R.S.A No.1985 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : August 24, 2009 1. R.S.A No.1985 of 2008 (O&M) 2. R.S.A No.1986 of 2008 (O&M) Geja Singh vs Jagga Singh and others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. T.N.Gupta, Advocate for the appellant. Mr. G.S.Brar, Advocate for respondents No.1 and 2. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of RSA Nos.1985 and 1986 of 2008 as common questions of law and fact are involved therein. For the sake of convenience, facts are being extracted from RSA No.1985 of 2008. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiffs/respondents No.1 and 2 for declaration that they are joint owners in possession of 2/12 shares each out of the land recorded in the name of common ancestor Chanan Singh in the revenue estate of village Kokri Phoola Singh, Tehsil Moga, District Faridkot or to any other share which they are found entitled to. The following questions have been proposed :- R.S.A No.1985 of 2008 ::2:: “ a) Whether there is a miscarriage of justice on account of non-framing of essential issues ? b) Whether the appellant's application under order 41 Rule 27 CPC has been declined on illegal grounds ? c) Whether the testimony of Megha Singh DW has been discarded by the trial Court and the appellate Court in violation of Section 138 read with Section 33 of the Evidence Act ? d) Whether the judgment and decree of the appellate Court upholding the verdict of the trial Court is perverse? e) Whether coparcenary property can be partitioned by oral family settlement ? f) Whether the prohibition of Section 4 of the Benami Transactions (Prohibition) Act, 1988 would apply where the person in whose name the property is held is a coparcener in a Hindu Undivided Family ? g) Whether the Court can declare a coparcener to be the owner of a defined share in coparcenary property before its partition ? h) Whether the plaintiffs' shares in Chanan Singh coparcener's interest devolving on them under proviso to Section 6 of the Hindu Succession Act have been correctly worked out ?” Questions No. (b), (d), (e) and (f) are questions of fact relating to the allegations of the appellant (one of the contesting defendants in the suit) that in fact a family partition had taken place between the parties and R.S.A No.1985 of 2008 ::3:: the entire disputed property had fallen to the share of Geja Singh-defendant No.3. Learned counsel for the appellant took me through the findings as well as the evidence to argue that the evidence originally led and the evidence proposed to be led by way of the application under Order 41 Rule 27 of the CPC clearly proved that in fact family partition had taken place. He further argued that the findings of the learned lower appellate Court regarding non-admissibility of the evidence of Megha Singh was incorrect since he had been duly cross-examined by counsel for the contesting defendants. He further argued that his application under Order 41 Rule 27 of the CPC placing on record sale deed of property situated in village Kokri Kalan, mortgage deed of land in village Kokri Phoola Singh and consequent sale deeds whereby land was purchased in the names of respondent No.1-Jagga Singh and the third brother Bachhittar Singh clearly evidenced the plea of family partition and that the learned Courts below should have accepted this evidence since it was material for coming to a just decision of this case. In my opinion, the learned lower appellate Court rightly considered the sale deeds while holding that partition had to be proved independently and could not be said to have been proved only by proof of purchase of certain properties in the names of Bachhittar Singh and Jagga Singh. As regards this independent proof, I have gone through the statement of Megha Singh and find that the same is not enough to establish partition as has been held by the Courts below. Thus, question No.(c) is rendered otiose. With regard to questions (b), (d), (e) and (f), counsel for the appellant has not been able to persuade me that the findings of the R.S.A No.1985 of 2008 ::4:: Courts below that partition was not proved could not be held to be either based on no evidence or based on such misreading of evidence as would render the same perverse. The answer to question No.(g) can be found in the case reported as Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others, AIR 1978 SC 1239. In paragraphs 10, 11, 12 and 13, the Hon'ble Supreme Court has given answer to question No. (g) against the appellant which is as follows :- “ 10. Two things are thus clear: One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. 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 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai (AIR 1964 Bom 263) 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. 11. We see no justification for limiting the plaintiff share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. We R.S.A No.1985 of 2008 ::5:: think that in overlooking that 1/4th 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. 12. The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by S. 18-A (9) (b) of the India Income-tax Act, 1922, was given by this Court in Commr. of Income-tax, Delhi v. S. Teja Singh, 1959 Supp (1) SCR 394: (AIR 1959 SC 352). It was held in that case that the fiction that the failure to send an estimate of tax on income under S. 18-A (3) 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 S. 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 S. 18-A (9) (b), namely, the issuance of a notice under S. 22 and the failure to R.S.A No.1985 of 2008 ::6:: comply with that notice. Section 18-A (9) (b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income under S. 18-A (3) 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 S. 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 S. 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by Section 18-A (9) (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. v. Finsbury Borough Council, 1952 AC 109 (132). He said: If you are bidden to treat an imaginary state of affairs as real, you must 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; 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. R.S.A No.1985 of 2008 ::7:: 13. 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 S. 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 R.S.A No.1985 of 2008 ::8:: to the 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 lifetime 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.” Counsel for the appellant has relied upon a Division Bench judgment of Karnataka High Court in Babu Ningappa Yalgundri (deceased) by L.Rs) and others v. Arunkumar alias Basappa and others, AIR 1988 Karnataka 139, wherein in para 25, the judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum's case (supra) has been considered. He has referred me to paragraphs 25, 26 and 27 and more particularly on the last part of para 27. The said paragraphs read thus :- “25. Mr. Mandgi, next placed reliance on the decision of the Supreme Court in the case of Gurupad Khandappa R.S.A No.1985 of 2008 ::9:: Magdum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239. In the said case, it has been observed that the widow's share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. It was further laid down that in order to ascertain the share of the heirs in the property of deceased coparcener, it was 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 could one determine the extent of the claimant's share. Explanation 1 to Sec. 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. 26. That does not amount to ruling that on the death of the Mitakshara coparcener it does, ipso facto, follow that a partition has taken place immediately prior to his death and his interest must devolve by succession or inheritance and not by survivorship. The ruling does no R.S.A No.1985 of 2008 ::10:: more than lay down the procedure by which the quantum of share of heirs including female heirs may be ascertained if the proviso is given effect to Sec. 6 of the Hindu Succession Act. 27. Sec. 6 of the Hindu Succession Act and the explanations thereto indicates the mode of ascertainment of shares or extent of shares and no more. This becomes clear by the very language of Sec. 6 of the Hindu Succession Act which is as follows : "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 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 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 R.S.A No.1985 of 2008 ::11:: 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." In no part of the Section is it laid down by the legislature that a partition must necessarily follow or be assumed to have followed on the death of a coparcener if he has left behind him female heirs as specified in Class I of the Schedule. Even the Supreme Court has said that assumption must be made that there was a partition only in order to ascertain the quantum of share. To read more than that into the decision would be to re-write Sec. 6 of the Hindu Succession Act.” I do not see how the judgment of Karnataka High Court in Babu Ningappa Yalgundri (deceased) by L.Rs) and others' case (supra) helps the appellant in any way. That was a case where on the fiction expounded by the Hon'ble Supreme Court in the case of Gurupad Khandappa Magdum's case (supra), the adopted son's interest in the joint property was sought to be negated by alleging that on the death of prepositus of the joint family a deemed partition had taken place and, thus, the joint family ceased to exist. All that the learned Judges laid down was that the fiction of deemed partition would not result in the break up of the joint family. Thus, by applying the judgment of the Hon'ble Supreme Court R.S.A No.1985 of 2008 ::12:: in Gurupad Khandappa Magdum's case (supra), the shares of various coparceners at the time of Chanan Singh's death would have to be worked out. With regard to question No.(a), it may be mentioned that the only additional issue proposed is with regard to the allegation of partition. However, in my opinion that issue would be covered by issue No.1 framed before the Courts below. Coming now to question No. (h) it would be seen that Chanan Singh left behind three sons, three daughters and one widow. Undisputedly, Section 6 of the Hindu Succession Act, 1956 (for short “the Act”) would be applicable which is quoted herein below :- “ 6.-Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section R.S.A No.1985 of 2008 ::13:: shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and R.S.A No.1985 of 2008 ::14:: (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-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. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub- section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case R.S.A No.1985 of 2008 ::15:: may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court).” In consonance with the judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum's case (supra), at the time of death of Chanan Singh a notional partition would be deemed to take place among five co-parceners viz. Chanan Singh, his three sons and widow with each having 1/5th share. This separate share of Chanan Singh, in keeping with the R.S.A No.1985 of 2008 ::16:: proviso to Section 6 of the Act, would be divided among all seven of his heirs. Thus, respondent No.1 would be entitled to 1/5th + 1/35th =8/35th share while respondent No.2 would be entitled to 1/35th share. In addition thereto, on the death of the widow of Chanan Singh, her 8/35th share would again devolve upon her six heirs, thus, giving an additional 8/210th share each to respondents No.1 and 2. Respondent No.1 would ultimately be entitled to 8/35th + 8/210th =56/210th =4/15th share, while respondent No.2 would be entitled to 1/35th +8/210th = 14/210th = 1/15th share. With this modification in the exact share of the respondents and in view of the decision on the questions of law above, these appeals are dismissed with no order as to costs. As the main appeals have since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) August 24, 2009. JUDGE `kk'