•

GURUPAD KHANDAPPA MAGDUM

v.

HIRABAI KHANDAPPA MAGDUM AND ORS.

April 27, 1978

[Y. V. CHANDRACHUD, C.J., P. N. SHINGHAL &

V. D. TuLZAPURKAR, JJ.]

Hindu Succession Act (Act 30 of 1956), Section 6 Explanation 1-Inter­

pretation of-Widow's share mus

1 be ascertained by adding the share to which

she

is entitled at a notional portion during her

husb'and's life time and the

share she would get

in her husband's interest upon his death.

Khandappa Sangappa Magdum died on Jnne 27,

1960 leaving behind, his

widow Hirabai, two sons Gurupad and Shivapad and three daughters. On

November, 6, 1952 Hirabai filed special civil suit No. 26/53 for partition and

separate possession of a 7 /24 share in two houses, a. land, two shops and mov-

ables

on the basis that these properties belonged to the joint family consisting of

her husband, and their two sons.

The· case of the, plaintiff was that if a parti-

tion were to

take place during Khandappa's life time between himself and his

two sons the plaintiff would have got a

!th share ieach on the death of Khan­

dappa. Her further case was that Khandappa's tth share could devolve upon

his death on six sharers, entitling her to 1

/24th share besides. The trial Court

found that

the suit properties belonged to the joint family and that there was

no prior partition. Following the judgment

vf the Bombay High Court in

Shiramabai Bhim{!onda v. Kalgonda [1963] 66 Bom. L.R. 351, limited her share

to only 1 /24th and refused to add Hh and I/24th together. Dismissing the

defendant's appeal 524/66 and allowing the cross-objections of the plaintiff,

the Bombay High Court, by its judgment dated March 19, 1975 following 68

Born. L.R. 74 which overruled 66 Born. L.R. 351, held that the plaintiff \vas

entitled to 7 /24th share.

Dismissing the appeal by special leave, the

Court

HELD:

1. (a) What Section 6 of the Hindu Succession Act. 1956 deals

with

is the devolution of the interest which a male Hindu has

in a ~.fitakshara

propt."rty at the time of his death. The proviso to Section 6 contains a formula

for

fixing the share of

thi.: claimant, while Explanation 1 contains a formula for

deducing the share of the deceased. [765 H, 766 A-BJ

(b) Explanation 1 which contains the formula for determining the share

of

the deceased creates a fiction by providing 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. Whether a partition had actually taken place

between

the plaintiff's husband and his sons is beside the point for the purposes

of Explanation 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 Explanation 1 has to

be given its due and full effect. [766 E-F, 767 C-D]

Co1111nissioner of Income Tax, Delhi v. S. Teja Singh, [1959] Suppl. S.C.R.

39; applied.

East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109/

132, quoted with approval

A

B

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2. (a) In order to ascertain the share of heirs in the property of a deceased

coparcener

it is

necessa.ry i~ the very nature of things, and as they very first step H

to ascertain the share of the deceased in the coparcenary property. For, by

dong that alone can one determine the extent .ofl the claimant's share. Expla~

nation I to section 6 resorts to the simple expedient, undoubtedly fictional, that

14-315SCI/78

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762 SUPREME COURT REPORTS [1978] 3 S.C.1'..

the in.terest of a Hindu Mitakshara coparcener "shall be deemed to oo·' the

share m the property that would have been allotted to him if a partition of that

pro~rty had taken place immediately before his death. What is therefore

requued to be ~ssumed is that. a p~tion had in fact taken place between the

deceased and. h~s coparcencrs 11.·med1ately before his death. That assumption,

once made,

1s 1rrevocable.. In other words, the assumption having been made

once for the purpose of ascertaining the share 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. .

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 work­

ed 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

parti­

tion which had taken place during the life time of the deceased. The allot­

ment of this share

is not a processua1 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 coparcenary property at the time of his death,

in addition to the share which he or she received or must be deemed to have

received in the notional partition. [768

B-G]

(b) This interpretation furthers the legislative intent in regard to the

enlar­

gement of the share of female heirs, qualitatively and quantatively. Even

assuming that two interpretations of Explanation I are reasonably possible,

Courts must prefer that interpretation which will further the intention of the

legislature and remedy the injustice from which the Hindu women have suffered

over the years.

By restricting the operation of the fiction created by Explana­

tion

I in the manner suggested by the appellant, Courts shall be

takiing a retro­

grade step, putting back as it were the clock of social .reform which has enabled

the Hindu women to acquire an equal status with males in matters of pro­

perty. [768 G. 769 A-BJ

Rangubhai La/ji v. Laxn1an Lalji, 68 (Born.) L.R. 74; Sushilabai Ramachandra

Kulkarni v. Narayanarao Gopalrao Deshpande and Ors .. A.I.R. (1975) Born.

257; Vidyaben v. Jagadislzchandra N. Bhatt, A.LR. 1974 Guj. 23; Ananda v.

Haribandu, A.J.R. 1967 Orissa 194; approved.

F 3. In the instant case,

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H

(a) There is no justification for limiting the plaintiff's share to 1/24th by

ignoring the tth share which she would have obtained had there been a parti­

tion during her husband's life time between him and his two sons. In a parti­

tion 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 !th share in the coparcenary property

on the hypothesis

of a partition between himself and his sons.

r766 G-H. 767 B-CJ

(b) By the application of the normal rule prescribed by Section 6 of the

Hindu Succession Act, 1956, Khandappa's interest in the coparcenary property

would devolve by survivorship upon the surviving members of the coparcenary 1nd not in accordance with the provisions of the Act. But, since the widow

,nd daughter are amongst the female relatives specified in class I of the Sche­

lule to the Act and Khandappa died leaving behind a wido\v and dau~hters,

he proviso to section 6 comes into play and the normal rule is excluded.

Khandappa's interest in the coparcenary property would therefore devolve.

according to the proviso, by intestate Mtccession under the Act and not by

survivorship. Testamentary succession is out of question as the deceased had

not made a testamentary disposition though, under the explanation to section

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G. K. MAGDUM v. H. K. MAGDUM (Chandrachud, C.J.) 763

30 of the Act, the interest of a male Hindu in Mitakshara coparcenary pro- A

perty is capable of being disposed of by a will or other testamentary disposi-

tion. [765 E-Gl

(c) The plaintiff's share as determined by the application of the rules. of

intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession

Act will be 1/6th. The deceased Khandappa died leaving behind him two

sons, three daughters and a widow. The son, daughter and wido\v are me~­

tioned as heirs in class I of the Schedule and therefore, by reason of the prov1-

-sions of section 8(a) read with the 1st clause of section 9, they take simul- B

tmaeously and to the exclusion of other heirs. As b;:tween them the two sons,

the three daughters and the \Vidow will take equally. each having one share in

the deceascd's property under section 10 read \Vith Rules I and 2 of that

section. [766-C-Dl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 187.S of 1975.

Appael by Special Leave from the Judgment and Order dated the

19th March, 1975 of the Bombay High Court in First Appeal No.

524 of 1966 from original decree.

R. B.

Datar for the Appellant.

T'. N. Ganpu/e and (Mrs.) V. D. Khanna for the respondent.

The Judgment

of the Court was delivered by CHANDRACHUD, C.J. It will be easier, with the help Jf !he foUow­

ing pedigree to understand the point involved in this appeal

Khandappa Sangappa Magdun1

Hirab2.i (PlaintifT)

I

. I I I '

Gurupad B1yawwa Bhagirathibai Dhrr.di.itai Shivapa'.d

(Doft. I) (Doft. 3) (Deft. 4)1 (Deft. 5) (Deft. 2)

KhanJappa died on June 27, 1960 leaving him surviving his wife

Hirabai, who is the plaintiff, two sons Gurupad and Shivapad, who

are defondants l and 2 respectively, and three daughters, defendants

3 to

5.

On November 6, 1962 Hirabai filed special civil suit No. 26

of 1963 in the co"rt of the Joint Civil Judge, Senior Division, Sanrli

for partition and separate possession of a 7 /24th share in two houses,

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a land, two

shops a·nd movables on the hasis that these properties

belonged to the

joint family consisting of her husband, herself and

their two sons.

H 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 G

a J /4th share each. Khandappa's l/4th share would devolve. upon •·i

his death on six sharers, the plaintiff and her five children each ·

having a I/24th share therein. Adding 1/4th and l/24th the

plaintiff claims a 7 /24th share in the joint family properties. That in

short, is the plaintiff's case. '

Ddendants 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-requisitions and that, on the date

'or Khandappa's

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764

SUPREME _COURT REPORTS [1978] 3 s.c.R.

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 partition. That, in short,

is the case of defendant 1.

The trial court by its judgment dated July 13, 1965 rejected

defendant 1 's case that the properties were

Khandapp;i's self -acquisi­

tions and that he had partitioned them during his lifetime. Upon

that finding the plaintiff became indisputably entitled to a share in the

joint family prop~rties but, following the judgment of the Bombay High

Court in Shiramabai Bhimgonda v. Kalgonda(1

1

) the learned trial judge­

limited that share ta l/24th, refusing to add. l/4th and 1 /24th to­

gether. As against that decree, defendant 1 filed first appeal No. 524

of 1966 in the B9mbay High Court, while the plaintiff filed cross­

objections. By a judgment dated March 19, 1975 a Divis10n Bench

of the High Court dismissed defendant 1 '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 plain­

tiff is entitled to a 7,124th share. Defendant I has filed this appeal'

against the High Court's judgment by special leave.

Another Division Bench

of !he Bombay High Court in Rangubai

Lalji

v. Laxman

Lalji(') had already reconsidered and dissented from

~arlier Division Bench judgment in Shiramabai Bhimgonda.(

1

) ln

E these two cases, the judgment of the. Bench was delivered by the same

learned Judge, Patel J.

On further consideration the learned Judge

felt that Shiramabai(

1

)

was not fully argued and was incorrectly

decided and that

on a true view of law, the widow's share must

be·

ascertained by adding the share to which she is entitled at a notional

partition during her husband's life time and the share which she would

get in her husband's interest upon his death. In the judgment under

F appeal, the High Court has based itself on the judgment in Rangubai

Lalji(') endorsing indirectly the view that Shiramabai("i) was incor­

rect_ly decided.

H

Since the view of the High Court that the suit properties belonged

to the joint family and that there was no prior partition is well-founded

and is not seriously disputed, the decision of this appeal rests on the

interpretation of Explanation I to section 6

of the Hindu Succession

Act,

(30 of 1956). That section reads thus:

"6. When a male Hindu dies after the commencement

of this Act, having at the time

of his death an

interest in a

Mitakshara copar'cenary property,

his interest in the property

(I) (1963) 66 Born. L.R. 351.

(2) 68 Born. L.R. 74.

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<G. K. MAGDUM v. H.K. MAGDUM (Chandrachud, C.J.) 765

: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 survivi11g a

.female relative specified in class I of the Schedule or a male

relative

specified in that class who claims through such a

female relative, the interest of the deceased in the Mitak­

shara 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 imme­

diately 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

~hare in the interest referred to therein."

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The Hindu Succession Act came into force on June 17 1956,

Kliandappa having

died after the commencement of that Act,' to wit

in 1960, and since he had at the time of his death an interest in Mita­

kshara coparcenary property, the pre-conditions of section 6 are

satisfied and that section

is squarely attracted. By the application of E

the normal rule prescribed

by that section, Khandappa's interest in

the coparcenary property would

devolve by survivorship upon the

·surviving members of the coparcenary and not in accordance with the

provisions

of the Act. But, since the widow and daughter are amongst

the female relatives specified in

class I of the Schedule to the Act

and Khandappa

died leaving behind a widow and daughters, the pro­

viso to, section 6 comes into play and the normal rule is excluded.

P

Khandappa's interest in the coparcenary property would therefore

devolve, according

to the proviso, by intestate succession under the

Act and not

by survivorshop. Testamentary successive is out of

question

as the deceased had not made a testamentary disposition

though under the explanation to section

30 of the Act, the interest of

a male Hindu in Mitakshara coparcenary property

is capable of being

disposed

of by a will or other testamentary disposition. G

There

is thus no dispute that the normal rule provided for by

·section 6 does not apply, that the proviso to that section is attracted

and that the decision

of the appeal must turn on the meaning to be

given

to Explanation 1 of section 6. The interpretation of that Ex­

planation is the subject-matter

of acute controversy between the parties.

Before considering the implications of Explanation

1, it is necessary

to remember that what section 6

deals with is devolution of the

inter­

est which a male Hindu has in a Mitakshare coparcenary property at

H

766 SUPREME COURT REPORTS [1978J 3 S.C.R.

A the time of his death. Since Explanation I is intended to be explana-

,

tory. of the provisions contained in the section, what the Explanation

provides has

to be correlated to the subject matter which the section

itself deals with.

In the instant case the plaintiff's suit based as it

is on the provisions of section

6, is essentially a claim to

~btain a share "'"

in the interest which her husband had at the time of his death in the

B

coparcenary property. Two things become necessary to determine

for the purpose of giving relief to the plaintiff. One, her share in

CL

her husband's share and two, her husband's own share in the copa<-

~

/

cenary property. The proviso to section 6 contains the formula for

'

fixing the share of the claimant while Explanation 1 contains a for-

mula for deducing the share of the deceased. The plaintiff's share,

r"-.~ by the application of the proviso, has to be determined according to

c

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 sections 8, 9 and I 0 of the

Hindn Succession Act. The deceased Khandappa died leaving be-

hind him two sons, three daughters and a

widow. The son, daughter

and a widow are mentioned as heirs

in class I of the Schedule and

therefore, by reason of the provisions of section 8 (a) read with the

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!st clause of section 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

ooe share in the deceas-

ed's property under section 10 read with Rules 1 and 2 of that section.

·Thus, whatever be the share of the deceased in the coparcenary pro-

tr

perty, since there are six sharers in that property each having an

equal share, the plaintiff's share therein

will be I/6th. .,

E

The next step, equally important though not equally easy to work

~

out, is to find out the share which the deceased had in the coparcenary

property because after all, the plaintiff has a I/6th interest in that

share. Explanation I which contains the formula for determining

the share of the deceased creates a fiction by providing that the ;nter-

F

est 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 immediatelv hefore his Jeath. One •

must, therefore. imagine a state of affairs in which a little prior to

·-;( Khandappa's death, a partition of the conarcenarv property was effec-

ted between him and other members of the coparcenary. Though the

plaintiff, not being a coparcener,

was not entitled to demand partit;

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yet, if a partition were to take place betwee·' her husband <:nd his

J. 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

th~rcfore •

got a 1/ 4th share in the coparcenary property on the hypothesis of a

H

partition between himself and his sons.

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Two things are thus clears : One, that in a partition of the copar-

cenary prope)'ty Khandappa would have obtained a 114th share and

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G. K. MAGDUM v. H.K. MAGDUM (Chandrachud, C./.) 767

two, that the share of the plaintiff in the 1/4th share is l/6th, that is A

to say,

l/24th. So far there is no difficulty. The question which

poses a somewhat difficult problem

is whether the plaintiff's

ohare in

the coparcenary property

is only l/24th or whether it is l/4th plus

l/24th, that

is to say, 7 /24th. The learned trial Judge, relying upon

the decision in

Shiramabai 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

B

be preferred.

We see no justification for limiting the plaintiff's share to 1/24th

by ignoring the l/4th share which she would have obtained had there

been a partition during her husband's life time between him and his

two sons.

We think that in overlooking that l/4th share, one un­

wittingly 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

1. That Explanation compels the assump-

tion

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 be­

fore the death of the person in whose property the heirs claim a share.

The

fiction created by Explanation 1 has to be

giv® its due and

full effect

as the fiction created by section 18A(9) (b) of

th~ Indian

Income-tax Act, 1922,

was given by this Court in Commissioner of

lncome-tax, Delhi v.

S. Teja Singh('

1

). It was held in that case

c

D

that the fiction that the failure to send an estimate of tax on income

under section 18A(3)

is to be deemed to be a failure to send a return, E

necessarily involves the fiction that a notice had been issued to the

assessee under section 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 section 18A(9)(b),

namely, the issuance of a notice under section 22 and the

failure to

comply

with that notice. Section 18A(9) (b) stopped at creating the F

fiction that

when a person fails to send an estimate of tax on his in­

come under section 18A (

3) he shall be deemed to have failed

tcY

furnish a return of his income. The section did not provide further

that in the circumstances therein stated, a notice under section 22

shall be deemed to have been issued and the notice shall

be deemed

not to have been complied with. These latter assumptions in regard

to the issuance of the notice under section 22 and its non-compliance G

had to

b~ made for the purpose of giving due and full effect to the

fiction created by section 18A(9) (b). In our case it is not necessary,

for the purposes

of working out the fiction, to assume and supply a

missing link which

is really what was meant by Lord

Asquith in his

famous passage in

East End Dwellings Co. Ltd. v. Finsbury Borough

Council.(')

He said if you are bidden to treat an imaginary state of

affairs

as real, you must also imagine as real the consequences and H

(!1 [1959] Supp. 1 S.C.R. 394

(2 [1912] A.C. 109/132

768 SUPREME COURT REPORTS [1978] 3 S.C.R.

A incidents which, if the putative state of affairs had in fact existed, must

inevitably have

flowed from or accompanied it; and if the statute

,ays

that_you must imagine a certain state of affairs, it cannot be interpret­

ed to mean 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.

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H

In order to ascertain the share of heirs in the property of a deceas-

ed 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 coparcenary

property. For,

by doing that alone can one determine the extent of

the claimant's share. Explanation 1 to section 6 resorts to

the simple

expedient, undoubtedly fictional, that the interest

of a Hindu Mita-

kshara coparcener

"shall be deemed to lie" the share in the property

that would have been allotted to him if a partition

of that property had

taken place immediately before his death. What

is therefore requir-

ed to be assumed

is that a partition had in fact taken place between

the deceased and his coparceners immediately before his

c!ealh. That

assumption, once made,

is irrevocable. In other words, the

assump­

tion liaving been made once for the purpose of ascertaining the share

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.

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 calcu-

latillg 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 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 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

coparcei:"ary property at the time of his death. in addition .to

the share

which he

o.r she received or must be deemed to have receiv-

ed in the notional partition.

The interpretation which

we are placing upon the provisions of

section

6, its proviso and explanation I thereto will further the

le¢s­

lative intent in regard to the enlargement of the share of female heirs,

qualitatively and quantitatvely. The Hindu Law of Inheritance

(Amendment) Act, 1929 conferred heirship rights on the son's daugh­

ter. daughter's daughter and sister in all areas where the Mitokshara

law prevailed. Section 3 of the Hindu Women's Rizhts tn Pwperty

Act 1937, speaking broadlv. conferred upon the Hindu widnw the

right to a share in the joint family propertv as also a right to demand

partition like any male member of the family. The Hindu Succession

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G. K. MAGDUM v. H. K. MAGDUM (Chandrachud, C.J.) 769

Act, 1956 provides by section 14(1) that any property pos·sessed by

.a female Hindu, whether acquired before or

afte.r the commencement

of the Act, shall be held by her

as a full owner thereof and not as a

limited owner. By restricting the operation of the fiction created by

Explanation

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 :nterpre­

tations of Explanation

I are reasonably possible, we must prefer that

interpretation which will further the intention of the legislature and

remedy !ht: injustice from which the Hindu women have suffered over

the years.

We are happy to find that the view which we have taken above has

also been faken by the Bombay High Court in Rangu/Jai Lalji v. Lax­

man Lalji (supra) in which Patel, J., very fairly, pronounced his own

earlier judgment

to the contrary in Shiramabai Bhimgonda v. Kalgonda

(supra)

as incorrect. Recently, a Full Bench of that High Court in

Sushilabai Ramachandra Kulkarni v. Narayanrao Gopalrao Deshpande

&Ors.,(1) the Gujarat High Court in Vidyaben v. Jagdishchandra N.

Bhatt(') and the High Court of Orissa in Ananda v. Haribandhu(')

have taken the same view. The Full Bench of the Bombay High

·Court in Sushilabai (supra) has considered exhaustively the various

decisions bearing on the point and we endorse the analysis contained

in the judgment of Kantawala C.

J ., who

has spoken for the Bench.

For these reasons we confum the judgment of the High Court and

. dismiss the appeal with costs.

S.R.

(I) A.I.R. 1975 (Bombay) 257.

(2) A.LR.

1974 Guj. 23.

(3) A.LR. 1967

Orissa 194.

Appeal dismissed.

A

B

c

D

E