Full Judgment Text
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PETITIONER:
GURUPAD KHANDAPPA MAGDUM
Vs.
RESPONDENT:
HIRABAI KHANDAPPA MAGDUM AND ORS.
DATE OF JUDGMENT27/04/1978
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SHINGAL, P.N.
TULZAPURKAR, V.D.
CITATION:
1978 AIR 1239 1978 SCR (3) 761
1978 SCC (3) 383
CITATOR INFO :
F 1985 SC1716 (8)
ACT:
Hindu Succession Act (Act 30 of 1956), Section 6 Explanation
1-Interpretation of-Widow’s share must be ascertained by
adding the share to which she is entitled at a notional
portion during her husband’s life time and the share she
would get in her husband’s interest upon his death.
HEADNOTE:
Khandappa Sangappa Magdum died on June 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 partition were to
take place during Khandappa’s life time between himself and
his two sons the plaintiff would have got a 1/4th share each
on the death of Khandappa, Her further case was that
Khandappa’s 1/4th 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 of the Bombay High Court in Shiramabai Bhimgonda v.
Kalgonda [1963] 66 Bom. L.R. 351, limited her share to only
1/24th and refused to add 1/4th and 1/24th 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 Rom. L.R. 74
which overruled 66 Bom. L.R. 351, held that the plaintiff
wag 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 Mitakshara property at the time of his
death. The proviso to Section 6 contains a formula, for
fixing the share of the claimants while Explanation I
contains a formula for deducing the share of the deceased.
[765 H, 766 A-B]
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(b) Explanation I 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 plaintiffs
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
I has to be given its due and full effect. [766 E-F, 767 C-
D]
Commissioner 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
2. (a) In order to ascertain the share of heirs in the
property of a deceased coparcener it is necessary in the
very nature of things, and as they Very first step to
ascertain the share of the deceased in the coparcenary
property , by dong that alone can one determine the extent
of the claimant’s share. Explanation 1 to section 6 resorts
to the simple expedient, undoubtedly factional, that.
14-315SCI/78
762
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 that property had taken
place immediately before his death. What is therefore
required to be assumed is that a partition had in fact taken
place between the deemed and his coparceners immediately
before his death. That assumption, once made, is
irrevocable. 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 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 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) Ibis interpretation furthers the legislative intent in
regard to the enlargement of the share of female heirs,
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qualitatively and quantatively. Even assuming that two
interpretations of Explanation 1 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 taking a retrograde 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-B]
Rangubhai Lalji v. Laxman Lalji, 68 (Bom) L.R. 74;
Sushilabai Ramachandra Kulkarni v, Narayanarao Gopalrao
Deshpande and Ors., A.I.R. (1975) Bom. 257; Vidyaben v.
Jagadishchandra N. Bhatt, A.I.R. 1974 Guj. 23; Ananda v.
Haribandu, A.I.R. 1967 Orissa 194; approved.
3. In the instant case,
(a) There is no justification for limiting the plaintiff’s
share to 1/24th by ignoring the 1/4th share which she would
have obtained had there been a partition during her
husband’s life time between him and his two sons. 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
therefore got a 1/4th share in the coparcenary property on
the hypothesis of a partition between himself and his sons.
[766 G-H, 767 B-C]
(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
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, ,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 succession 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
763
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. [765 E-G]
(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 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 1st clause of section 9, they take simultaneously
and to the exclusion of other heirs. As between them the
two son’s, the three daughters and the widow will take
equally. each having one share in the deceased’s property
under section 10 read with Rules 1 and 2 of that section.
[766-C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 182 828
of 1975.
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Appeal 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.
V. N. Ganpule 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 of the
following pedigree to understand the point involved in this
appeal
Khandappa Sangappa Magdum
Hirabai (Plaintiff)
Gurupad Biyawwa Bhagirathibai Dhundubai Shivapad
(Deft. 1) (Deft. 3) (Deft. 4)1 (Deft. 5) (Deft. 2)
Khandappa died on June 27, 1960 leaving him surviving his
wife Hirabai who is the plaintiff, two sons Gurupad and
Shivapad, who are defendants 1 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 court of the
Joint Civil Judge, Senior Division, Sangli for partition and
separate possession of a 7/24th share in two houses, a land,
two shops avoid movables on the basis that these properties
belonged to the joint family consisting of her husband,
herself and 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 1/4th share in the
joint family properties, the other three getting 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 7/24th share in the joint
family properties. That, in short, is the plaintiffs case.
Defendants 2 to 5 admitted the plaintiff’s claim, the suit
having H 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 of Khandappa’s
764
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 bad 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 Khandappa’s
self-acquisitions and that he had partitioned them during
his lifetime. Upon that finding the plaintiff. became
indisputably entitled to a share in the joint family
properties but, following the judgment of the Bombay High
Court in Shiramabai Bhimgonda v. Kalgonda(1) the learned
trial judge limited that share to 1/24th, refusing
to add 1/4th and 1/24th together. As against that decree,
defendant 1 filed first appeal No. 524 of 1966 in the Bombay
High Court, while the plaintiff filed cross-objections. By a
judgment dated March 19, 1975 a Division 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 plaintiff is entitled to a
7/24th share. Defendant I has filed this appeal against the
High Court’s judgment by special leave.
Another Division Bench of the Bombay High Court in
Rangubai Lalji v. Laxman Lalji(2) had already reconsidered
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and dissented from earlier Division Bench judgment in
Shiramabai Bhimgonda(1) In 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
appeal, the High Court has based itself on the judgment in
Rangubai Lalji(2) endorsing indirectly the view that
Shiramabai(1) was incorrectly decided.
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 1 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
coparcenary property, his interest in the
property
(1)(1963)66Bom.L.R.351.
(2) 68 Bom. LR. 74.
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
surviving 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
Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as-
the case may be, under this Act and not by
survivorship.
Explanation I.-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 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 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 share in the interest referred to
therein."
The Hindu Succession Act came into force on June 17, 1956,
Khandappa 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 Mitakshara coparcenary property, the pre-
conditions of section 6 are satisfied and that section is
squarely attracted. By the application of 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
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I of the Schedule to the Act and Khandappa died leaving
behind a widow and daughters, the 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 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.
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 Explanation 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 interest which a male Hindu has in a
Mitakshare coparcenary property at
766
the time of his death. Since Explanation 1 is intended to
be explanatory 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 obtain a
share in the interest which her husband had at the time of
his death in the coparcenary property. Two things become
necessary to determine for the purpose of giving relief to
the plaintiff. One, her share in her husband’s share and
two, her husband’s own share in the coparcenary property.
The proviso to section 6 contains the formula for fixing the
share of the claimant while Explanation 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 sections 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 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 1st 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 one
share in the deceased’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 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 which the deceased had in
the coparcenary property because after all, the plaintiff
has a 1/6th interest in that share. Explanation 1 which
contains the formula for determining the share of the
deceased creates a fiction by providing that the interest
of a Hindu Mistakshara 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. One must, therefore, imagine a state of
affairs in which a little prior to Khandappa’s death, a
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partition of the coparcenary property was effected between
him and other members of the coparcenary. Though the
plaintiff, not being a coparcener, was not entitled to
demand partition yet, if a partition were to take place
between her husband and his 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
therefore got a 1/4th share in the coparcenary property on
the hypothesis of a partition between himself and, his sons
Two things are thus clears : One, that in a partition of the
coparcenary property Khandappa would have obtained a 1/4th
share and
767
two, that the share of the plaintiff in the 1/4th share is
1/6th, that is to say, 1/24th. So far there is no
difficulty. The question which poses a somewhat difficult
problem is whether the plaintiff’s share in the coparcenary
property is only 1/24th, or whether it is 1/4th plus 1/24th,
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 be preferred.
We see no justification for limiting the plaintiff’s share
to 1/24th by ignoring the 1/4th 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 1/4th share, one unwittingly 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 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 as the fiction created by section 18A(9) (b)
of the Indian Income-tax Act, 1922, was given by this Court
in Commissioner of Income-tax, Delhi v. S. Teja Singh(1).
It was held in that case 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, 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) If 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 fiction that when a person fails to send an
estimate of tax on his income under section 18A(3) he shall
be deemed to have failed to 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 bad to be, made for the
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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.(1) He said if you are bidden to
treat an imaginary state of affairs as real, you must also
imagine as real the consequences and
(1) [1959] Stipp. 1 S.C.R. 394
(2) [1952] A.C. 109/132
768
incidents which, if the putative state of affairs had in
fact existed, must inevitably have flowed from or
accompanied it; and if the statute says that you must
imagine a certain state of affairs, it cannot be interpreted
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.
In order to ascertain the share of heirs in the property of
a deceased 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 Mitakshara coparcener "shall be deemed to be" 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 required to be assumed
is that a partition had in fact taken place between the
deceased and his coparceners immediately before his death.
That assumption, once made, is irrevocable. 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 worked out,
which means that the share of the heirs must be ascertained
on the basis that they bad 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 bad
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.
The interpretation which we are placing upon the provisions
of section 6, its proviso and explanation I thereto will
further the legislative intent in regard to the enlargement
of the share of female heirs, qualitatively and
quantitatively. The Hindu Law of Inheritance (Amendment)
Act, 1929 conferred heirship rights on the son’s daughter,
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daughter’s daughter and sister in all areas where the
Mitakshara law prevailed. Section 3 of the Hindu Women’s
Rights to Property Act. 1937, speaking broadly, conferred
upon the Hindu widow the right to a share in the joint
family property as also a right to demand partition like any
male member of the family. The Hindu Succession
769
Act, 1956 provides by section 14(1) that any property
possessed by a female Hindu, whether acquired before or
after 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 interpretations of
Explanation I are reasonably possible, we 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.
We are happy to find that the view which we have taken above
has also been taken by the Bombay High Court in Rangubai
Lalji v. Laxman 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(2) and the High Court of Orissa in
Ananda v. Haribandhu(3) 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 confirm the judgment of the High Court
and ,dismiss the appeal with costs.
S.R. Appeal dismissed.
(1) A.I.R. 1975 (Bombay) 257.
(2) A.I.R. 1974 Guj. 23.
(3) A.I.R. 1967 Orissa 194.
770