The concept of notional partition is a legal device used for purpose of demarcating interest of the deceased when the explanation (I) of Section 6 is attracted. Like any other legal fiction, the fiction of notional partition is meant for a specific purpose. It is not a real partition by metes and bounds. It neither effects a severance of status nor does it demarcate the interest of the surviving coparceners or of any females who are entitled to a share on a partition. It is well settled that the share of the deceased coparcener is required to be determined by notionally making allotment of his share which he was entitled to at the partition, on assumption that he was alive on that day and thereafter to divide his share amongst the legal heirs. The joint status of the Respondents was not impaired due to the introduction of Section 6 of the Hindu Succession Act. There is no reason to hold that the joint Hindu family was disrupted.
13. In "State of Maharashtra v. Narayanrao MANU/SC/0309/1985 : [1987]163ITR31(SC) , the Supreme Court took survey of the earlier decisions including that of Gurupad's case MANU/SC/0407/1978 : [1981]129ITR440(SC) . The Supreme Court held that Gurupad's case has to be treated as authority only for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Hindu Succession Act, files a suit for partition expressing her willingness to go out of the family would be entitled to both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation (I) appended to Section 6 of the Hindu Succession Act. The applicability of Section 6 does not per se bring about severance of status among the surviving coparceners. The legal fiction can not be carried beyond the purpose for which it is enacted. Considering this legal position, the view taken by the learned District Judge appears to be incorrect and improper. It must be held, therefore, that the Respondents Nos. l to 4 continued to remain members of the joint Hindu family and the suit houses were part of the coparcenary properties held by them.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Second Appeal No. 220 of 1988
Decided On: 07.01.2009
Shankarlal Ramprasad Ladha Vs. Vasant Chandidasrao Deshmukh,
Coram:
V.R. Kingaonkar, J.
V.R. Kingaonkar, J.
Citation:AIR 2009(NOC)2367 Bom
