- (1.) HEARD learned counsel for the parties.
(2.) LEAVE granted. A suit was filed before the Sub-Divisional Officer by the respondents for partition of suit properties claiming two-third share therein. In the plaint, it was plaintiffs' clear-cut case that the partition suit was filed for partition of notional share of Nagar Mal. Undisputedly, the suit properties were ancestral one in the hands of Nagar Mal, who adopted one Nemi Chand as his son, and after adoption both of them constituted a Mitakshara coparcenary under Hindu Law. Further it was undisputed that Nagar Mal died in the year 1989 intestate in the state of jointness with his adopted son leaving behind him, his adopted son Nemi Chand and the plaintiffs, who were his two daughters. The trial court by misconstruing the provisions of law, passed an ex-parte decree for partition of one-third share of each one of the plaintiffs instead of one-sixth share. Against the decree of trial Court, when the matter was taken in appeal, the appellate authority reversed the same after recording a finding that the property was ancestral one, but remitted the matter as the decree was passed ex-parte. Against the order of remand, the matter was taken to the Board of Revenue, which reversed the order of remand and restored the decree passed by trial Court after recording a finding that each of the plaintiffs was entitled to one-third share in the suit properties. The said judgment has been confirmed in writ by a learned single Judge of the High Court and the same has been upheld in appeal by the Division Bench. Hence, this appeal by special leave.
(3.) IN order to appreciate the point involved in the present case it would be useful to refer to the provisions of Section 6 of the Hindu Succession Act, 1956 (in short "the Act"), as it stood prior to its amendment by Hindu Succession (Amendment) Act, 2005, and the same run thus: "S. 6 - Devolution of interest in coparcenary property - 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 surviving him a female relative specified in Class 1 of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1. - For the purposes 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 of his heirs to claim on intestacy a share in the interest referred to therein." Reference in this connection may be made to a passage from the most authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page 250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author stated that "Explanation I defines the expression 'the interest of the deceased in Mitakshara coparcenary property' and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs." ;