Jai Parkash v. Ram Kali Etc.

Harbans Singh, C.J. - This Regular Second Appeal came up for hearing before a learned Single Judge, who referred it for a more authoritative decision by a larger Bench and that is how this matter is before us. It is the interpretation of Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), which requires consideration in this case. 2. Before the learned Single Judge two decisions by the Bombay High Court in Shiramabi v. Kalgonda Phimgonda, AIR 1964 Bombay 263, and Rangubai v. Laxman Lalji Patil, AIR 1966 Bombay 169, were cited, both being Bench cases and Patel, J. being common in both the Benches. These two cases, according to the learned Single Judge, appear to be taking different views and hence it was considered proper to have a decision by a Bench. 3. The facts are not in dispute. Ram Gopal died on 31st January, 1962. Before his death, he formed a joint Hindu family with his son, Jai Parkash. On his death, Ram Gopal left him surviving, in addition to the aforesaid son, a widow Shrimati Ram Kali and two married daughters, Sona Devi and Satya Wati. The dispute was as to what would be the share of the son, widow and the daughters in the coparcenary property. 4. Section 6 of the Act deals with the devolution of interest in coparcenary property and runs as under :- "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 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 or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1. For the purpose 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 his heirs to claim on intestacy, a share in the interest referred to therein". 5. First part of this section provides that when a Hindu dies having at the time of his death an interest in a Mitakshara coparcenary property, his interest would devolve by survivorship upon the surviving members and not in accordance with this Act. However, in the present case, this part will not apply, because of the proviso. The proviso deals with a case where the deceased had left him surviving any female relative specified in Class I of the Schedule to the Act. The widow, as well as, the daughters are female relatives of the deceased who are specified in Class I of the Schedule. Consequently, this proviso will apply and inasmuch as, the deceased did not leave any will, his interest in the Mitakshara coparcenary property "shall devolve by * * intestate succession * * under this Act and not by suruivorship". According to the rule of intestate succession laid down in the Act, it was not disputed that whatever share the deceased had, in the Mtakshara coparcenary property, shall get equally divided amongst the son, widow and two daughters i.e., each one of them will get one-fourth of the share that the deceased had in the Mitakshara coparcenary property. 6. In order to determine what share the deceased had in the coparcenary property, we have to go to Explanation I of this section and according to this "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 * * * * " 7. Now no rule of partition is provided in the Act and, consequently, Section 4 of the Act will be of no use, because, according to this section only those rules of Hindu Law or custom are abrogated which run counter to the matters dealt with in the Act. As no rules of partition have been provided in the Act, we have to go to the general Hindu Law to find out what would have been the share of the deceased if a partition had taken place immediately before his death. 8. The learned counsel for the respondents has referred us to Article 315 of Mulla's Hindu Law, Thirteenth Edition. This deals with the share which a wife is entitled to receive on partition. It is to the following effect :- "A wife cannot herself demand partition but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. * * * * ". 9. The learned counsel for the appellant could not cite any rule or authority a contrary view. It follows, therefore, that no partition of the joint Hindu family property immediately before Ram Gopal's death, he, his son Jai Parkash and his wife Ram Kali were all entitled to share the property equally. Consequently. if the joint property had been partitioned immediately before the demise of Ram Gopal, he would have been allotted one-third share, which has to devolve on his surviving heirs in accordance with the rule of intestate succession. This share, as already indicated, would be equally distributable amongst the son, the widow and the two daughters. Each one of them will, therefore, get one fourth of the one-third share of the deceased, i.e, one-twelfth share of the joint property. Thus out of Ram Gopal's one-third share, Jai Parskash will get one-twelfth, his mother Ram Kali will get one-twelfth and his two sisters will also get one-twelfth each. 10. As regards the remaining two-third share, that would have ordinarily continued to be the joint Hindu family property because, immediately before Ram Gopal's death no partition took place. Under the Explanation, only partition has to be assumed, in order to determine the share of the deceased, for the purpose of its distribution amongst his heirs, in accordance with the provisions of Section 6. However, in the plaint the plaintiff wants that his total share in the whole property be declared. In fact, the revenue authorities had mutated the land equally amongst all the four heirs and that is what gave the cause of action to the plaintiff. Both the counsel agree that the plaintiff did not want to retain the status of property as the joint Hindu family property and wanted to have his share out of the whole property. In other words, the plaintiff wanted disruption of the joint Hindu family property. In para 316 of Mulla's Hindu Law the right of a widow-mother is given as follows :- "A mother cannot compel a partition so long as the sons remain united. But if a partition takes place between the sons she is entitled to a share equal to that of a sons in the comparcenary property" 11. In view of the above, therefore, on disruption of the Joint Hindu family property, the mother is entitled to get a share with the son. So Jai Parkash will get one-half of the two-third i.e. one-third share. of Ram Kali one-twelfth plus one-third, i.e. 5/12th share and ram Kali will get the other one-thrird share. The net result is that the total share of the plaintiff comes to one-twelfth plus one-third, i.e., 5/12th share and of the two daughters of Ram Gopal one-twelfth each. This is exactly what the Additional District Judge has done. We, therefore, find no force in this appeal and dismiss the same with no order as to costs. Prem Chand Jain, J. - I agree. Appeal dismissed.