Supreme Court of India
RAM NATH SAO @ RAM NATH SAHU SINCE DECEASED THR. L.RS.& ORS;versusGOBERDHAN SAO SINCE DECEASED THR. LRS. & ORS.
- Citation
- 2017 INSC 315
- Decided
- 6 April 2017
- Disposal
- Appeal(s) allowed
Holding
The appellants are entitled to a 38.1% share in the joint family property, and the decree is modified accordingly.
Summary
The Supreme Court heard Civil Appeal No. 1110 of 2006 (Ram Nath Sao @ Ram Nath Sahu v. Goberdhan Sao) concerning the partition of a Hindu Mitakshara joint family property. The dispute centered on the calculation of each member's share after successive deaths, the applicability of Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and Section 6 of the Hindu Succession Act, 1956, and whether a notional partition should be presumed. The Court examined the devolution of the deceased’s share to his widow and other heirs, applying the provisions of the 1937 Act and the 1956 Act, and clarified the method of computing the shares of the surviving members. It held that the appellants were entitled to a 38.1% share in the joint family property, correcting the lower courts’ award of 37.5%. Accordingly, the appeal was allowed and the decree was modified.
Issues considered
- The correct method of calculating shares in a Hindu Mitakshara joint family property after successive deaths
- Whether Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 applies to the widow’s share in the joint family property
- Whether Section 6 of the Hindu Succession Act, 1956 (and its explanation) governs the devolution of the deceased coparcener’s share
- The necessity of a notional partition for determining shares
- The entitlement of the appellants to a higher percentage share than awarded by the trial and appellate courts
Legislation cited
Subjects
Joint family propertyPartitionHindu Mitakshara lawWidow's rightsIntestate successionNotional partitionShare calculationHindu Women’s Rights to Property ActHindu Succession Act
Judgment
·1
812
SUPREME COURT REPORTS • I
-- [20 I 7] 2 S.C.R. (2017] 2 S.C.R. 813
.. 11·1
I
A tend to feel that they have their deserved space. Total exclusion. for
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11
111 admission to medical courses without any stipulation in which they really : RAM NATH SAO @ RAM NATH SAHU SINCE DECEASED A
THR. L.RS.& ORS;
can practise, and re1,1der assistance would tantamount to regressive
thinking. When we conceive of global phenomenon and universal I v.
B
brotherhood, efforts are to be made to ·be within the said parameters.
The march of science, apart from our constitutional warrant and values,
commands inclusion and not exclusion. That is tl1e way a believer in
human rights should think.
I GOBERDHAN SAO SINCE
. .
DECEASED THR.: LRS. & ORS.
(Civil Appeal No. 1110 ofZ006)
APRJL06,2017
B
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31. Tn view of the aforesaid submissions, we direct as follows:- I
: [RANJAN GOGOi ~ND ASIIOK BHUSIIAN, JJ.) ·
I
{I) The Medical Council of India shall constitute a Committee of
c experts that shall include the representatives of the Medical Council of
•Partition - Allocation of shares as regards joint family
properties - Under s.3(2) of Hindu Womens "Rights to Property Act, ~
fndia, experts from genetics, ophthalmology, psychiatry and medical 1937, on the death ofhusband, his widow becoiues entitle to a share
c I
education, who shall be from outside the members of the MediCal Council
[,I
in the joint family property - Further, property of a joi/1/ family
of India. At this juncture, we must apprecia,bly state that Mr. Vikas does not cease to belong to the family merely because. the family is
,
Singh, learned senior counsel, has submitted thattheCourt may say that
the persons as experts who are to be takei1 from outside, shall be from
represe111ed by a single co-parcener who possesses rights which an
owner of property may possess - Hindu Womens Rights to Property
i
·I
D the All India Institute ofMedical Sciences (AUMS), and tl1e Post Graduate Act, 1937 - s,3(2) - Hindu Succession.Act, 1956 - s.6. D
::·i Institute of Medical Education and Research,,Chandigarh;_. · 1:11
Partlyallowing the appeal, the Court
(IT) The Medical Council of India may also in~ite Mr. K. V. i :1•'
Viswanathan along with Mr.· M: Shoeb Alam to as'sist them to take a HELD: 1. The common ancestor of parties 'FM' died in 1
view. Be it noted, Mr. Vikas Singh has gladly accepted the suggestion.· the year 1940. At the time of his death, the Hindu Women's 11
E . . . . Rights to Property Act, 1937 was. in force. 1Jnder Section 3(2) of ii\,
:11.
(III) The expert Committee shall review the situation and take E \1'!
the 1937 Act, on the death of'Jo"M' his widow/wife 'PD' became
note of the prevalent conditions of the stu'dy and practice arid suggest • entitled to a share in the joint family property. However, the II: i
I 11
~:iI I
changes for adoption in the medical course keeping in view the . share· of 'PD' would remain undeterinined till such time when
international practices. ·
there is a partition in the family. On the date of death of 'FM',
F . (IV) The expert Committee shall also concentrate on diagnostic his son 'MS' did not have any male issue. However, the joint i1i!1
test for progress and review of the disorder and what are the available .- · family in question can be understood to have continued with 'MS' F i
prosthetics aids to assist CVD medical practitioners and what areas of as the 'Karla' arid the property continued to belong to the joint
practice could they undertake without difficulty with these aids. Jamily.Thus, the position prior to the coming into force of the
Hindu Succession Act, 1956 was that the joint family continued
(V) The Committee shall meet within a period of three weeks and · on the death of '.FM' witi1 'MS' as the sole coparcener and the
G submit a report to this Court within three months l1ence. I
joint family properties continued to belong to the. family and II
32. Let the matter be listed for further hearing on 11"' July, 2017. furthermore 'PD' continued to have a share in the property. [Paras G
~ ''- : 9, 10, 11, 121 (817-E, G; sis-c, }'-GJ · I'
11
DcviL;a Gujral
.· 2.1 After the death of 'MS' in the year l961, following the
. ,,. Directions issued.
provisions of ~eetion 6 of the Hindu Succession Act, 1956, a
H
notional partition· just before the death of 'MS' will have to be
H
813 !
814 SUPREME COURT REPORTS [2017] 2 S.C.R.
' '
A presumed. There would, therefore, be 8 sharers in. the joint family
properties and the share of each one. of them would equal i.e. 1/. ' ''
81h each. Insofar as 'DD', the wife of 'MS' is concerned, she
would be entitled to l/8th share of the joint family properties
upon the notional partition being given effect to. [Para 14) (819-
E-F; 820-A) .
D
2.2. Next aspect of the case is with regard to the l/8th share
of 'MS' and the devolution of the said share to the surviving
members of the joint family. ;In this regard, it can be lield will1out
any difficulty.that under the proviso to Section 6 of the Hindu
c Succession Act, 1956 the share of 'MS' in tbe joint family property
(1/81h) would devolve by intestate succession among surviving
members of the joint family. Thus afler 1961, 'PD' being the widow
of '.FM' bad l/81h plus 1/721h share in the joint family. property,
namely, 10/72th share. 'PD' died in the year 1967 leaving behind
her daughter 'UD' and the children of her predeceased son 'MS'.
D 'UD' will be entitled to receive one-half share of 'PD' i.e. half of
' 10/72th share i.e. 10/144th sbare. The remaining 10/144th share.
that would go to the branch of'MS' will have to be divided amongst
8 heirs of 'MS' 1 namely, the widow and the seven children. The
appellants-defendants are entitled to 38.1% share in tbc joint
family property instead of 3.7.5% as ordered by the courls below. ·
E
[Paras 15, 16, 18) [821-D-E, II; 822-A-B; 823-D) ·
Patti Lakshmi Perumallu' v. Patti Krishna. Vena111111a
(1965) 1 SCR 26; Gowli Buddmma v. Co111111issio11er of.·
Income Tax, Mysore, Bangalore 119661 3 SCR ·224;.
F Gurupad Khandappa Afagdum v. Hirabai Khandappa ....
Mdgdum and Ors. (1978) 3 SCC 383 : [1978) 3 SCR .
761 - relied on. ' '
''
' Case La·w Reference
(1965) 1 SCR 26 relied on. Para 10
G
J1966J 3 SCR 224 relied on Para 11
Jl978J 3 SCR 761' relied on Para14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. i 110 '-
of2006: · · '·
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814
SUPREME COURT REPORTS
[2017] 2 S.C.R. RAM NATH SAO@ RAM NATH SAHU v. GOBERDHAN SAO ·815
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presumed. There would, therefore, be 8 sharers in.tl1e joint family ~
properties and the share of each one of them would equal i.e. 11 . ... From the Judgment and Order dated 26.02.2003 of the High Court A
I 8th each. Insofar as 'DD', the wife of 'MS' is concerned, she of Jharkhand at Ranchi in Appeal from Original Decree No. 307 of
would be entitled to I/8th share of the joint family properties 1989..
upon the notional partition being given effect to. (Para I4] [8I9- Gaurav Agrawal, Abhikalp Pratap Singh, Prashant Kumar, Advs.
11 B E-F; 820-A] .
for the Appellants. '
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ii
2.2. Next aspect of the case is with regard to the 1/8th share
of 'MS' and the devolution of the said share to lhe surviving
members of the joint family. ;In this regard, it can be held williout
Arup Banerjee, M. K. Verma, Braj Ki shore Mishra, Advs. for the
·Respondents.
· ·The Judgment of the Court was delivered by
8
any difficulty. that under the proviso to Section 6 of the Hindu
I! c Succession Act, I956 the share of 'MS' in the joint family property RANJAN GOGOi, J. I. The appellants are the defendants in a
(1/8th) would devolve by intestate succession among surviving partition suit filed by the.respondents, as plaintiffs, seeking partition. of c
members of the joint family. Thus after I96I, 'PD' being the widow .. various properties specifically mentioned in Schedule 'B' and Schedule
I of '.FM' had I/8th plus I/72th share in the joint family property, 'C' of the plaint. ·
I namely, 10/72th sl1are. 'PD' died in tl1e year I967 leaving behind . . 2. Al the outset, the following genealogical table is being set ~ut to
!
D lier daugl1ter 'UD' and the cl1ildren of lier predeceased son 'MS'. enable a clear and easy understanding of the facts and the findings with
'UD' will be entitled to receive one-half share of 'PD' i.e. l1alf of ·. regard to the entitlement of the parties that would be arrived at in the · D
' 10/72th share i.e. 10/I44th share. The remaining 10/I44th share course of the deliberations that follow.
that would go to the branch of'MS' will have to be divided amongst Fuchan Mah1o~died 1940
8 heirs of 'MS' 1 namely, tl1e widow and the seven children. Tl1e Wife Puniya Devi:.. died 1967
appellants-defendants are entitled to 38.I% share in the joint I
E family property instead of 37.5% as ordered by the courts below. · -------------------------·
1. 1.
[Paras I5, I6, I8] (82I-D-E, II; 822-A-D; 823-D] · E
Mithu Sao (son) Ugni Devi (daughter)
(died 1961) (died 1995)
Patti Lakshmi Perumallu' v. Patti Krishna Venamma ! !
(1965] 1 SCR 26; Gow/i Buddmma v. Co111111issio11er of
,.
----------------------!
Income Tax, Mysore, Bangalore [19661 3 .SCR ·224;.
F Gurupad Khandappa Magdum v. Hirabai Khandappa ...
Jagar-· Parasnath Dharamnath
nath <Appellants)
,
Mdgdum and Ors. (1978) 3 SCC 383 : (1978] 3 SCR . F
761'- relied on. . .
I
' Case Law Reference .. --------------------------!
G (1965] 1 SCR 26 Temni (1 11 wife) Bilaso Devi (2"" Wife)
relied on.
Para 10 ! I
J1966_1 3 SCR 224
relied on
·--------------------- --------------------.
I - I I I
G
Para 11
J19711J 3 SCR 761· Ra:mnath Kashinath · Duchwa ·. Govardhan Jagdish Datdeo Sarib.··
relied on
Para.14 CAppellantsl · fRespondentsl
No. i I IO'-
3. The case of the respondents pl~intiffs is that Fuchan Mahto
CIVIL
of2006: APPELLATE
· · · JURISDICTION:
· ·· Civil Appeal
H
(died in 1940), the common ancestor of the parties had a son Muthu Sao
H
817
\II RAM NATH SAO @ RAM NATH SAHU v. GOBERDHAN SAO
816 SUPREME COURT REPORTS [2017] 2 S.C.R.. . [RANJAN GOGOi, J.]
I
i, J7-l/2 paise in "t~.eSchedul~ 'B' property and .items I to 8 of v~!lage ·A
A who died in the year 1961. Mithu Sa9 had two wives, namely, Temiii (I• Labaga; items 1·and 2 of village Rasda; and items I to 8 of village
ii I wife) and Bilaso Devi (2"' wife). At, the time of the filing of the suit for
partition Temni (I" wife) was no/more,, The defendants in the suit
Hafuwa in Schedule 'C' properties. By the said decree which has been
at1irmed in appeal by the High Court, so far as the property mentioned
"1· Ramnath, Kashinath Buchwa are the sons and daughter of Mithu Sao in item No.9 of Schedule 'C' is concerned, 12 and 11 paise share therein
:I ' oft~1e ~laintiffs ~een grant~d.
I
and Temni (I• wife) whereas the plaintiffs Govardhan, Jagdish, Baldeo
I i and Sarita are the sons and daughter ofMithu Sao and Bilaso Devi (2"'
in favour and department have As the B
said property 1.e.1tem No.9 of Schedule 'C' pertamto 23 pa1se share of
B
I wife), who is a co-plaintiff.
4. According to the plaintiffs, they along with the defendants
the five sons of Muthu Sao in property purchased by them along with
otherperson~ by' 8 different sale deeds, the said property is not the
constituted a joint Hindu Mitakshra familywhich owned ancestral land subject matter of the present appeal in its truncated form, as indicated
recorded under Khata No.19 of village Lapanga in the district of
ii Hazaribagh. It is the case of the plaintiffs that the joint family also earlier.7. This Court while issuing notice in the present appeal confined C
11, c acquired lands in several other villages in the name of one or other the area of scrutiny to the question of"al location of sl~ares as regards to
members of the joint family. According to the plaintiffs, the parties the properties found to be joint family properties". In view of the aforesaid
I continued in joint possession of the properties, both ancestral and limited notice, the issue with regard to the shares of the respective parties
subsequently acquired. As the members ofjoint family had increased it in the joint family properties alone will have to be determined in the
:I1, became inconvenient to continue to remain joint. Hence the suit for a present appeal and no question of reopening the concurrent findings of D
decree of partition was filed. the learned forums below with regard to the existence of joint family
\,, D
:! 5. The defendants contested the suit, inter alia, 011 the ground I and the holding of properties jointly can arise.
that lhere was .no unity of title and possession between the parties. . , 8. We have heard the learned counsels for' the parties.
i According to the defendants, after the death of Mithu sao in the year, 9. Fuchan Mahto died in the year 1940. At the time of his death,
1961 or even before his death there was disruption in the family on
the Hindu Women's Rights to Property Act, 1937 (hereinafter referred E
account of the fact that Mithu Sao had married twice. There were
E serious differences in the family and the children of the first wife Tenmi
1. to as "the 1937 Act") was in force. Section 3(2) of the 1937 Act which
separated from Mithu Sao. It is the case of the defendants that after the is re.levant for the present case provided as follows:
death of Mithu Sao the children of first wife and second wife again "3(2) When a Hindu governed by any school of Hindu '1aw other
separated. The defendants pleaded that as there was no joint family in than the payabhaga school or by customary law dies having at
existence both the parties had separate earnings and only the ancestral the time of his death an interest in a Hindu joint family property, F
F lands ofKhata No.19 are available for partition, major portion of which • his widow shall, subjectto the provisions of sub-section (3), have
had been acquired by the Government and compensation amount had in the property the same interest as he himself had;"
been evenly distributed amongst the parties according to their respective 10. Under Section 3(2) of the 1937 Act, on the death ofFuchan
shares. According to the defendants, the other items of the Schedule Mahto his widow/wife Puniya Devi became entitled to a share in the
property are self-acquired properties which are not liable to be partitioned. joint family property. However, the share of Puniya Devi would remain G
6. The learned trial Court decreed the suit holding that the plaintiffs undetermined till such time when there is a partition in the family. This
G
are entitled to the extent of 63-1/2 paise share in the Schedule 'B' property; is what has been held by this Court in Potti LakshmiPerumallu vs.
items I to 8 of village Labaga in Schedule 'C'; items I and 2 of village Potti Krishna Venamma'. The relevant paragraph in the said judgment
Rasda in Schedule 'C'; and items I to 8 of village Hafuwa in Schedule
to t11e above effect is extracted below:
'C' properties and 12 paise share . in the properties mentioned
. in Item H
No.9 of village Hafuwa in Schedule 'C' properties. The defendants 1 (1965) I SCR26
H appellants, on the other hand, were found to be entitled to the remaining \,_
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AM NATH SAO@ RAM NATH SAHU v. GOBERDHAN SAO 817
R . [RANJAN GOGOi, J.]
,, .
37.112 paise in tl1.e Schedule 'B' property and items I to 8 of village ·A
Labaga; items. (and 2 of village Rasda; and items I to 8 of village
Hafuwa in Schedule 'C' properties. By the said decree which has been
atlirmed in appeal by the High Court, so far as the property mentioned
in item No.9 of Schedule 'C' is concerned, 12 and 11 paise share therein
in favour of the plaintiffs and department have been granted. As the
B
said property i.e. item No.9 of Schedule 'C' pertain to 23 paise share of
the five sons of Muthu Sao in property purchased by them along. with
other persons by 8 different sale deeds, the said property is not the
subject matter of the present appeal in its truncated form, as indicated
earlier.
7. This Court while issuing notice in the present appeal confined c
the area of scrutiny to the question of"al location of sl~ares as regards to
the properties found to bejointfamily properties". In view ofthe aforesaid
limited notice, the issue with regard to the shares of the respective parties
in the joint family properties alone will have to be determined in the
present appeal and no question ofreopening the concurrent findings of
D
the learned forums below with regard to the existence of joint family
and the holding of properties jointly can arise .
. ; . 8. We have heard the learned counsels fot the parties.
9. Fuchan Mahto died in the year 1940. At the time of his death,
the Hindu Women's Rights to Property Act, 1937 (hereinafter referred E
to as "the 1937 Act") was in force. Section 3(2) of the 1937 Act which
is relevant for the present case provided as follows:
"3(2) When a Hindu governed by any school of Hindu iaw other
than the Dayabhaga school or by customary law dies having at
• the time of his death an interest in a Hindu joint family property, F
his widow shall, subjectto the provisions of sub-section (3), have
in the property the same interest as he himself had;"
10. Under Section 3(2) of the 1937 Act, on the death ofFuchan
Mahto his widow/wife Puniya Devi became entitled to a share in the
joint family property. However, the share of Puniya Devi would remain G
undetermined till such time when there is a partition in the family. This
is what has been held by this Court in Potti LakshmiPer11111a/l11 vs.
Pot/I Krishna V<?namma 1• The relevant paragraph in the said judgment
to the above effect is extracted below:
1 (1965)1 SCR26
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818 SUPREME COURT REPORTS (2017]2 S.C.R. T RAM NATH SAO @ RAM NATH SAHU v. GOBERDHAN SAO
,
, (RANJAN GOGOi, J.]
819
A "According to the theory underlying the Hindu la~ihe \~id ow of
••~ tillJe ofhis death an interest in a Mitakshara coparcenary property, A
'his interest in the property shall devolve by survivorship upon the
a deceased Hindu i~ his surviving half and, therefore, as long as I'
1
· surviving members of the coparcenary and not in accordance with
she is alive he must be def'med to continue to exist in her_person.
I
I
This surviving half,had under the Hindu law texts no right to claim
a partition of the property of the family to which her husband · ! this act:.
Provided that,' if the deceased had left him surviving a female
B
belonged. But the Act of 1937 has conferred that right upon her. relative specified in class-I of the Schedule or a male relative
1111 • B
When the Act says that she will have the same right as her husband · specified in that class who claims through such female relative,
had it clearly means that she would be entitled to be allotted the \ the interest ofthe deceased in the Mitakshara coparcenary property
I same share as her husband would have been entitled to had he
I
:~shall devolve by testamentary or intestate succession, as the case
l II .
liyed on the date on which she claimed partition."
11. On the date of death offuchan Mahto, his son Mithu Sao did
rnay be, under this Act and not by survivors.hip.
. Explanation.!-' For the purposes of this section, the interest G
11 i c not have any male issue. However, the joint family in question can be .. of a Hindu Mitakshara coparcener shall be deemed to be the
11 understood to have continued with Mithu Sao as the 'Karta' and the share in the property that would have been allotted to him if a
11 property continued to belong to tlie joint family. The above view would partition of the property had taken place immediately before his
<!
I! find support from the decision of this Court in Goirfi Buddanna v. "death, irrespective of whether he was entitled to claim partition or
II' I.I
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D
Co111111issioner of/11co111e Tax. Mvsore. Bangalore', relevant portion
of which is extracted below:,
not..
Explanation 2.-Nothingcontained in the proviso to this section
D
I
ji I' ~Property of a joint family therefore does not cease to belong to shall be construed as enabling a person who has separated himself
,. I the family merely because the family is represented by a single .. from the coparcenary before the death of the deceased or any of
11 •11
:11
coparcener who possesses rights which an owner of property his heirs to claim on intestacy a share in the interest referred to
. '
E
may possess. In the case in hand the property which yielded the
income originally belonged to a Hindu undivided family. On the
.'·therein."· E
14. After the death ofMithu Sao in the year 1961, following the
death ofBuddappa the family which included a widow and females
provisions of Section 6 of the Hindu Succession Act, 1956, a notional
born in the family was represented by Buddanna alone but the partition just before the death ofMithu Sao will have to be presumed.
property still continued to belong to that undivided family and
.There would; therefore, be 8 sharers in the joint family properties and
income received iherefrom was taxable as income of the Hindu
r
the share of each one of them would be as follows: · F
undivided family." ·
F MithuSao 118
12. The position, therefore, prior to the coming into force of the
1/8
~
Hindu Succession Act, 1956 was that the joint family continued on the Bilaso Devi (wife)
death ofFuchan Mahto with Mithu Sao as the sole coparcener and the ..
1/8
Puniya Devl(mother)
joint family properties continued to be!on'g to the family and furthermore 1.
. .Puniya Devi continued to have a share in the prop.erty. Ramnath (son) 118 G.
G l/S
13 .At this stage, tl1e provisions of Section 6 ofthe Hindu Succession Kashinath (son)
Act, I 956 will require a specific notice which is extracted below: Goverdhan (son) 118
"6. Devolution of interest in coparcenary property.- when a male · · Jagdish (son) 118
Hindu dies. after the commencement of this Act, havingat the
· Baldeo (son) 1/8 H
H '(1966) 3 SCR 224 . '-
i
:1· ' .
LI
818 SUPREME COURT REPORTS (2017]2 S.C.R. T RAM NATH SAO @ RAM NATH SAHU v. GOBERDHAN SAO
,
, (RANJAN GOGOi, J.]
819
A "According to the theory underlying the Hindu la~ihe \~id ow of
••~ tillJe ofhis death an interest in a Mitakshara coparcenary property, A
'his interest in the property shall devolve by survivorship upon the
a deceased Hindu i~ his surviving half and, therefore, as long as I'
1
· surviving members of the coparcenary and not in accordance with
she is alive he must be def'med to continue to exist in her_person.
I
I
This surviving half,had under the Hindu law texts no right to claim
a partition of the property of the family to which her husband · ! this act:.
Provided that,' if the deceased had left him surviving a female
B
belonged. But the Act of 1937 has conferred that right upon her. relative specified in class-I of the Schedule or a male relative
1111 • B
When the Act says that she will have the same right as her husband · specified in that class who claims through such female relative,
had it clearly means that she would be entitled to be allotted the \ the interest ofthe deceased in the Mitakshara coparcenary property
I same share as her husband would have been entitled to had he
I
:~shall devolve by testamentary or intestate succession, as the case
l II .
liyed on the date on which she claimed partition."
11. On the date of death offuchan Mahto, his son Mithu Sao did
rnay be, under this Act and not by survivors.hip.
. Explanation.!-' For the purposes of this section, the interest G
11 i c not have any male issue. However, the joint family in question can be .. of a Hindu Mitakshara coparcener shall be deemed to be the
11 understood to have continued with Mithu Sao as the 'Karta' and the share in the property that would have been allotted to him if a
11 property continued to belong to tlie joint family. The above view would partition of the property had taken place immediately before his
<!
I! find support from the decision of this Court in Goirfi Buddanna v. "death, irrespective of whether he was entitled to claim partition or
II' I.I
'
.
'
D
Co111111issioner of/11co111e Tax. Mvsore. Bangalore', relevant portion
of which is extracted below:,
not..
Explanation 2.-Nothingcontained in the proviso to this section
D
I
ji I' ~Property of a joint family therefore does not cease to belong to shall be construed as enabling a person who has separated himself
,. I the family merely because the family is represented by a single .. from the coparcenary before the death of the deceased or any of
11 •11
:11
coparcener who possesses rights which an owner of property his heirs to claim on intestacy a share in the interest referred to
. '
E
may possess. In the case in hand the property which yielded the
income originally belonged to a Hindu undivided family. On the
.'·therein."· E
14. After the death ofMithu Sao in the year 1961, following the
death ofBuddappa the family which included a widow and females
provisions of Section 6 of the Hindu Succession Act, 1956, a notional
born in the family was represented by Buddanna alone but the partition just before the death ofMithu Sao will have to be presumed.
property still continued to belong to that undivided family and
.There would; therefore, be 8 sharers in the joint family properties and
income received iherefrom was taxable as income of the Hindu
r
the share of each one of them would be as follows: · F
undivided family." ·
F MithuSao 118
12. The position, therefore, prior to the coming into force of the
1/8
~
Hindu Succession Act, 1956 was that the joint family continued on the Bilaso Devi (wife)
death ofFuchan Mahto with Mithu Sao as the sole coparcener and the ..
1/8
Puniya Devl(mother)
joint family properties continued to be!on'g to the family and furthermore 1.
. .Puniya Devi continued to have a share in the prop.erty. Ramnath (son) 118 G.
G l/S
13 .At this stage, tl1e provisions of Section 6 ofthe Hindu Succession Kashinath (son)
Act, I 956 will require a specific notice which is extracted below: Goverdhan (son) 118
"6. Devolution of interest in coparcenary property.- when a male · · Jagdish (son) 118
Hindu dies. after the commencement of this Act, havingat the
· Baldeo (son) 1/8 H
H '(1966) 3 SCR 224 . '-
i
:1· ' .
LI
'1'1'!111
itAM NATH SAO@ RAM NATH SAHU v. GOBERDHAN SAO 821
820 SUPREME COURT REPORTS - [2017] 2 S.C.R.
[RANJAN GOGOi, J.]
' A
conferred upon the Hindu widow the right to a share in the joint
A ' the wife of Mithu Sao is concerned, she
Insofar as Bilso Devi,
. family property as also a right to demand partition like any male
would be entitled to I/8th share of the joint family properties upon the
member of the family. The Hindu Succession Act, 1956 provides
notional partition being given effect to. The share of the widow of a
by section 14(1) that any property possessed by a female Hindu,
Hindu male coparcener following a notional partition has been recognized
whether acquired before or after the commencement of the Act,
by this Court in· Guru pad Khandapva Magdum versus Hirabai
shall be held by her as a full owner thereof and not as a limited · B
Khandappa Magdum and others'. Paragraph 9 and 14 of the· report in
B owner. By restricting the operation of the fiction created by
Gurupad Khandappa Magdum (supra) may be usefully noted herein
ExpJanation I in the manner suggested by the appellant, we shall
below:
be taking a retrograde step, putting back as it were the clock of
"9. The next step, equally important though not equally easy to · social reform which has enabled the Hindu Woman to acquire an
• work out, is to find out the share which the deceased had in the equal status with males in matters of property. Even assuming
coparcenary property because after all, the plaintiff has a I/6th that two interpretations of Explanation I are reasonably possible,
c
c interest in that share. Explanation I which contains the formula we must prefer that interpretation which will further the intention
for determiniiig the share of the deceased creates a fiction by of the legislature and remedy the injustice from which the Hindu
providing that the interest of a Hindu Mistakshara coparcener
. women have suffered over the years."
. shall be deemed to be the share in tbe property that would have [underlining is ours]
been allotted to him if a partition of the property had taken place
15. Next aspect of the case is with regard to the \/8th share of D
immediately before his death. One must, therefore, imagine a state
D Mithu Sao and the devolution of the said share to the surviving members
· of affairs in which a little prior to Khandappa's death, a partition
l of tl1e coparcenary property was effected between him and other
members of the coparcenary. Though the plaintiff. not being a
of the joint family. In this regard, it can be held without any difficulty
that under the proviso to Section 6 of the Hindu Succession Act, 1956
the share ofMithu Sao in the joint family property (\/8th) would devolve
coparcener. was not entitled to demand partition yet. if a partition
. were to take place between her husband and his two sons. she by intestate succession, in the absence ofa will, in the following manner. E
E would be entitled to receive a share equal to that of a son. (see Bilaso Devi I
8'9 ~ I
-12
Mu Ila's Hindu Law. Fourteenth Edition. page 403. para 315). In a
I I
partition between Khandappa and his two sons, there would be • Puniya Devi -12
four sharers in the coparcenary property, the fourth being
8'9
.J_ .J_
Khandappa's wife, the plaintiff. Khandappa would have therefore Ramnath 72 F
8x9
got a I/4th share in ihe coparcenary property on the hypothesis of = _1_
F Kashinath .J_
a partition between himself and, his sons. 8x9 72
xxx xxx xxx .J_
Goverdhan .J_
14. The interpretation which we are placing upon the provisions 8x9 72
of section 6 its proviso and explanation 1 thereto will further the I = I
J agd ish -&x9 -12 G
·legislative intent in regard to the enlargement of the share of female
G heirs, qualitatively and quantitatively. The Hindu Law of I _I_
....,,... D aldeo
8'9 72
Inheritance (Amendment) Act, 1929 conferred heirship rights on
the son's daughter, daughter's daughter and sister in all areas .J_ .J_
Buchwa Devi 72
where the Mitakshara law prevailed. Section 3 df the Hindu 8x9
.J_ .J_
Women's Rights.to Property Act, 1937, speaking broadly, Sarita 72 H
8x9
!1 - \ H • (1978) 3 sec 383
'
I / !' ~ . ,
i1:1
' -
!MM NATH SAO@ RAM NATH SAHU v. GOBERDHAN SAO 821
[RANJAN GOGOi, J.]
conferred upon the Hindu widow the right to a share in the joint A
. family property as also a right to demand partition like any male
member of the family. The Hindu Succession Act, 1956 provides
. by section 14(1) that any property possessed by a female Hindu,
whether acquired before or after the commencement of the Act,
shall be held by her as a full owner thereof and not as a limited ·
8
owner. By restricting the operation of the fiction created by
ExpJanation I in the manner suggested by the appellant, we shall
be taking a retrograde step, putting back as it were the clock of
· social reform which has enabled the Hindu Woman to acquire an
equal status with males in matters of property. Even assuming
that two interpretations of Exp \anation I are reasonably possible, C
we must prefer that interpretation which will further the intention
of the legislature and remedy the injustice from wh.ich the Hindu
. women have suffered over the years."
[underlining is ours]
15. Next aspect of the case is with regard to the I/8th share of D
Mithu Sao and the devolution of the said share to the surviving members
of the joint family. In this regard, it can be held without any difficulty
that under the proviso to Section 6 of the Hindu Succession Act, 1956
the share ofMithu Sao in the joint family property (\/8th) would devolve
by intestate succession, in the absence ofa will, in the following manner.
E
Bilaso Devi _I_ _I_
8x9 72
Puniya Devi I _I_
8x9 72
Ramnath _J_ _J_
8x9 72
F
Kashinath _1_ = _1_
8x9 72
Goverdhan _J_ _J_
8x9 72
J agd ish I = I
-g,9 -12 G
B aldeo I _I_
8x9 72
Buchwa Devi _J_ _J_
8x9 72
Sarita _J_ _J_
8x9 72 H
~
~I
823
RAM NATH' SAO @ RAM NATH SAHU v. GOBERDHAN SAO
822 SUPREME COURT REPORTS. c201112 s.c.R. · !,; [RANJAN GOGOi, J.]
A
_J_ + _lQ_ = 14.76%
~
···j __
I +
A 16. Thus after 1961 Puniya Devi ~eing the widow of Fuchan Mah to Jagdish 72 1152
8
had I/8th plus 1172lh share in the joint family property, nainely, I 0172• + _lQ_ = 14.76%
_L + _J_
111: share. Puniya Devi died in the year I 967 leaving behind her daughter Baldeo 72 1152
8
l Ugni Devi and the children of her predeceased son Mithu Sao. Ugni
j
I B
Devi will be entitled to receive ~ne-half share of Puniya Devi i.e. halfof
10/72'" share i.e. 101144"' share.. The remaining 101144"' share that
BuchwaDevi _Q_
0
+
-· - =
I
72
+ 10
l.152
2.25% B
I ·,, wouid go to the branch ofMithu Sao will have to be divided amongst 8
heirs ofMithu Sao, namely, the widow and the'seven children. Thus, the Sarita _Q_ + _J_ + _lQ_ = 2.25%
1152
!ii! I aforesaid I01144"' share would devolve in the following nianner.' 0 72
= 6.94%
II Ugni Devi l!L c
Bilaso Devi I x ~10_ = 10 . 144
-8- 144 . T152
'I ·c Thus cakulated the share of the appellants would be: .
Ramnath _I_ x _10_ = 10
'I 8 144 T152 14.76 (Ramnath) + 14.76 (Kashinath) + 2.25 (Buchwa Devi)+
Kashinath
I •• 6.94 (LRs. of Ugni Devi)= 38.1%
..L x -1.!L. = -1.!L. .
8 .- 144. 1152 ' 18. In view of the above, it will be necessary to modify the decree D
D Goverdhan ..L x -1.!L. = -1.!L. passed by the learned trial Court as affirmed by the High Court by holding
8 144 1152 . that the appellants - defendants are entitled to 3SJ% share in the joint
Jagdish ..L x = family property instead of37.5% as ordered by the courts below.
-1.!L. -1.!L.
8 144 ,, 1152 19. The appeal consequently is allowed. to the extent indicated
•·/
Baldeo I' x . 10 = 10 above and with the aforesaid modification of the decree passed by the E
-8- 144-. .·. T152
E \ learned trial Court as affirmed by the High Court.
Buchwa Devi I x _10_ = _10_
-8- Appeal aUowed.
144 1152
..,Devika Gujral
'I Sarita ..L x -1.!L. = -1.!L.
i
I.
8 144 1152
i
·p
I 7. Consequently the share of each of the parties would be as
follows:
BilasoDevi _L + _!_ + _lQ_ = 14.76%
8 72 1152
Ramnath _L + ._!_ -1: _lQ_ = 14.76%.
G 8 72 I 152
'•
Kashinath _L + _!_ + _lQ_ = 14.76%
8 72 I 152
'- .
!1
Goverdhan _L + _!_ +- _lQ_ = 14.76% .
1'' i1 -. H 8 .72 1152
- RAM NATH' SAO @ RAM NATH SAHU v. GOBERDHAN SAO 823
· ·;; [RANJAN GOGOi, J.]
~
Jagdish _!_ + _J_ + ..llL. = 14.76% A
8 72 1152
Baldeo _!_ + _J_ + ..llL. = 14.76%
8 72 1152
Buchwa: Devi _Q_ + _J_ + ..llL. = 2.25%
0 72 1.152
Sarita _Q_ + _J_ + ..llL. = 2.25%
0 72 1152
UgniDevi .lQ_ = 6.94%
144 c
Thus cakulated the share of the appellants would be : .
•• 14.76 (Ramnath) + 14.76 (Kashinath) + 2.25 (Buchwa Devi)+
6.94 (LRs. of Ugni Devi)= 38.1%
18. In view of the above, it will be necessary to modify the decree
D
passed by the learned trial Court as affirmed by the High Court by holding
that the appellants -defendants are entitled to 38.1%.share in the joint
family property instead of37.5% as ordered by the courts below.
19. The appeal consequently is allowed to the extent indicated
above and with the aforesaid modification of the decree passed by the
E
learned trial Court as affirmed by the High Court.
;>evika Gujral Appeal allowed.
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