TATIA, J. - (1.) HEARD learned counsel for the appellant as well as learned counsel for the respondents.
(2.) THIS is an appeal against the judgment and decree dated 22nd Sept. 1997 passed by the learned Addl. District Judge No. 1, Jodhpur in Civil Original Suit No. 11/94 by which the learned trial court decreed the plaintiff's suit for partition by passing preliminary decree holding that plaintiff and defendant No. 1 and 2 each is having 6/20th share in the disputed property whereas defendants No. 3 and 4 are having 1/20th share each in the property. The appellant has challenged the allocation of share in the property by the trial court only on the ground that as per the provisions of Sec. 6 of the Hindu Succession Act, the admitted position is that the property in dispute was belonging to deceased Radhakishan, who belonging to deceased Radhakishan, who died long ago and Munilal, the son of Radhakishan, died on 7. 2. 82 at Jodhpur. The plaintiff and defendant No. 1 are the two sons of deceased Munilal whereas defendant No. 2 Smt. Indra Devi is the widow of Munilal (mother of the plaintiff and defendants No. 1,3 and 4 ). According to learned counsel for the appellant the allocation of share made by the trial court is absolutely illegal because of the fact that as per the explanation (1) of the Sec. 6 of the Hindu Succession Act the property of the deceased Munilal stand divided between the Hindu Mitakshara coparcenery immediately before the death of Munilal and as per the law, the property of Munilal will be deemed to have been divided in coparcenery which was consisting of coparceners only plaintiff Rameshwarlal and defendant Ramswroop and, thereafter, Munilal, each will get 1/3rd share in the property. No share can be allotted to Smt. Indra w/o Sh. Munilal because she is also female member of the family and cannot be a coparcener. According to learned counsel for the appellate, only 1/3rd share stands allotted and deemed to have been allotted to deceased Munilal, then only this this share will be available for partition among all the descendants of the deceased Munilal, who are plaintiff defendants No. 1,2,3 and 4. According to learned counsel for the appellate, therefore, this 1/3rd share, which deemed to have been allotted to Munilal as per the Explanation (1) of Sec. 6 of the Hindu Succession Act, if divided among all the descendants, then plaintiff and the defendants No. 1 to 4 all will get equal share, which will come to 1/5th of 1/3rd of the property of deceased Munilal, which will be only 1/15th to defendants No. 2,3 and 4 (female heirs and the total share of the plaintiff and defendant No. 1 will be 1/3rd + 1/15th. Therefore, the trial court has committed a serious illegality in allotting share 6/20th each to plaintiff and defendant No. 1 and 2; and 1/20th to defendants No. 3 and 4. Appellant also filed an application under Order 41 Rule 22 CPC and sought permission to place on record the certified copy of the Patta issued for the house in dispute in favour of Radhakishan, who is grand-father of the plaintiff and defendant No. 1, to show that property in the hands of Munilal was ancestral property. The appellant also filed an application under Order 6 Rule 17 CPC for seeking amendment in the written statement to incorporate that the disputed property was originally belonging to Sh. Radhakishan, the grand-father of the plaintiff, and defendants No. 1,2,3 and 4 and in view of the death of Munilal on 7. 2. 82 the plaintiff and defendant no. 1 each will get half share in th property of deceased Munilal and defendants No. 2 to 4 will have no share in the property. Learned counsel for the respondent pointed out that plaintiff in his statement before the trial court itself admitted this fact that property was belonging to deceased Radhakishan and this is an ancestral property. Therefore, the amendment is necessary because there is no dispute with respect to the fact of ownership of the property vesting in Sh. Radhakishan. The Patta of the property is also not in dispute. Therefore, in either case it will no effect the merit of the case because all the parties to the suit admitted the property as ancestral property.
(3.) IN view of the above submissions, there is no force in the application under Order 6 Rule 17 CPC because the fact is already an admitted fact and the suit of the plaintiff is founded on the basis of having the property being ancestral. Therefore, the application under order 6 Rule 17 CPC is dismissed. So far as application under Order 41 Rule 22 CPC is concerned, a document, which is relevant for just decision of the suit or appeal can be taken on record, but when the fact is in not disputed with respect to the ownership of the property vesting in Radhakishan, there is no reason for allowing the above application. Even if the application is allowed, it will not effect the merit of the case and the document which is sought to be produced, only to prove the ownership of Radhakishan, which is an admitted fact. Therefore, the application under Order 41 Rule 22 CPC is also dismissed. So far as allocation of share is concerned, learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court delivered in the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum & Ors. (1), and learned counsel for the respondent also admitted that the partition takes place immediately before the death f Munilal as per the Explanation (1) of Section 6 of the Hindu Succession Act among the coparceners and as per the provisions of Hindu Law, when partition among coparceners taken place, the share is also allotted to the widow of the deceased provided she is alive at the relevant time. Therefore, according to learned counsel for the respondent though the coparcenery consists of only male members, but in partition among the coparceners, share is allotted to the widow also and, therefore, before the death of Munilal in deeming partition, there will four shares. Therefore, in entire property Munilal (deceased), the plaintiff, the defendant No. 1 and the defendant No. 2 (wife of Munilal) will get 1/4 share. Only 1/4 share of Munilal will be available for further partition among all the total five members of family, who are plaintiff and defendants No. 1 to 4. Therefore, each out of five members (plaintiff and defendants No. 1 to 4) will get 1/5 share of 1/4 share of deceased Munilal, which is 1/20 of the entire property. Therefore, the plaintiff (1/4 in deeming partition + 1/20 of the entire property from the share of Munilal), the defendant will get same share as of the plaintiff and the defendant No. 2 will also get the same share as of the plaintiff and defendant No. 1; whereas the defendants No. 3 and 4 will get only 1/20 share only. I considered the rival submissions and in view of the law laid down by the Hon'ble Apex Court delivered in Gurupad Khandappa magdum case (supra ). The reliance was place upon the above judgment applies with full force in the facts of this case. Hon'ble Apex Court very specifically considered the facts and law, which are relevant to be quoted here: "9. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenery property because after all, the plaintiff has a 1/6th interest in the share. Explanation 1 which contains the formula for determining the share of the deceased creats a fiction by providing that 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. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenery property was effected between him and other members of the coparcenery. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, 14th Edition Page 403, para 315 ). In a partition between Khandappa and his two sos, there would be four sharers in the coparcenery property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenery property on the hypothesis of a partition between himself and his sons. 10. Two things are thus clear; One, that in a partition of the coparcenery property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenery property is only 1/24th or whether it is 1/4th plus 1/2th, that is to say, 7/24th. The learned trial just, relying upon the decision in Shiramabai (AIR 1964 Bom. 263) which was later over ruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred. 11. We see not jurisdiction for limiting the plaintiff share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. We think that in over looking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was infact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the persons in whose property the heirs claim a share. " In view of the above facts, (which gives complete answer to the question raised by the learned counsel for the appellant) the Hon'ble Apex Court, after considering the entire provision of law on the point observed, which is as under:- "what is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenery property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limitated purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenery property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. " In view of the above facts and circumstances of the case, it is clear that the property of Munilal will stand divided as per the Explanation (1) of the Section 6 irrevocably and the only 1/4th share of Munilal is further required to be divided among plaintiff and defendants and, therefore, the calculation made by the plaintiff in the plaint, which was accepted by the trial court is in accordance with the provision of law applicable to the parties and, therefore, there is no force in the submission of learned counsel for the appellant that simply because wife of Munilal is female heir, therefore, she will not be given share in deeming partition of the property of Munilal. It is also relevant to mention here that learned counsel for the appellant also tried to submit that it widow is allotted share then this share can be allotted to only widow of Radhakishan and not Munilal. This submission of learned counsel for the appellant is absolutely devoid of force because the suit for partition was filed after the death of Munilal and the property, which as available to the joint family was in the hands of Munilal and coparceners and undivided family of Munilal and not of Radhakishan. This was not a partition sought by munilal of his father's property. Therefore, this submission of the learned counsel for the appellant has no application to the facts of the present case. ;