Patel, J.

1. This second appeal has been referred to a Division Bench by Chandrachud J. , as it raise the important question of interpretation of S. 6 of the Hindu Succession of Act, 1956, and also as some doubt was entertained by the learned of the Division Bench in Shirmabai Bhimgonda v. Kaglonda Bhimgonda, 66 Bom LR 351 [air 1964 Bom 263 [LQ/BomHC/1963/112] ] of which I was a member.

2. The facts are the plaintiff is the widow of Lalji patil. At this death, he left the plaintiff and the defendants his adopted son. The window filed the present suit, claiming half share in the property. The trial court granted one-sixth share to her and the learned assistant judge with slight modification confirmed this decree.

3. The editor of Sir Dinshaw Mulla's principles of Hindu Law. Expresses the opinion that in view the Explanation to S. 6 of the Hindu Succession Act, 1956, only one - third share in the coparcenery property would-be available for distribution - in this case between the plaintiff and the defendants - and if this is the correct interpretation of the section. In shriamabai Bhimgonda Patil's case, 66 Bom LR 351, [air 1965 Bom 263 [LQ/BomHC/1964/93] ] the Division Bench or which I was a member decided that , in view of S. 4 of this act, the wife right to the claim and a share at the notional partition was abrogated as it was merely in lieu of maintenance's and therefore the whole of the share offer husband which was equal to that the to son, that the one-half, was available for partition between the next heirs. If that the judgment is rights the plaintiff would-be entitled to one-fourth share in the suit property.

4. The third view now propounded on behalf of the widow in the present case is that the she is entitled to one = third share of the at notional partition and one- half of the one - third share on succession to her husbands share, which together becomes one - half of the whole property.

5. The question is by no means an easy one to answer. The Hindu Succession Act, 1956, was brought onto statute Book with the purpose of amending and codifying the law relating to the intestate succession amongst Hindus, section 6 a of the Act, recognize the principles of the Hindu law that coparcenery property goes by the survivorship. The proviso oft section, however qualities the law of survivorship only Explanation 1 to the proviso is material to the present question, Section 6 is as follows:"when a male Hindu and dies after the commencement of this act, having at the time of dis death an interest in Mitakshara Coparcencery property in his interest in the property shall desolate by survivorship upon the surviving members of the coparcenery and not in accordance and with this act. Provided that if the decades had left him surviving a female relative specified in class I of the schedule of a male relative specified is that class who claims through such female relative the interest of the decease's in the Mitak share coparcencery of property shall devolve by testamentary or intestate succession , as the case may be under the this act and not by survivorship. Explanation 1, - For the purpose of this section, the interest of the Hindu Mitakshara conparcener shall be deemed to be the share I the property that would have been allotted to him it a partition to the property has taken place immediately of before his death, irrespective of whether he was entitled to claim partition or note. Explanation 2, - Nothing contained in the proviso to this section shall be constructed as enabling aspersion who has separated himself from the coparcenery before the death of the deceased or any of this heir to claim on in the a share in the interest referred to therein. "

6. Mr. Rane Supports the view in Shirambai's case, 66 Bom LR 351; [air 1964 Bom 263 [LQ/BomHC/1963/112] ] According to him, the principal adopted in that case namely that the share to which the wife or widow is entitled at partitions is lost to her by reason of if not S. 4 of the Hindu Succession act and at any rate S. 4 of the Hindu adoptions and Maintenance's act, 1956 the section being worded in similar terms Both sections so far as relevant areas follows. :"4 (1) Save as otherwise expressly provided in this act,:- (a) any text, rule to interpretation of Hindu law or any custom or usage as part of that law in the force immediately before the commencement of this act shall case those effect with respect to any shall case which provision is made in this act. 9b) any others, law in force immediately before the commencement of this act shall case to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. "

7. In order to consider how far this contention can be valid, one has to consider the nature of the wife's or mother's right to a share at a partition between her husband and her sensor her sons.

8. We must now therefore consider the nature of the right. The question arose before this High Court in an indirect form in Lakshman Ramchandra v. satybhamabai [1877] ILR 2, [LQ/PC/1876/29] Bom 494, The matter arose in a suit brought a sole surviving members of the husband family and bona fide purchases for value from him of some immovable an trail property of the family West J. Made a careful analysis to the Hindu Law relating to the rights of a wife to demand a share at a partition between her husband and sons and of ambition at a partition between her sons he says [p 503]. "through her marriage a Hindu Woman according to Jimuta Vahana, acquires an interest in her husbands property though only according to some writers of a secondary kind such as a may be divested by a gift by the husband to third party. A higher interest could certainly not be assigned to her constantly with that text of Manu [chavii Pl 416] which ranks her along with a son and slave as incapable of having wealth exclusively her own, but this interests has been deemed enough to entitle her to an equal share wish sonnies of the where her husband makes a partition of his property. The vyavahara Mavkha deals even with the reunion of a wife with the husband which implies a previous partition in the case sense probably of the allotment oaf share in division with son Apastamba Denies [cole, Dig. , bk, V ch, II p l89] that such apparition can take place because of the essential unity of the married pair, a reason which could not apply after the husband death. That event, however while removing the superior and dominant interest of the husband the superior and dominant interest of the husband papers to the have been recognized that the least some oft smarts as bringing out the wives right into greater definiteness Manu [chap. V. , pl 148] and Narada [pt 1 ch III 36]alike insist on the dependence of the woman, yet Narada [pt I, ch III, 39 ,40] assigns to the widow on her husband's death, a general control of the estate in priority even to sons, Manu [ch. I 104] says that a partition cannot be made during her life by the sons -cannot be made, it has been understood, without herassent - and H. H. willson [work vol 5, p28] make the necessity of this consent a ground for the right of absolute disposal over the share allotted to her in the partition [2, Str, H. L. 383]. In this presidency the son's right to party partitions if subsists against their mother but the widow's rights has not been regarded by the Sharstris as orginating in the partition, though a separate effect in thus given to it [mitak, ch I sec VII. , Pl I] In the case at I west and Buhler, 27, Q 10 and the in several other cases, as at 2 Wast, and Buhler 29 ,the widow has been pronounced entitled to a share equal to that of a single son who is beign such could not make a partition is the sence to which the text of the Mitakshara Directly applices. That this shars is not amere maintencances tobe allowed I nteh discharge of filial duty appears from the pasages of Vysas Quoted in Vyavaharamayukah,chap IV. , sec IV Pl 19:- "even childless with wives of the father are pronounced equal shares" The sons therefore who is partition fail at allot the proper share if to their mother can be compelled to do it afterwards, 2 West and Buhler 31 Q. 3. In Bengal it has been held that the mother is a necessary party to a suit brought by a son for a partition Lajeet Singh v. Rajcoomar Sing. [1874]12 Beng LR 373". "if the mother is a necessary party to a suit for partition, it is hard to conceive of her as not having as interest in the property the as distinuished from a mere claim against the persons of her sons for a sufficient allotment. "

9. Referring to the ratio of the decision in Deen Dayal Lal v. Jud Deep Narain Singh, [1876] 4 Ind App. 247, [pc] he says [p. 507] "this is to be referred to the wifes right in her husbands property acquired by her marriage. It would, therefore, seem to the suggested that though she has no right to demand a partition as such her right ois not a right available against the husband and sons personally but is aright in the property of the coparcenery.

10. Mr. Rane referred us to a good many decisions where it has been share observed thatthe rights to a wife or a mothers to share at a partition between coparaceners is in lieu of maintainance. These decision are Hemangini Dasi v. Kedar Nath [1888] 16 ind app 115 [pc] andraoji Bhikaji v. Anant Laxman 20 Bom LR671, [air 1918 Bom 175 [LQ/BomHC/1918/34] ] the last being prtamull Agarwalla v. Dhanbaji Bidi 63, Ind app. 33, [air 1936 PC 20 [LQ/PC/1935/81] ] Where the judicial committee had occasion to consider to the nature of the rights. Their Lorships Approved the observations of Mitter J, in sheo Dyal Tewaree v. Judoonath Tewaree, [1868] 9 Sought WR 61, 63 which are as follows:". . . . . . . . . . . . . . . . . . . . . . . . . . . . THE mother or the grandmother is entitled to a share when sons or gransons divide the family estate between themsevles but [that] she cannot be recongised as the owner of such until the division is actually made, as she has no pre - existing right in the estate except a right of maintenance. "

11. It would seem, however, that the Hindu Succession, Act has made considerable impact on this decision as can be seem from the decision in Munnala v. Rajkumar, AIR 1962 SC 1493 [LQ/SC/1962/86] . The facts of this case simple. One Garibdas left a son Gulzarilal who died in the 1939 leaving behind him two sons, Munnalal and Ramchand, and the widow of the predeceased son, Bhurilal, Sahebala, one of the son onmunnalal, filed a suit for partition and separate possession of his one- twelfth share in the joint family property. As he had not brought all the parties on record, the judges ordered that the absent parties should be brought on record, including great - grantmoth Khilonabi, Ultimately, a preliminary decree was made for partition five - twenty - fourth to Ramchand and his sons one -fourth to Khilonabai and one - fourth to rajkumar adopted by Bhuribai. The Defendants appelatedd against this decree to High Court , and during the pendency of the appeal Khiloabai died On july 3, 1956, Ramchand and Munnala applied to the impleaded as her legal representatives in the respect of the interest in the property awarded to her bythe preliminary decree. The judgment of the supreme court was delivered by Mr. Justice, Shah who after referring to the decision of the Judicial committee in pratapmull's case 63 Ind App. 33, [air 1936 PC 20 [LQ/PC/1935/81] ] Says. "pratapmull's case, 63 Ind App. 33, [air 1936 PC 20 [LQ/PC/1935/81] ] undoubtedly laid down that till actual division of the share declarded for partition of joint familestate, a Hindu wife or mother was not recongnised as owner, but the rule cannot in our judgment apply after the enactment of the hindu Succession Act. The act is a codifying enactment and has made act far reaching changes in the strucure of the Hindu law of inheritances and succession the act confers upon Hindu females full rights of inheritancs and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. It is ture that under the Sastric Hindu Law, the share given to Hindu widow on partition between her sons or her gransons was in lieu of her rights to maintenances. She was not entitled to claim partition. But the legislature by enacting the Hindu Women's Rights to property Act 1937, made a significant departure of the branch of the law the act gave a Hindu Widow the same interest in the property which her husband had at time of his death and if the este was partitioned she become owner in spveatly of her share, subject on the peculiar rule of extinction of the estate of the death autal our civil. It cannot be assumed having regard to this development that in enacting S. 14 of the Hindu Succession Act ,the Legislature merely intended to declare the rule enunciated by the privy to declare the rule enuncaited by the privy council pratapmulls case, 63 Ind App. 33; [air 1936] PC 20 [LQ/PC/1935/81] ] his Lorship considered the combined effect of section 4 and 14 of Act and held the premliminary decree having declared the rights in favour of Khillonabai, she become dentitled to the absolute rights in the property. The view of taken in Munnalal's case AIR 1962 SC 1493 [LQ/SC/1962/86] , that the rights of a wife or mother to a share onpartition is not amere personal right meant to assure her of her maintenance but a rights in propety wouldfind support from decisions such as in Jairam Nathoo v. Nathoo Shamji, [1906] 8 Bom LR 632, and Hushensab Rajesab v. Basappa Puradappa, [1932] 34 Bom, LR 1325, where is it held that from the valuve of such must be deducted the value of any stridhan received by her as gift from her father-in-law or her husband. The rule is based on the undertandable principle that if she is to have a share in the coparenery that if she to but just and and fair theshe must account for whatever she has received from the coparcenery property.

12. Similarly, the rights of the daughters and others not entitled to a share on a partition of the coparcenery property for whom provision has to be made is not made mere personal rights but a rights in the coparcenery property [rajagopala Ayyat v. Venkataraman, AIR 1947 PC 122, Sir Dinshaw Mulla's Hindu Law, 12th Edn. , p. 476 Section 304 and p. 187 section 110]

13. Mr. Rane, relying on some of the provisions of the adoptions and Maintenances Act has argued that the wife's or mothers rights to share or the rights of daughters for provisions on partition of the joint family property is abrogated. He refers tos. 18 which defines the rights of maintenances of a wife against the her husbands under certain circumstances section 19 which defines the rights maintenances of widowed daughter - in – law against her father - in - law and section 20 which obliges a Hindu to maintain his or her children and aged parents. In the second set come Section 21 and 22 which define the rights of son. The sections of themsevles show that the obligations of is personal. It has no relations of rights of property. It has no relations rights of person entitled to provisions being made out of the coparcenery property of as such. If as we have stated above the rights other wife of the mother to claim a shares in corporation property and the daughters in etc. To have property and the daughters in etc. To have property and the daughters in etc to have a provision of and the daughters made is not a "provision having been made in the in this Act" as required by section 4 (a) then the principles old Hindu Law cannot be said to be arrogated. Section 4 (b) of evidently cannot apply.

14. Section 6 recognises the Hindu Law of survivorship but the proviso crearte and exception and provides for devaluation of the interest of the deceased coparcener it the died intestate and left any and the female her is specified in clauses 1 or male relative specified therein the claiming through such female relative probably, if the Explanation such has not been there would not have been any difficulty in accepting the interpretation suggested in Dinshaw mulla principles of Hindu Law and by others text writers. The difficulty has been created reason of such Hindu Mitakshara coparcener. According to the Explanation to the interest is. "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 this death". The question is what was intended by the legislation when in enacted this Explanation. The intention of the liegaltion is to be found form the words used giving them their ordinary meaning. The Explanation enacts of in effect that there shall be deemed to have been a that partition before the his death and such property as would have come to his share would be divisible amongst of his heris. It introduces and legal flections of partition before his share cannot be possible determined. In section 7 cannot be possible determined provision of succession to persons governed by the Marukkattayam law by subsection (2) there is Explanation to each which also governed defines to him interest of such coparcener to mean such the share in the property that the would have fallen to him in the her if partition of the property per captain had been made such share is the before deemed of have been allotted to him or her absolutely. It would therfore appeal from the scheme of sections 6 and 7 that the legislature intended that is shall be deemed that there was a partition in fact and substances of and that such property as would be available to the deceases would be divisible among in the heris.

15. It this so, can it then be said that though the legislature intended that there shall be deemed to be partition of the property and the share of the deceased coparcener shall be deemed to have been separated the share to the which the wife would-be entitled should fall in the vacuum and no relief can the granted to her To put it in on ther words where the wife of the such coparcener is entitled to share of at such petitioner, should she not be entitled to claim it and should such share be alloed to be enjoyed by the son or sons The supreme Courts in commissioners of Income - tax Delhi v. S. Teja singh AIR 1959 SC 352 [LQ/SC/1958/139] had occasion to deal with legal fictions of the. In paragraph 6 of the judgment T. L. venkatarama Aiyat J. , speaking on behalf of the court, says:"it is rule of the interpretation well settled that in construing the scope of a legal fiction of it would be proper and even necessary to assume all those facts on which lalone the fiction of can operate. "the His Lordships cited the observations of Lord Asquith in East End Dwellings Co. Ltd, v. Finsbury Borough Council, 1952 AC 109at the p. 132 with approval. These observations of the are to the following effets: "if you are bidden to treat an imaginary state of affirms as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the purtative state of the affairs had in fact, existed mustinevitable have flowed from or emancipation from the 1939 level of rents. The statute says that your mus imgaine of a certain state of the affiras it does not say that having done so your must causes or permit your imagination to the boggle when it comes to the inevitable corollries of that state of affairs: unless therfore there is anything’s contained in the Explanation of section 6 or section 7, the legal fiction of the partition and separation of the share be carried to its logical conclusion. The shares become carried to fixed as the partition had taken palkce during his lifetime of and the decision of the case of AIR 1962 SC 1493 [LQ/SC/1962/86] , and becomes applicable. If any person to is entitled to a share on such partition or to maintenances and if he of she insist upon it, then the court cannot refuse to give effects of to such shares of rights to the maintenances and marriages expenses. It is true on boutbt, the neither of the section 6 nr In the section 7 is there a provision of for awarding such a share. However it appears to us that it is not necessary of the expressly state so and the legal fiction of the Explanation of implies with in the further consequences of that if any one is entitled to such shares as the is allowable to the her she is entitled on demand to have that share.

16. In. Venkiteswara Pai v. Luis, AIR 1964 Kerala 125, a full Bench of the high Cort while considering the provisions of order 22, Rule 4 held, that in view of the proviso and Explanation ot section 6, the share of a deceased coparcener of in the coparcenery property of must be deemed to have been partitioned out immediately before his death and the have deloved on this heris. It is indeed true of that that case does not touch the present question. But it does not touch the partition is deemed to have been effected and on the dates of the death of the coparcener and it is must share as must be deemed to have come to him that is divisable amongst his heris.

17. The view that we are taking is consistent with the objects of he Legislature under the old shastric law, there were stringent restrictions on females inheriting and possessing properties. There were also stingent conditions regarding their powers of disposal over such properties. In may of the schools governed by the Mitakshara law as close on heir as a sister or daughters daughter’s or a son's daughter, or sister's son were not entitled to inherit the brother. The grandfather or the maternal uncle. In order to remove these disabilites Act No. 2 of 1929 Known as the Hindu Law of Inheritance Amendment of Act of 1929 was passed which gave for the first time a place of femals in the list of heris entitled to succeed to the person. Then come the Hindu to women;s Rights to property act 1937, which of the first time recongised the rights of the widow for the first time recognised the rights of widow to inherit the property of husbandandalso to acquire his interest even in copearcenerty properies. The present Act repealing the 1937 Act provides for succession could hardly have been itended that the share of her sons should be augmented by a supposed notional partition for determining by the share of her husband of effect betweens on her sons it she had to good fortune of have more than clald on son. Similarly it could hardly have been intented that the provision required to be made out the of the coparcenerty property for the maintenances of marriage of expenses of daughers should be left to the sons. It wouldnto the giving all the effect to the language of th statute of the mother is deined tie her leigitimate share in the coparcenerty property on parition would is demed have taken palce of time of her husband deant. It may also be restricing the implication of hte words used in the section of the hold that the respect of the maintenances and marriage expenses of daughters and others on such arrangements should be made of the should beleft again the mercy of their brothers we have beeb referred to the articles of th Dr. J. Duncan M. Derrettin 66 Bom LR Jour section p. 169 and B. Shriamayya of the 67 Bom LR journal section p. 65. In the first article the author has advocated the views of which have been expressed by the Editor of sir Dinshaw Mulla's principles of Hindu law. The second articles supports the decisions Shirmabai Bhimagonda Patils case 66 Bom LR 351, [air 1964 Bom 263 [LQ/BomHC/1963/112] ] It is true that in view of what we have stated above, the decision if shirmabai's case, 66 Bom LR 351 [air 1964bom 263] cannot be accepted. On the other hand it is also extremely difficult to accept the apparent also extremely difficult section expressed in Sir Dinshaw view of Mulla's Hindu Law.

18. Out conclusion, therefore is that the when the interst of the deceased coparcener is to be determined, the courts should be first determined what is the property available for partition as provided as section 304, Sir Dinshaw mulla's Hindu Law p. 475, the partitio the coparcenerty property setting aside the share if the widow to which she is entitled in the her own rights of the divide the share o the decases decree make proper provision for the maintenances and marriage provision for the maintenances of and marriage expenses of the daughters and award the widow her due shares in the coparcencery property and divide the property of her husband amongst the heirs.

19. It seems that some arguments was made before Chandrachud, j. Based on the fact that section 30 of this act, which respaled by the Hindu Women's Rights to property act 1987, is itself repleced by the Act 58 of the 1960. It was propably suggested that the rights of the widow in the coparcenery property were revived by this repeal. It is sufficient to say in this connection that section 7 of the General clauses of act lays down that the repeal of an enactment of which repelated an earlie one, the replated enactment. In this case apart from the General Clauses Act, even therepealing Act, No. 58 of 1960 itself provides of by section 5 that the repeal of the provisions of by repealing enactments will not revive of the enactments repelated by them.

20. If a bench disagrees with the judgment of another Division of Bench, the ordinary procedure of is to refer the matter of the to a fuller Bench for re-consideration. However, I was a party to the decision in Shirmabai's case and can state that the we had not been in a position to consider all the prosand the cons of the the matter. Therefore as held in parappa Ningappa v. Mallappa Kallappa 58 Bom, LR 404, (S) AIR 1956 Bom 332 [LQ/BomHC/1955/333] ) (FB) we are not bound by that decision.

21. In this case there are no daughters and no disqualified heris. On a partition during the lift time of Lalji Patil the plaintiff would have been entitled to one - third shares and no succession to a further one - sixth share. Her share, therefore, in the property will be one - half share.

22. We therefore, modify the decree the of the courts below the by decreeding to the plaintiff one - half share instead of one -sixth shares. A preliminary decree will accordingly be drawn up and remitted to the trial court for the effecting partition in accordance with the preliminary decree in two months from the record reaching the tiral court.

23. As the question involved is some what difficult is seems it would be proper is to order the parties to bear their own costs throughout.

24. Order Accordingly.