Judgment:
ORDER
1. The sole but rightfully important question of law which arises in this revision is whether a Hindu widow would be entitled to a share equivalent to that of her husband and other coparceners each, if there had been a partition of the joint family properties immediately before the demise of her husband at any time subsequent to the advent of the Hindu Succession Act.
2. It may, however, be stated at the outset that the point being question of law has been allowed to be raised in this revision, as it was erroneously determined by the primary Tribunal denying the due share to the widowed mother in the process of notional partition effected within the meaning of Explanation I to proviso to S. 6 of the Hindu Succession Act.
3. Now to the facts in brief : One Gunde Rao died in the year 1965, surviving his wife Satyamma, three sons and two daughters. The revisionist G. V. Kishan Rao is one of the sons of the late Gunde Rao.
4. The admitted position is that for the purpose of declarations to be filed under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, separate declarations were filed by the sons of the late Gunde Rao, two sons of one of the sons and the widow. By notional partition so effected, the share of the late Gunde Rao was divided as under :-
The entire property was first divided into four equal shares between the three sons and the late father i.e., one-fourth each and thereafter the said one-fourth share of the late Gunde Rao was equally divided into six shares amongst the three sons, two daughters and the widow of the late Gunde Rao i.e., 1/24th each and eventually the holding was determined accordingly.
5. Now, the question is on fictional partition before the demise of her late husband in the year 1965, what would be the share, if any, that the widow will be entitled to. Would she be entitled to share equally along with her husband and three sons
6. Before answering, the statutory provisions, the case law cited and also the observations in the commentaries referred to may be noticed. Section 4 of the Hindu Succession Act reads :
'4. Overriding effect of Act.- (1) Save as otherwise expressly provided in this Act -
(a) any text, rule or interpretation of Hindu Law of any custom or usage as part of the law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts, it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holding or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings.'
Section 6 of the said Act reads :-
'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 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 I - For the purpose 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.'
7. In Gurupad v. Hirabai, : [1981]129ITR440(SC) , the facts were that one Khandappa died on June 27, 1960 surviving his wife Hirabai, two sons Gurupad and Shivpad and three daughters. On November 6, 1962 Hirabai filed a suit for partition and separate possession of 7/24th share in the properties belonging to the joint family consisting of her husband, herself and their two sons. If a partition about to take place during Khandappa's lifetime between himself and the two sons, the plaintiff, the widow of the late Khandappa would have got a 1/4th share in the joint family properties, the other three getting a 1/4th share each. Khandappa's 1/4th share would then devolve upon his death on six sharers; the widow and her children each having a 1/24th share therein. Adding 1/4th and 1/24th, she claimed a 7/24th share in the joint family properties. In this set of circumstances, the Court held :
'Before considering the implications of Explanation 1, it is necessary to remember that what S. 6 deals with is devolution of the interest which a male Hindu has in a mitakshara coparcenary property at 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 S. 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 to 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 S. 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 Ss. 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. Two sons, daughter and widow are mentioned as heirs in Class I of the Schedule and, therefore, by reason of the provisions of S. 8(a) read with the Ist clause of S. 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 S. 10 read with Rr. 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 1/6th.
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 mitakshara coparcener shall be deemed to be the sharer 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.
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, : AIR1964Bom263 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.'
Further held :
'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 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 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.
The interpretation which we are placing upon the provisions of S. 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, Hindu Women's Right 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 S. 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 matter 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.'
8. This Court in Kishta Bai v. Ratna Bai, (1979) 1 APLJ (HC) 318, in the circumstances similar to the one on hand as well as the decision of the Supreme Court cited supra, and by distinguishing the aforesaid ratio laid down in the decision of the Supreme Court and also after referring to the provisions enacted in S. 4, Hindu Succession Act, held :
'Gurupad v. Hirabai, : [1981]129ITR440(SC) was an appeal from the decision of the Bombay High Court...............'
In Mayne's Hindu Law, Eleventh Edition, at page 531, it is stated that :
'In Southern India, the rules of the Mitakshara Law allotting a share upon partition to wives, widows, mothers and grandmothers have long since become absolute owing to the influence of the Smritichandrika and the Sarswati Vilasa which follows it and Aparaka. The Smritichandrika holds such a share to be merely an assignment by way of maintenance. Elsewhere, the Mitakshara rules have been in force. According to the Mitakshara Law prevailing in States other than Madras, a wife is entitled on a partition between, her husband and his sons to a share equal to that of a son; but she cannot enforce a partition.'
Further held :
'In Bombay State, the wife herself cannot demand partition. But, if a partition takes place between her husband and her sons, she is entitled to receive a share equal to that of a son and hold and enjoy that share separately even from her husband (see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In fact, Mulla was referred to by Chandrachud, C. J., in Para 9 of his judgment. But, that is not the position in Southern India. Mulla has stated at p. 403, that 'in Southern India, the practice of allotting shares upon partition to females has long since become obsolete'. At page 403, he has stated that 'in Madras a mother is not entitled to a share. She is entitled only to a provision for her maintenance which must not in any case exceed the share of a son'. He referred to Smritichandrika, Chap. IV paras 12-17. See also Illustration (2) at p. 853.
Reference can also be made to Hindu Law by N. R. Raghavacharier (sixth edition) at page 416, Venkatammal v. Andyappa, (1883) ILR 6 Mad 130; Mari v. Chinnammal, (1885) ILR 8 Mad 107 (FB); Subbramanian Chetti v. Arunachalam Chetty, (1905) ILR 28 Mad 1 at p. 8 (FB) and Kanyalal v. Controller of Estate Duty, : [1961]41ITR1(AP) .
Thus, in Southern India, including the State of Andhra Pradesh, when a father, who is governed by Mitakshara law effects partition with his sons during his lifetime, no share is given to his wife. Therefore, the decision of the Supreme Court to that extent is distinguishable. If so, if Lachma Reddy had effected partition during his lifetime, his two wives, that is, the plaintiff and defendant 1 would not have been given a share. Only defendant 3 would have got a share. Consequently, after the death of Lachma Reddy, his half a share alone in the joint family properties has to be partitioned into five equal shares, and the plaintiff and defendant 1 together get 1/10th share and the plaintiff gets 1/20th share.
But, it is submitted by the learned counsel for the appellant that in view of S. 4, Hindu Succession Act, I cannot go by the Hindu Law Rule prevailing in this State, and it must be understood to have been overruled. Section 4 reads as follows :................ ................... .................... ...................... .....................
But that section cannot be invoked because the Act does not make any provision that if a father were to effect a partition with his sons during his lifetime he should give a share to his wife equal to that of his son. Similarly, it cannot be said that the rule prevailing in this State is inconsistent with any of the provisions of the Hindu Succession Act. Consequently, the decision of the Supreme Court is distinguishable and has no application to the quantum of share to which a wife is entitled to in this State in a partition of the Mitakshara Hindu joint family properties, after the death of her husband intestate, after the Hindu Succession Act came into force. In the result, I hold that the plaintiff is entitled only to 1/20th share in the joint family properties.'
9. A Full Bench of this Court in A. Seethamahalakshmamma v. Y. Chalamiah, : AIR1974AP130 held :-
'What is it that follows from a close and careful reading of the Mitakshara text on the one hand and the Smruthi Chandrika and Saraswati Vilas on the other? It is this :
1. Mother or wife is not a coparcener.
2. Mother or wife has no right to demand a partition.
3. Partition can be at the father's or husband's desire not at the desire of the mother or wife. In such a case, if the father or husband makes the share equal, then the mother or wife would be a partaker of equal share. This is subject to the condition that she has not been given property by her husband or father-in-law. If she has enough, then she would not get any allotment of the property to her.
4. More or less the same rule applies if a partition between sons takes place after the death of the father.
5. If the word 'amsa' appearing in the Mitakshara is understood to mean 'portion' and not 'share' as is understood by Smruthi Chandrika and Saraswati Vilas, then there would be no conflict between these three texts. Up to this point, there is thus unanimity amongst all the three text writers. Since, the Mitakshara is silent on some of the aspects, the following appear prominently in the Saraswati Vilas but it logically flows from the text of Mitakshara.
6. If the mother or the wife has her won property, then she will get only a proportionate share, but in no case more than what the son gets.
7. The portion allotted to the mother or wife is for her maintenance and for performance of such religious rites as require property. Thus there is no distinct establishment of a mother's division of heritage, but only a taking of such substance as she requires for the said purpose.'
Further held :
'After a careful perusal of the Supreme Court decision on which reliance was placed it would be evident that the Supreme Court was not concerned with the law prevailing in Madras. In that case, the parties were governed by Benaras or Mithila School of Hindu Law. The ancestors of the parties had migrated from the North and had settled down in the former State of Hyderabad. It was not disputed before the Supreme Court that the mother did not have a share in that case. The High Court in that case had not accepted the contention that she was entitled to a share on the ground that in the written statement of the 2nd defendant there was nothing to suggest that she was claiming a share in the joint family properties. The Supreme Court pointed out that that would not be a correct approach. It was stated that as she became entitled to one-third share and merely because she had not asked for any specific share in her written statement, she should not be denied her share on a partition taking place in the absence of proof that there had been any abandonment or waiver of her rights and interest. It would thus be evident that the ancestors of the parties in the said case were migrants to the Nizam's Dominions and prima facie they had carried their personal law with them and had not adopted the Madras School. It is only on that assumption that the said decision was given.
Unfortunately, while noticing S. 315 at page 365 of Mulla's Hindu Law, the foot-note given under the heading 'illustration' as extracted above was not noticed by the Bench of this Court in the abovesaid two cases. If that portion and the previous decisions of the Madras High Court and the text-books on Hindu Law had been brought to the notice of the learned Judges, we are sure that such an observation extracted above in the first case and the decision given in the second case referred to above would not have been made and given by the said Bench of this Court. With due respect to the learned Judges who decided the two cases, we are unable to agree with the view expressed therein.
Bearing in mind the facts of this case, it is quite relevant to note that even otherwise the mere institution of suits for partition by a member of the joint family or even the passing of a preliminary decree therein does not make any of those females the owner of a share in the family property so long as no actual division of the joint property is made. What should follow is that the allotment of a share to the mother in a partition between her sons, even in the instant suits out of which these revisions arise are treated to be so would not defeat the right of auction purchasers which had accured prior to the decrees in the execution of a decree binding on the family as is the case undisputably here. (See Jamuna Devi v. Mangal Das, AIR 1946 Pat 306).
We are, however, of the clear opinion that since the parties are governed by the Madras School, the Wife or mother cannot claim any share in the joint family property as the practice of allotting shares to females, even if it existed at some distant period of time, has become obsolete in Southern India. We have, therefore, after consideration and paying, we hope, due attention to the points put forward by the learned Advocate for the petitioner, felt compelled to reject them. It may be that some of the Madras decisions might have made observations coming as they by a sidewind, but their value or even binding nature cannot be overlooked.'
10. The learned counsel also cited the decisions in Munnalal v. Rajkumar, : AIR1962SC1493 and Subramaniam Chetti v. Arunachalam Chetty, (1905) ILR 28 Mad 1 (FB) but they are of no relevance.
11. So far as the decision of the Full Bench of this Court (A. Seethamahai Lakshmamma v. Y. Chalamaiah, : AIR1974AP130 ) (supra) is concerned, it has indeed no nexus and, therefore, is not helpful in deciding the actual point that arises in this case, because S. 6 much less Explanation thereto of the Succession Act has not fallen for determination at all nor has it been considered in connection thereto. The question is whether the ratio laid down in the decision of the Supreme Court viz., Gurupad v. Hirabai, : [1981]129ITR440(SC) (supra) can be taken as binding judicial precedent in this behalf. This has been no doubt considered by a learned single Judge of this Court in the case cited earlier, but held that it has no application on the ground that the customary law prevalent in Southern India has not been adverted to therein, as the Supreme Court adjudicated with reference to the Mitakshara law as it prevailed in the State of Maharashtra. But then the learned Judge while dealing with S. 4 and construing the provisions thereto merely held :
'..........that Section cannot be invoked because the Act does not make any provision that if a father were to effect a partition with his sons during his lifetime he should give a share to his wife equal to that of his son. Similarly, it cannot be said that the rule prevailing in this State is inconsistent with any of the provisions of the Hindu Succession Act. Consequently, the decision of the Supreme Court is distinguishable and has no application to the quantum of share to which a wife is entitled to in this State in a partition of the Mitakshara Hindu Joint family properties after the death of her husband intestate, after the Hindu Succession Act came into force'.
12. Therefore, the limited question now is whether the Hindu Succession Act makes any provision entitling the wife to get a share equivalent to a share which a coparcener would get should there be a partition of the joint family properties?
13. As per the construction of Explanation 1 to S. 6 by the Supreme Court, there is said to exist a provision enabling the widow to get a equal share by a fictional partition along with her sons as though there has been a partition immediately before the demise of her husband and if so she will be getting equal share along with the coparceners viz., her husband and the sons. This finds place in para. 11 of the said Judgment which may be set out :
'We see no justification for limiting the plaintiff's 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 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'.
14. So, while drawing assistance from this interpretation and so to the ratio, I have no hesitation in adjudicating that Explanation 1 to S. 6 postulates conferring a right on the wife to share equally with that of her son or sons if a father were to effect a partition with his sons during his lifetime. Therefore, with great deference to the learned single Judge, Gangadhara Rao, (as he then was), while respectfully agreeing with the ratio laid down by the Supreme Court, I express my dissenting voice from his decision. If this were not to be our interpretation by imputing to the Legislature while enacting S. 6 including the Explanation thereto, the knowledge of not only the prevailing position in respect of Mitakshara law as it was in vogue in Maharashtra, but also the customary law in Southern India, the emasculated right of a woman which was sought to be brought in unfortunately during the last century by some interpretative process on the text of commentaries which though was contrary to the heritage that was prevailing till then and thereafter she became almost a chattel in the hands of husband, until later her position was sought to be gradually improved right from Hindu Women's Rights to Property Act, 1937 crystallising her equal position under the Hindu Succession Act and despite the same, the dowry deaths have been increasingly on the ascent the abominable position is being perpetuated, which the Courts of judicature in the light of the intentions expressed so vividly in the legislation, will not be allowed any more to continue. In my judgment, therefore, there is a provision enacted in Explanation 1 to S. 6 seeking to confer a right on the wife in case of actual partition, or on the widow in case of notional partition to have equal share with a son as the case may be. This decision is arrived at by deriving assistance from the overriding provisions enacted in S. 4 of the Hindu Succession Act which obliterates any law including customary law, contrary to any of the provisions enacted in the Hindu Succession Act viz., Explanation 1 to S. 6. Therefore, under any customary law, even if it is well trenched, as it is said to be with reference to Mitakshara law in Southern India, the Wife has no right to any share much less any claim for partitioning of the Hindu joint family properties, as she was said to be entitled to only maintenance. This position, therefore, cannot be said to be any more in vogue subsequent to the commencement of the Hindu succession Act.
15. From the foregoing, the emerging principle is that in a Mitakshara coparcenary property, irrespective of regional barriers, wherever the Mitakshara is holding the field, when a male Hindu dies after the commencement of the Hindu Succession Act having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by testamentary or intestate succession, as the case may be, and not by survivorship, if the deceased had left him surviving a female relative specified in Class I of the Schedule to the said Act.
16. Hence, Satyamma who is the widow of the late Gunde Rao will be entitled at first to a share equivalent to that of her each son. This is on the basis that just before the demise of her husband, if property is partitioned, it will be into five equal shares and so her husband, herself and three sons will be entitled to each 1/5th share. Therefore, by fictional partition, she would be entitled to 1/5th share as though partition has been effected between her husband and the three sons. Then she would again be entitled to 1/6th share out of 1/5th share of her late husband and, therefore, she will be entitled to 7/30th share.
17. In view of the above, I direct the primary Tribunal to reopen all the declarations filed in this behalf and determine the holding of each of the declarants therein in the light of the observations made in this judgment, after giving due notices and opportunity to all the parties concerned.
18. The Civil Revision Petition is accordingly allowed. No costs. Advocate's fee Rs. 250.00.
19. Petition allowed.