S VIJAYALAKSHMI Vs. M G GANESA IYER DIED

JUDGEMENT

(1.) IN this appeal the plaintiffs in O.S.No.51 of 1973 on the file of the Subordinate 3udge of Tiruchirapaili, are the appellants. Defendants 1 to 9 in the suit have been arrayed as respondents in this appeal. The 1st respondent died and respondents 2 to 7 have been recorded as his legal representatives. The 1st defendant was the father and defendants 2 to 4 are the sons and defendants 5 to 7 are the daughters. There was another son by name Sivasankaran and he died intestate on 10-8-1970. The 1st plaintiff is his widow and plaintiffs 2 and 3 are his daughters. That there was a joint family constituted of the first defendant, defendants 2 to 4 and the deceased Siva-sankaran, was not in dispute. Taking into consideration the nature of the contro-versy raised in this appeal as well as the cross-objections filed by the fourth respondent-the fourth defendant in the suit, it is not necessary to delineate and deal with all the aspects of the case.

(2.) THE suit by the plaintiffs was one for partition and separate possession of one-fifth share in the properties set out in schedules A and B to the plaint,and for other reliefs. THE Court beiow granted the plaintiffs a preliminary decree for partition of their one-fifth share in items 1 and 2 and one-eighth share in items 6 and 7 and for Rs.5,500/- with interest thereon in lieu of their share in item 8 of the plaint A schedule properties, and for other monetary reliefs, against defendants 2 and 4. THE court below negatived the rest of the claims of the plaintiffs, including their claim for a share in item 5 of the plaint A schedule properties. This appeal is directed against the decision of the Court below in respect of this item 5 of the plaint A schedule properties. This was an item purchased by the father, the 1st defendant in Court auction on 1-9-1971, as could be seen from Ex.A-1. On the date of the purchase, the son Sivasankaran, whose heirs are the plaintiffs, was no more, he having died on 10-8-70. THE result of the death of Sivasankaran was, there was disruption in the joint family and the interest of Sivasankaran in the joint family properties got determined and must be deemed to have been carved out from the entire joint family properties and it ceased to form part of the joint family properties and the separated and carved out interest of the deceased Sivasankaran in the joint family properties came to vest in the plaintiffs.

(3.) LEARNED counsel for the appellants drew my attention to a judgment of the Supreme Court in Gurupad v. Hirabai, (1978)2 S.C.J.525: (1978)3 S.C.C.383: 1978 B.L.J.R.354: (1978)4 All L.R.522: A.I.R. 1978 S.C.1239. In my view, the proposition countenanced therein does not even indirectly support the submission of the learned counsel but, on the other hand, militates against the same. Constru-ing the effect of Explanation 1 to section 6 of the Hindu Succession Act, Chandrachud, C.J., in paragraph 13 of the report, obser-ved as follows: