SUSHILABAI RAMCHANDRA KULKARNI Vs. NARAYANRAO GOPALRAO DESHPANDE

JUDGEMENT

(1.) This Division Bench of this Court has referred to the Full bench the following two questions for determination: (1) Is the scope of the fiction in the Explanation of Section 6 of the Hindu Succession Act, 1956 as wide as was held in Rangubai v. Laxman, 1966 Mah LJ 240 = (AIR 1966 Bom 169), and whether the view taken in Rangubai's case that as a result of the notional partition contemplated by the proviso to Section 6 of the Hindu Succession Act, the shares of persons other than the deceased coparcener also become fixed as if a partition had taken place during the lifetime of the deceased coparcener is correct? (2) On the facts found in this case to what share is the plaintiff entitled in the suit property?

(2.) The plaintiff filed a suit for partition and separate possession of her share in movable and immovable property referred to in the plaint. Plaintiff Susbhilabai is the daughter of one Narayanrao. Narayanrao had a wife by name Laxmibai, Narayanrao adopted a son by name Shridhar, Shridhar died on December 29, 1956, leaving him surviving his adoptive father Narayan, adoptive mother Laxmibai and his widow Shantabai, Laxmibai died on March 11, 1965, making a will whereby he disposed of his interest in the family property in favour of Samarth Charitable Society, a Society registered under the Societies Registration Act.

(3.) The trial Court partially decreed the suit giving the plaintiff 1/8th share in the estate belonging to the family. This quantum of share was determined on the footing that Shridhar the adopted son had 1/2 share in the family property and the adoptive father Narayanrao had the remaining half share therein. On Shridhar's death his interest in the family property was divided equally between his widow Shantabai and his adoptive mother Laxmibai. Thus, according to the trial Court, upon Shridhar's death, Shantabai became entitled to 1/4th share in the family property i.e., half share in Shridhar's property and Laxmibai became equally entitled to 1/4th share in the family property. On Laxmibai's death in the year 1957 her interest in the family property was divided equally between the plaintiff, her daughter and her husband Narayan. Thus upon the finding of the trial Court the plaintiff became entitled to 1/8th interest in the family property and passed a decree accordingly. Aggrieved by the decision of the trial Court the plaintiff preferred an appeal.