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Hindu Succession Act, 1956: s.6, Explanation 1-Devolution of interest in coparcenary property-Father and his adopted son constituting Mitakshara coparcenary-Father having two daughters also-On the death of father, daughters claiming 2/3 share in property-Held, in view of s.6 and Explanation 1 thereto, notional partition of the suit properties between father and his adopted son has to be assumed immediately before the death of the father and that being so his undivided interest in suit property, which was half, devolved on his death upon his three children, i.e. the adopted son and the two daughters in equal proportion-Adopted son would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession-Thus, each of the two daughters was entitled to one-sixth share in the property and the remaining properties would go to the adopted son-Hindu Law-Mitakshara coparcenary-Devolution of interest-Interpretation of statutes-Statutory fiction-Interpretation of. State of Bombay v. Pandurang Vinayak Chaphalkar & Ors., [1953] 4 SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR (1978) SC 1239, relied on. East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) Appeal Cases 109, referred to. Mulla, Principles on Hindu Law, referred to. =Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Rani Masheshwari and Pratibha Jain for the Appellants. Aruneshwar Gupta, Gen. Naveen Kumar Singh, Mukul Sood, Kumar Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh for the Respondents.

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CASE NO.:

Appeal (civil) 4171 of 2006

PETITIONER:
Anar Devi and Ors

RESPONDENT:
Parmeshwari Devi and Ors

DATE OF JUDGMENT: 18/09/2006

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

JUDGMENT:
JUDGMENT
O R D E R

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

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

Provided that, if the deceased had left surviving him a 
female relative specified in Class I of the Schedule or a male 
relative, specified in that class who claims, through such female 
relative, the interest of the deceased in Mitakshara coparcenary 
property shall devolve by testamentary or intestate succession, as 
the case may be, under this Act and not by survivorship.

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 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."

Reference in this connection may be made to a passage from the most 
authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page 
250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author 
stated that "Explanation I defines the expression 'the interest of the deceased in 
Mitakshara coparcenary property' and incorporates into the subject the concept of a 
notional partition. It is essential to note that this notional partition is for the purpose of 
enabling succession to and computation of an interest, which was otherwise liable to 
devolve by survivorship and for the ascertainment of the shares in that interest of the 
relatives mentioned in Class I of the Schedule. Subject to such carving out of the 
interest of the deceased coparcener the other incidents of the coparcenary are left 
undisturbed and the coparcenary can continue without disruption. A statutory fiction 
which treats an imaginary state of affairs as real requires that the consequences and 
incidents of the putative state of affairs must flow from or accompany it as if the 
putative state of affairs had in fact existed and effect must be given to the inevitable 
corollaries of that state of affairs." 
The learned author further stated that "the operation of the notional partition 
and its inevitable corollaries and incidents is to be only for the purposes of this section 
namely, devolution of interest of the deceased in coparcenary property and would not 
bring about total disruption of the coparcenary as if there had in fact been a regular 
partition and severance of status among all the surviving coparceners."
According to the learned author, at page 253, the undivided interest "of the 
deceased coparcener for the purpose of giving effect to the rule laid down in the 
proviso, as already pointed out, is to be ascertained on the footing of a notional 
partition as of the date of his death. The determination of that share must depend on 
the number of persons who would have been entitled to a share in the coparcenary 
property if a partition had in fact taken place immediately before his death and such 
person would have to be ascertained according to the law of joint family and partition. 
The rules of Hindu law on the subject in force at the time of the death of the 
coparcener must, therefore, govern the question of ascertainment of the persons who 
would have been entitled to a share on the notional partition."
In the case of State of Bombay vs. Pandurang Vinayak Chaphalkar & 
Others; 1953 (4) SCR 773, this Court, after referring to, with approval, the oft-
quoted dictum of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough 
Council (1952) Appeal Cases 109, has laid down the manner in which statutory 
fiction shall be construed and at pages 778 and 779 observed thus:-
 "When a statute enacts that something shall be deemed to have 
been done, which in fact and truth was not done, the court is 
entitled and bound to ascertain for what purposes and between 
what persons the statutory fiction is to be resorted to and full effect 
must be given to the statutory fiction and it should be carried to its 
logical conclusion. [Vide Lord Justice James in Ex parte Walton : In 
re Levy [17 Ch. D. 746, at p. 756]]. If the purpose of the statutory 
fiction mentioned in section 15 is kept in view, then it follows that 
the purpose of that fiction would be completely defeated if the 
notification was construed in the literal manner in which it has been 
construed by the High Court. In East End Dwellings Co. Ltd. v. 
Finsbury Borough Council [[1952] A.C. 109], Lord Asquith while 
dealing with the provisions of the Town and County Planning Act, 
1947, made reference to the same principle and observed as 
follows :- 
"If you are bidden to treat an imaginary state of affairs 
as real, you must surely, unless prohibited from doing 
so, also imagine as real the consequences and 
incidents which, if the putative state of affairs had in 
fact existed, must inevitably have flowed from or 
accompanied it. ....The statute says that you must 
imagine a certain state of affairs; it does not say that 
having done so, you must cause or permit your 
imagination to boggle when it comes to the inevitable 
corollaries of that state of affairs." 
The corollary thus of declaring the provisions of section 25 of the 
Bombay General Clauses Act applicable to the repeal of the 
ordinance and of deeming that ordinance an enactment is that 
wherever the word "ordinance" occurs in the notification, that word 
has to be read as an enactment."

In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa 
Magdum, AIR 1978 SC 1239 at page 1243 it has been laid down by this Court as 
under:
"What is therefore required to be assumed is that a partition had in 
fact taken place between the deceased and his coparceners 
immediately before his death. That assumption, once made, is 
irrevocable. In other words, the assumption having been made 
once for the purpose of ascertaining the shares of the deceased in 
the coparcenary property, one cannot go back on that assumption 
and ascertain the share of the heirs without reference to it. The 
assumption which the statute requires to be made that a partition 
had in fact taken place must permeate the entire process of 
ascertainment of the ultimate share of the heirs, through all its 
stages All the consequences which flow from a real partition 
have to be logically worked out, which means that the share of the 
heirs must be ascertained on the basis that they had separated 
from one another and had received a share in the partition which 
had taken place during the lifetime of the deceased."Thus we hold that according to Section 6 of the Act when a coparcener dies 
leaving behind any female relative specified in Class I of the Schedule to the Act or 
male relative specified in that class claiming through such female relative, his 
undivided interest in the Mitakshara coparcenary property would not devolve upon the 
surviving coparcener, by survivorship but upon his heirs by intestate succession. 
Explanation 1 to Section 6 of the Act provides a mechanism under which undivided 
interest of a deceased coparcener can be ascertained and, i.e., that the interest of a 
Hindu Mitakshara coparcener shall be deemed to be the share in the property that 
would have been allotted to him if a partition of the property had taken place 
immediately before his death, irrespective of whether he was entitled to claim partition 
or not. It means for the purposes of finding out undivided interest of a deceased 
coparcener, a notional partition has to be assumed immediately before his death and 
the same shall devolve upon his heirs by succession which would obviously include 
the surviving coparcener who, apart from the devolution of the undivided interest of 
the deceased upon him by succession, would also be entitled to claim his undivided 
interest in the coparcenary property which he could have got in notional partition. 
In the case on hand, notional partition of the suit properties between Nagarmal 
and his adopted son Nemi Chand has to be assumed immediately before the death of 
Nagarmal and that being so Nagar Mal's undivided interest in the suit property, which 
was half, devolved on his death upon his three children, i.e., the adopted son Nemi 
Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the 
adopted son, would get half of the entire property which right he acquired on the date 
of adoption and one third of the remaining half which devolved upon him by 
succession as stated above. This being the position, each of the two plaintiffs was not 
entitled to one-third share in the suit property, but one-sixth and the remaining 
properties would go to the adopted son, Nemi Chand. 
 Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one 
in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and 
from the date of adoption, a coparcenary was constituted between the father and the 
adopted son. Upon the death of Nagar Mal, the property being ancestral, the half 
undivided interest of Nagar Mal therein devolved by rule of succession upon his three 
heirs, including Nemi Chand. This being the position each of the daughters would be 
entitled to one-sixth share in the suit properties and the remaining would go to the 
heirs of Nemi Chand, since deceased.
 Accordingly, the appeal is allowed, impugned judgments are set aside and suit 
for partition is decreed to the extent of one-sixth share of each of the two plaintiffs and 
the defendants, i.e., heirs of Nemi Chand shall be entitled to the remaining suit 
properties. Let a preliminary decree be, accordingly, drawn up and steps for 
preparation of final decree be taken by appointment of a pleader commissioner.
No costs.
C.A. No. 4172 of 2006 @ S.L.P. (C) No. 19015 of 2004:
 Heard learned counsel for the parties.
 Leave granted.
 In view of the order in C.A. No. 4171 of 2006 above, the appeal is allowed, the 
impugned judgment is set aside and writ petition filed before the High Court is 
dismissed.
 No costs.

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