section 22 and its non compliance bad to be made for the purpose of giving due and full effect to the fiction created by section 18A9 b
In our case it is not necessary for the purposes of working out the fiction to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co Ltd vs Finsbury Borough Council1 He said if you are bidden to treat an imaginary state of affairs as real you must also imagine as real the consequences and 1 1959 Stipp
1 SCR 394 2 768 incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it and if the statute says that you must imagine a certain state of affairs it cannot be interpreted to mean 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
In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things and as the very first step to ascertain the share of the deceased in the coparcenary property
For by doing that alone can one determine the extent of the claimant s share
Explanation 1 to section 6 resorts to the simple expedient undoubtedly fictional 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 that property had taken place immediately before his death
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 share 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
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one s imagination to boggle
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 bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion
It has to be treated and accepted as a concrete reality something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition
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 provides by section 141 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
We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai Lalji vs Laxman Lalji supra in which Patel J very fairly pronounced his own earlier judgment to the contrary in Shiramabai Bhimgonda vs Kalgonda supra as incorrect
Recently a Full Bench of that High Court in Sushilabai Ramachandra Kulkarni vs Narayanrao Gopalrao Deshpande  Ors1 the Gujarat High Court in Vidyaben vs Jagdishchandra N Bhatt2 and the High Court of Orissa in Ananda vs Haribandhu3 have taken the same view
The Full Bench of the Bombay High Court in Sushilabai supra has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C J who has spoken for the Bench
For these reasons we confirm the judgment of the High Court and dismiss the appeal with costs
SR Appeal dismissed
1 AIR 1975 Bombay 257
2 AIR 1974 Guj
3 AIR 1967 Orissa 194


Summary:
Khandappa Sangappa Magdum died on June 27 1960 leaving behind his widow Hirabai two sons Gurupad and Shivapad and three daughters
On November 6 1952 Hirabai filed special civil suit No 2653 for partition and separate possession of a 724 share in two houses a land two shops and mov ables on the basis that these properties belonged to the joint family consisting of her husband and their two sons
The case of the plaintiff was that if a partition were to take place during Khandappa s life time between himself and his two sons the plaintiff would have got a 14th share each on the death of Khandappa Her further case was that Khandappa s 14th share could devolve upon his death on six sharers entitling her to 124th share besides
The trial Court found that the suit properties belonged to the joint family and that there was no prior partition
Following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda  limited her share to only 124th and refused to add 14th and 124th together
Dismissing the defendant s appeal 52466 and allowing the cross objections of the plaintiff the Bombay High Court by its judgment dated March 19 1975 following 68 Rom
LR 74 which overruled  held that the plaintiff wag entitled to 724th share
Dismissing the appeal by special leave the Court
HELD  1 a What Section 6 of the Hindu Succession Act
1956 deals with is the devolution of the interest which a male Hindu has in a Mitakshara property at the time of his death
The proviso to Section 6 contains a formula for fixing the share of the claimants while Explanation I contains a formula for deducing the share of the deceased
765 H 766 A B b Explanation I which contains the formula for determining the share of the deceased creates a fiction by providing 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
Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Explanation 1
That Explanation compels the assumption of a fiction that in fact a partition of the property had taken place the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share
The fiction created by Explanation I has to be given its due and full effect
766 E F 767 C D Commissioner of Income Tax Delhi vs section Teja Singh  applied
East End Dwellings Co Ltd vs Finsbury Borough Council 132 quoted with approval 2
a In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things and as they Very first step to ascertain the share of the deceased in the coparcenary property  by dong that alone can one determine the extent of the claimant s share
Explanation 1 to section 6 resorts to the simple expedient undoubtedly factional that
14 315SCI78 762 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 that property had taken place immediately before his death
What is therefore required to be assumed is that a partition had in fact taken place between the deemed 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 share 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
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one s imagination to boggle
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 life time of the deceased
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion
it has to be treated and accepted as a concrete reality something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition
768 B G b Ibis interpretation furthers the legislative intent in regard to the enlargement of the share of female heirs qualitatively and quantatively
Even assuming that two interpretations of Explanation 1 are reasonably possible Courts 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
By restricting the operation of the fiction created by Explana tion I in the manner suggested by the appellant Courts shall be taking a retrograde step putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of pro perty
768 G 769 A B Rangubhai Lalji vs Laxman Lalji 68 Bom LR 74 Sushilabai Ramachandra Kulkarni v Narayanarao Gopalrao Deshpande and Ors AIR 1975 Bom
257 Vidyaben vs Jagadishchandra N Bhatt AIR 1974 Guj 23 Ananda vs Haribandu AIR 1967 Orissa 194 approved
In the instant case a There is no justification for limiting the plaintiff s share to 124th by ignoring the 14th share which she would have obtained had there been a partition during her husband s life time between him and his two sons
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 14th share in the coparcenary property on the hypothesis of a partition between himself and his sons
766 G H 767 B C b By the application of the normal rule prescribed by Section 6 of the  Khandappa s interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act
But since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters he proviso to section 6 comes into play and the normal rule is excluded
Khandappa s interest in the coparcenary property would therefore devolve according to the proviso by intestate succession under the Act and not by survivorship
Testamentary succession is out of question as the deceased had not made a testamentary disposition though under the explanation to section 763 30 of the Act the interest of a male Hindu in Mitakshara coparcenary
property is capable of being disposed of by a will or other testamentary disposition
765 E G c The plaintiff s share as determined by the application of the rules of intestate succession contained in Sections 8 9 and 10 of the Hindu Succession 
Act will be 16th
The deceased Khandappa died leaving behind him two sons three daughters and a widow
The son daughter
and widow are mentioned as heirs in class I of the Schedule and therefore by reason of the provisions of section 8a read with the 1st clause of section 9 they take simultaneously and to the exclusion of other heirs
As between them the two son s the three daughters and the widow will take equally
each having one share in the deceased s property under section 10 read with Rules 1 and 2 of that section
766 C D