Indian Kanoon - Search engine for Indian Law

CIVIL, APPELLATE JURISDICTION; Civil Appeal NO. 1441 Of From the Judgment & Order dated 26.4.1970 Of the Bombay High Court in Special Civil Application No, 163/1967.

Y.S. Desai and M.N. Shroff for the Appellant, U.R.Lalit and A.G. Ratnaparkhi for the Respondents, The Judgment of the court was delivered by VENKATARAMIH, J. Sham Rao Bhagwant Rao Deshmukh and his son, Narayan Rao Were members of a joint Hindu family governed by the Mitakshara School of law. His wife Sulochanabai and his mother Gangabai alias Tribai Were also the members of that family. The said family owned extensive properties which included agricultural lands situated in fourteen villages. Sham Rao died on June 15, 1957 after the coming into force of the Hindu Successions Act, 1926 (hereinafter referred to as the Act') and on his death his interest in the coparcenary property devolved on his Son, wife and mother in equal shares under section 6 of the Act, such interest being the share that would have been allotted to him if a partition of the family property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. According to the law governing the above family which was governed by the Bombay School under which the mother also was entitled to a share at a partition between her husband and her son equal to that of her son one-third share in the family property could have been allotted to the share of Sham Rao immediately before his death had a partition taken place. That one-third share devolved in equal shares on Narayan Rao, Sulochanabai and Gangabai alias Taibai each inheriting one-ninth share of the family property. They, how ever, continued to live together enjoying the family properties as before. On January 26, 1962 the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 hereinafter referred to as 'the Ceiling Act') came into force. As required by the Ceiling Act, Narayan Rao filed a declaration on behalf of himself, his mother Sulochanabai and his grandmother Gangabai alias Taibai before the Sub-Divisional Officer, Saoner stating that they held in all 305 49 acre of agricultural land and that under a family arrangement entered into on March 30, 1957 they were holding the lands in distinct and separate shares, Narayan Rao holding one-half and the other two holding one-fourth share each and that each of them was entitled to retain 96 acres which was the maximum extent of land which a person in that area could hold after the Ceiling Act came into force. The Sub-Divisional ; officer after enquiry held that the alleged family settlement was not true, Narayan Rao, his. mother and his grandmother were joint in estate and constituted a family within the meaning of that expression as defined in Section 2(1 ]) of the Ceiling Act and the family could not hold agricultural land in excess of one unit of the ceiling area, The Sub- Divisional Officer came to the conclusion that the total area held by the said family on the appointed day was 313.57 acres, and as the said lands were situated in different villages and the ceiling area in all the villages except in Chanakpur village was 96 acres and in Chanakpur village the ceiling area was 108 acres, the total land held by the family was to be converted into 304.57 acres for purposes of the Ceiling Act. He further held that the family was entitled to 96 acres of land out of the said 304 57 acres on the appointed day and as the family had alienated after August 4, 1959 about 44 acres of land in contravention of Section 10(1) of the Ceiling Act, it could retain only 51.16 acres. The remaining extent of land measuring in all 222.32 acres was declared as surplus land which had to be surrendered under the Ceiling Act. Aggrieved by the decision of the Sub-Divisional Officer, Narayan Rao, his mother and grandmother filed an appeal before the Maharashtra Revenue Tribunal questioning the correctness of the said decision and that appeal was dismissed. Against the decision of the Tribunal they filed a petition before the High Court of Bombay under Article 227 of the Constitution Before the High Court the case of family settlement was not pressed but it was contended that since the one-third interest in the family property which could have been allotted to the share of Sham Rao had he demanded a partition immediately before his death had devolved in equal shares on his heirs i.e. his wife, mother and son, the surviving members of the family ceased to- hold the family property as members of a family and, therefore, each of them was entitled to be allowed to retain one unit of the ceiling area under the Ceiling Act. The High Court upheld the above plea. It held that since the one ninth share of Gangabai alias Taibai, the mother of Sham Rao did not exceed the ceiling area, she could retain all the land belonging to her. It further held that Narayan Rao and Sulochanabai were each entitled to 4/9th share of the property and each of them was entitled to retain for himself or herself, as the case may be one unit of ceiling area out of his or her 4/9th share in the family property and only the surplus was liable to be surrendered. The High Court directed the Sub-Divisional Officer to pass fresh orders accordingly in the light of its decision. The State Government has filed this appeal by special leave against the decision of the High Court.

The contention urged before us is that by reason of the death of Sham Rao, the family became disrupted of divided and that Narayan Rao, his mother and his grandmother ceased to be members of a joint Hindu family. Elaborating the said contention the learned counsel for the respondents herein argued that by virtue of the proviso to section 6 of the Act read with Explanation I thereto which purposes of quantifying the interest in the joint family property that devolved on the heirs of a deceased male Hindu required that it should be assumed that a notional partition had taken place in the family immediately prior to the death of the deceased, the female heirs of such deceased Hindu become divided or separated from the family on the death of the deceased. In order to examine the validity of this submission it is necessary to refer to some of the relevant features of a Hindu undivided family and to consider the effect of the provisions of section 6 of the Act on such family.

We have earlier seen that females can be the members of a Hindu joint family. The question now is whether females who inherits a share in a joint family property by reason of the death of a member of the family ceases to be a member of the family. It was very forcefully pressed upon us by the learned counsel for the respondents relying upon the decision of this Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors. (2) that there was a disruption of the family in question on the death of Sham Rao as for the purpose of determining the interest inherited by Gangabai alias Taibai and Sulochanabai it was necessary to assume that a notional partition had taken place, immediately before the death of Sham Rao and carried to its logical end as observed in the above decision, Gangabai alias Taibai and Sulochanabai should be deemed to have become separated from the family. The facts of the above said case were these. One Khandappa died leaving behind his wife Hirabai, two sons and three daughters after the coming into force of the Act. Hirabai filed a suit for partition and separate possession of 7/24th share in the joint family property on the basis of section 6 of the Act. She claimed that if a partition had taken place between her husband and her two sons immediately before the death of her husband Khandappa, she, her husband and two sons would have each been allotted a one-fourth share in the family property and on the death of her husband the one fourth share which would have been allotted in his favour had devolved in; equal shares on her, her two sons and three daughters. Thus she claimed the one-fourth share which had to be allotted in her favour on the (1) [1969] 3 S.C.R. 882.

We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family.A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed.