TaxTMI 
TaxTMI 
1978 (4) TMI 98
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 1/24th share therein. Adding 1/4th and 1/24th, the plaintiff claims a 7/24ths share in the joint family properties. That, in short, is the plaintiff's case. Defendants 2 to 5 admitted the plaintiff's claim, the suit having been contested by defendant 1, Gurupad, only. He contended that the suit properties did not belong to the joint family, that they were Khandappa's self-acquisitions and that, 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 March 31, 1955, he had given directions for disposal of the share which was reserved by him for himself in the earlier partitions. There was, therefore, no question of a fresh parti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 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 a 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." The Hindu Succession Act came into force on June 17, 1956. Kandappa h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e claimant while Expln. 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. The son, daughter and widow are mentioned as heirs in class 1 of the Schedule and, therefore, by reason of the provisions of s. 8(a) read with the 1st 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 whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Expln. 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. The fiction created by Expln. 1 has to be given its due and full effect as the fiction created by s. 18A(9)(b) of the Indian I.T. Act, 1922, was given by this court in CIT v. S. Teja Singh [1959] 35 ITR 408 ; AIR 1959 SC 352; (1959] Suppl. (1) SCR 394. It was held in that case that the fiction that the failure to send an estimate of tax on income under s. 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee under s. 22 and that he had failed to comply with it. In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh's case, a missing step had to be supplied which was not provided for by s. 18A(9)(b), namely, the issuance of a notice under s. 22 and the failure to comply with th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut 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 co....