ANANDA NAIK Vs. HARIBANDHU NAIK

JUDGEMENT

(1.) THE decretal order is that plaintiffs Nos. 1 and 2 and defendant No. 1 have Rs. / 4/6 interest each and plaintiffs Nos. 3 to 6 and defendant No. 2 have Rs.-/-/6 interest each in the joint family property left by Joydeb. Mr. Misra contends that plaintiff No. 1 and defendant No 1 are each entitled to Rs.-A/6 interest and plaintiffs Nos. 2 to 6 and defendant No. 2 are each entitled to Rs.-/-/8 Interest, thus the controversy in this appeal is confined only to fixation of shares Facts relevant to the aforesaid controversy need only be stated joydeb Naik died on 22-8-59. He hud three wives. The first wife had no issues ananda (defendant No. 1) and Jasoda (defendant No. 2) are the son and daughter respectively through his deceased second wife Labhanya, Ali Bewa (Plaintiff No. 2) is his third wife. Haribandhu (Plaintiff No. 1) is the son and plaintiffs Nos. 8 to ft are his daughters through plaintiff No. 2. Thus, Joydeb died leaving behind him his widow (Plaintiff No. 2), two sons (Plaintiff No. 1 and defendant No. 2) and five daughters (plaintiffs Nos. 3 to 6 and defendant No. 2) At the time of Joydeb's death, there was no disruption in the coparcenery consisting of himself and his two sons.

(2.) THE case of the plaintiffs is that though there was no disruption in the coparcenery at the time of Joydeb's death, his interest 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. By legal fiction Joydeb's interest would be treated to have been partitioned immediately before his death. As a necessary logical corollary, the share of Ali Bewa would be carved out and she would be entitled to 1/4th of the total property in the notional partition amongst Joydeb, herself and her two sons. The Rs -/4/. share belonging to joydeb, who died intestate would devolve upon his widow, sons and daughters equally, and as such, each of plaintiffs Nos. 1 and 2 and defendant No. 1 would be entitled to Rs.-/4/6 share and each of plaintiffs Nos. 3 to 6 and defendant No. 2 would be entitled to Rs.-/-/6 share. Defendant No. 1 pleaded that as before Joydeb's death there was no actual severance of joint status or partition by metes and bounds, the question of plaintiff no. 2 getting a share does not arise. Joydeb's interest in the coparcenery property immediately before his death would be Rs.-/5/4 and residue belonged to plaintiff no. 1 and defendant No. 1 On Joydeb's death, the Rs. /6/4 interest belonging to him would devolve upon all the eight heirs equally, and as such, each plaintiff No. 1 and defendant No. 1 would get Rs.-/6/- interest and the rest would get Rs.-/-/8 each.

(3.) THE answer to the problem rests on the construction of S. 6 of the Hindu succession Act. (Act 30 of 1966) (hereinafter to be referred to as the Act ). The relevant portion of the section may be quoted: section. . . . .