DUKHI TELI Vs. MAHDEI

JUDGEMENT

(1.) THIS is a second appeal in a suit for partition of certain houses and some movables. The plaintiff is the daughter of Natha Teli and the two defendants are her brothers being sons of Natha Teli who died in December, 1961. The plaintiff claimed one-third share in the properties. The defendants had contested the suit on various grounds. The trial court held that the houses in suit belonged to the deceased Natha Teli that they are not self acquired property of Natha Teli and that the plaintiff had one-third share in it. On these findings, he decreed the suit declaring the plaintiff's share to be one-third. The defendants appealed to the District Court against the said preliminary decree. The appeal was heard by the court of Civil Judge, Ghazipur. The learned Civil Judge held on a consideration of the evidence that the theory of separation put forward by the defendant appellants was false and it was conclusively established by the evidence on record that Natha Teli and the two defendants were members of a Hindu Joint Family and there had been no separation between them and that all the properties in suit were joint properties of the parties and after the death of Natha Teli, all the parties are joint owner and are in possession thereof. Mr. S. K. Verma learned counsel for the appellants has not challenged the aforesaid findings of the lower appellate court, but he urged that on the aforesaid finding the share of the plaintiff-respondent in the properties in suit would be one-ninth and not one-third. Natha Teli deid in 1961 after the coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). Section 6 of the aforesaid Act provides: "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." The proviso to this section further provides 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 property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. It is indisputable that the plaintiff was one of the female relative specified in class I of the schedule to the Act, being the daughther of the deceased Natha Teli. For finding out the extent of the interest of a male Hindu in Mitakshara coparcenary property which he is possessed of at the time of his death, the Explanation 1 to the proviso lays down the following rule:- "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." It cannot be disputed that if a partition of the coparcenary property had taken place between him and his coparcenary immediately before the death of Natha Teli, his share in the property would have been one-third according to the Hindu law of partition of coparcenary property. It follows that it was this one-third share of Natha Teli which would have been allotted to him if the partition of the property had taken place immediately before his death which devolved by testamentary or intestate succession under the Act and not by survivorship. Now under section 8 of the Act read with the schedule thereto the plaintiff being the daughter and the defendants being the sons of Natha Teli they are heirs of equal degree; and according to the rules laid down under section 10 of. the Act, all the three will each have one-third share in the property so inherited from Natha Teli, with the result that the share of the plaintiff in the whole of the coparcenary property would be only one-ninth and not one-third. In the result, the appeal succeeds and is allowed. The share of the plaintiff in the property in suit is declared to be one-ninth only. The parties shall bear their own costs of this appeal.