Kishta Bai vs Ratna Bai and Others

Mr. Gangadhara Rao, J.—What is the quantum of share to which a wife is entitled to, in this State, in a partition of Hindu Mitakshara joint family properties, after the death of her husband intestate, after the Hindu Succession Act, 1956 came into force? That is the main question that falls for consideration in this appeal. I will only state the facts to the extent they are necessary for deciding the questions raised in this appeal. The plaintiff is the appellant. She is the first wife of Lachma Reddy. The 1st defendant is his second wife, the 2nd defendant is the unmarried daughter, and the 3rd defendant is the son of the 1st defendant. The 4th defendant is the daughter of the plaintiff. She is married. The 5th defendant is the mother of Lachma Reddy. Lachma Reddy died in July, 1967. The plaintiff filed the suit for partition of the plaint A, B and C schedule properties and for separate possession of her 1/6th share in those properties. ''A'' schedule properties are lands at Amdapur, Manthani and Pipri; ''B'' schedule is a house and shop at Manthani; and ''C'' schedule is cash and Life Insurance Policy amount. Her case is that they are the self-acquired properties of late Lachma Reddy. The 1st defendant contended that they are the joint family properties of Lachma Reddy; besides she stated that survey number 212/4, 5, 6 and 7 of Amdapur village, and survey number 94 of Manthani village of Armoor Taluk, which were not included in the plaint schedule, were also the joint family properties and liable for partition. In addition, she claimed that Rs. 20,000/-should be provided for the marriage expenses of the 2nd defendant.

The learned Subordinate judge, on a consideration of the evidence, found that the plaint schedule properties were joint family properties, but not the self acquired properties of late Lachma Reddy, that the lands at Amdapur and Manthani villages mentioned in the written statement, were also joint family properties liable for partition, that Rs. 14,000/-should be provided for the marriage expenses of the 2nd defendant, and that the share of the plaintiff in the joint family properties was 1/20th but not 1/6th.

In this appeal, it is submitted by Sri B. Anjaneyulu the learned counsel for the appellant, that the plaint schedule properties are the self-acquired properties of Lachma Reddy, but not the joint family properties. Lachma Reddy was the Asaldar Mali Patel of the village getting a salary of Rs. 33/-per month and Rs. 300/-a year on revenue collections. He was also doing abkari and beedi leaves contracts now and then. The evidence of D. Ws. 1 to 6 shows that Lachma Reddy inherited about 30 acres of wet land and a house from his father, that he sold them and purchased the suit lands, and the only ancestral property left unsold is about 11/2 acres of wet land at Manthani village. The plaintiff had deposed that she was not aware of the extent of the land her husband had inherited from his father, nor as to how and when her husband bad acquired the suit lands. The income received by him as Mali Patel was meagre and it would have been hardly sufficient to maintain his family. It is true that he was doing some contracts now and then, but we have no evidence as to the income he had received from them. There was sufficient nucleus of joint family property inherited by him from his father. In these circumstances I have no hesitation in holding that the suit properties are the joint family properties, but not the self acquired properties of late Lachma Reddy.

It was submitted that the lands in survey number 212/4, 5, 6 and 7 of Amdapur village, and survey number 94 of Manthani village of Armoor Taluk were given on patta to plaintiff''s brother, Ganga Reddy as a political sufferer and, therefore, they could not form the subject matter of partition. But, there is evidence to show that they are the properties of Lachma Reddy. Pahanies, Exs. B-2, B-3 and B-5 mention that Lachma Reddy was the pattadar and was in possession of survey number 94 of Manthani village. Ex. B-4 is the Khasra Pabani of Amdapur village for 1954-55. It shows that Lachma Reddy was in possession of survey number 212/4 and 5. Exs. B-7 to B-11 the pahanies for 1963 to 1968 mention that Lachma Reddy was the pattadar and in possession of survey number 212/4 and 5. Exs. A-11 and A-12, the pahanies for 1968 to 1970 show that Lachma Reddy was the pattadar and was in possession of survey number 212/4 and 5. Exs. "A-3 the pahanies mention that Lachma Reddy was in possession of survey number 212/6 and 7 by virtue of his purchase. Ex. B-12 is the sale deed under which Lachma Reddy purchased survey number 212/6 & 7 from Ramachandrareddy & Ganga Ram. Ramachandra Reddy as D.W. 5. and one of the attestors, Venkatanarasaiah as D. W. 7 speak to the purchase. This evidence establishes that Lachma Reddy was the owner of survey number 94 of Manthani village and survey numbers 212/4, 5, 6 and 7 of Amdapur village. In fact, in this appeal Ganga Reddy had filed a petition to implead him as a party to this appeal, but I had dismissed ft, If he is the owner of these porperties, he is not precluded from pursuing the remedies available to him, to establish his rights.

Next, it was submitted that the provision of Rs. 14,000/- for the marriage expenses of the 2nd defendant is exorbitant. When the 4th defendant, the daughter of the plaintiff was married, ten tolas of gold was given to her. D. W. 6 had deposed that considering the status of the family, about Rs. 25.000/-to Rs. 30,000/-would be required for her marriage. He had stated that he had deposited Rs. 16,000/-for the marriage of his eldest daughter. Since the 4th defendant was given ten tolas of gold, naturally, the 2nd defendant also should be given the same gold. Its value was estimated at Rs. 5,000/-by the learned Subordinate Judge. The other expenses were estimated by him at about Rs. 6,000/- to Rs. 8,000/-, He gave Rs. 14,000/-. In the circumstances of the case, I do not consider that the provision of Rs. 14,000/- for marriage expenses of 2nd defendant is excessive.

Lastly, relying upon the decision of the Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others, the learned counsel for the appellant contended that if Lachma Reddy effected a partition during his ''lifetime, he would have got one share, his son, Ganga Reddy (3rd defendant) one share, and his two wives (Plaintiff and 1st defendant) together would have got one share, and after the death of Lachma Reddy, his 1/3rd share should be divided into five shares between his son, two daughters, mother and two wives together. So, putting together 1/3rd and 1/5th shares, both the wives get 2/5th share and the share of the plaintiff would be I/10th share.

Section 6 of the Hindu Succession Act, which applies to devolution of interest in coparcenary reads as follows:

"When a male Hindu dies after the commencement of the Act, having at (he 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 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 sec. 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."

(We are not concerned with Explanation 2 in this case).

Lachma Reddy died on 16th July, 1967, that is, after the Act had came into force. I have already held that the properties are the joint family properties. Since Lactams Reddy left him surving his widows (plaintiff and the 1st defendant) mother (5th defendant) and two daughters (defendants 2 and 4), the proviso is attracted and his interest in the coparcenary property doevolves by testamentary or intestate succession under the Act, but not by survivorship. Admittedly, he died intestate. In view of Explanation I, his interest 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. If such a partition had taken place, he would have been entitled, according to the Mitakshara Hindu law rule prevailing in this State, to half a share and his son, the 3rd defendant, to the remaining half a share. No share would have been given to his wives. After his death, in view of Sections 8, 9 and 10 of the Act, his half a share devolves upon his heirs, that is, his son (3rd defendant), two daughters (defendants 2 and 4), two widows (Plaintiff and 1st defendant), and mother (5th defendant). Defendants 2 to 5 each take 1/5th share, and the plaintiff and the 1st defendant together take 1/5th share in the half share of Lachma Reddy. It means, each of the sharers gets 1/10th and the plaintiff gets 1/20th for her share.

Gurupad vs. Hirabah was an appeal from the decision of the Bombay High Court. The facts are, one Khandappa died on June, 27, 1960 leaving him surviving his wife, Hirabai, who is the plaintiff two sons Gurupad and Shivpad, who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5. In 1962, Hirabai filed a suit for partition and separate possession of a 7/24th share in two houses, land, two shops and movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons. If a partition were to take place during Khandappa''s lifetime between himself and his two sons, the plaintiff would have got a 1/4th share in the joint family properties, the other three getting a 1/4th share each. Khandappa''s 1/4th share would devolve upon his death on six sharers; the plaintiff and her five children, each having a 1/4th share therein. Adding 1/4th and 1/24th, the plaintiff claimed 7/24th share in the joint family properties. The defendants 2 to 5 admitted the plaintiff''s claim, the suit having been contested by the 1st defendant, Gurpad. He contended that the suit properties were not the joint family properties, but were the self-acquired properties of Khandappa, and on the date of Khandappa''s death in 1960, there was no joint family in existence. He alleged that Khandappa had effected a partition of the suit properties between himself and his two sons in December. 1952 and December, 1954 and that by a family arrangement dated 31st March, 1965, he had given directions for disposal of the share which was reserved by him for himself in the earlier partitions. Hence he contended that there was no question of fresh partition. The trial Court rejected the defendant''s case that the properties were the self-acquired properties of Khandappa, and that he had partitioned them during his lifetime.

Upon that Boding, the plaintiff became entitled to a share in the joint family properties, but following the decision of the Bombay High Court in Shiramabai V. Kalgonda, AIR 1964 Bom. 263 66 Bom LR 351, the trial judge limited that share to 1/24th, refusing to add 1/4th and 1/24th together. Against that decree, the 1st defendant filed an appeal in the Bombay High Court and the plaintiff filed Cross objections. A Division Bench of the Bombay High Court dismissed the 1st defendant''s appeal and allowed the plaintiff''s Cross objections by holding that the suit properties belonged to the joint family, that there was no prior partition, and that the plaintiff was entitled to a 7/24th share. Thereupon, the 1st defendant tiled an appeal in the Supreme Court. Chandrachud C.J., speaking for the Court, after referring to Explanation I to Section 6 observed that,

"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 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 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 Vs. Kalgonda Bhimgonda and Others, which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred".

"We see no justification for limiting the plaintiff 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 I. 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".

His Lordship further observed,

"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 corparcenary 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 lo be" the share in the property that would have been allotted to him if a partition that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had infact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable....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 on; another and had received a share in the partition which bad taken place during the life-time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in the actual partition cannot generally be recalled. The inevitable corollary of this postistion 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 heor she received or must be deemed to have received In the notional partition."

Finally His Lordship approved Rangubai Vs. Laxman Lalji Patil, and Sushilabai Ramchandra Kulkarni Vs. Narayanrao Gopalrao Deshpande and Others, In the result, he confirmed the finding of the Bombay High Court that the plaintiff was entitled to a 7/24th share.

Strongly relying on this decision, the learned counsel for the appellant has submitted that I must presume that there was a partition of the family before the death of Lachma Reddy and in that partition, Lachmi Reddy takes one share; his son, the 3rd defendant, takes one share, and the two widows, the plaintiff and the 1st defendant, together take one share and after the death of Lachma Reddy, his 1/3rd share should be again divided into five shares, that is, 1st defendant and plaintiff take 1/6th share, and defendants 2, 3, 4 and 5 each take 1/5th share. Thus, the plaintiff and the 1st defendant together take 1/3rd plus 1/15th=2/5th and the plaintiff''s share therein comes to 1/10th.

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 obsolute owing to the influence of the Smritichandrika and the Sarasvati Vilasa which follows it and Apararka. The Smritichandrika holds such a share to be merely an assignment by way of maintenance. Elesewhere, 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".

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). Infact, Mulla was referred to by Chandrachud C.J., in paragraph 9 of his judgment. But, that is not the position in Southern India. Mulla has stated at page 403, that "in Southern India, the practice of allotting shares upon partition to females has long since become obsolute" At page 405, 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, para 12-17. (See also illustration at page 853).

Reference can also be made to Hindu Law by N.R. Raghavachariar (sixth edition) at page 416: Venkatammal vs. Andyappa ILR 6 Mad 130 Mart vs. Chinnammal Subramanian ILR 8 Mad 107, Chetti vs. Arunachelam Chetty ILR 28 Mad 1 and Kanyalal vs. Controller of estate duty.

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 bad effected partition during his life time, his two wives, that is, the plaintiff and the 1st defendant would not have been given a share. Only the 3rd defendant 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 the 1st defendant 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 Section 4 of the Hindu Succession Act, I cannot go by the Hindu Law Rule prevailing in this Slate, and it must be understood to have been overruled. Section 4 reads as follows; -

''4. (1) Save as otherwise expressly provided in this Act:-

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part that 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 foldings or for the fixation of ceiling or for the devolution of tenancy rights in respect of such holdings".

But that section cannot be invoked because the Act does not make any provision that if a lather were to effect a partition with his sons during his lifetime be 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. In the result, I see no grounds to interfere with the judgment of the learned Subordinate Judge, and dismiss this appeal with costs.