The rule of Hindu law providing a share to the mother and maintenance and marriage expenses of the daughters on partition is abrogated in view of Section 4 of the Hindu Succession Act, 1956, which gives the Act overriding effect over any other law or custom.

JUDGMENT - 1. The question in this case is one of interpretation of Section 6 of that Hindu Succession Act 1956.

2. One Bhimgonda died leaving behind him, the plaintiff his widow, a son defendant No. 1, three daughters defendants, 2, 3 and 4 by his predeceased wife Anjanabai. Bhimgonda and his son formed a coparcenary and owned the suit property. Jangonda defendant No. 5 is the father of Anjanabai and defendants Nos. 6 and 7 are two co-sharers of some properties. The plaintiff filed this suit, for partition and possession of her share in the properties-claiming that she was entitled to 1/3 plus 1/15 i.e. 2/5. Defendant No. 1 contended that she was entitled to only. 1/10th share and no more. The learned trial Judge has. held that the plaintiff has 2/5th share in the family properties, and the learned District Judge has held that the plaintiff is entitled to 1/15th share, but as the defendants had admitted it to be 1/10th, he decreed accordingly. The question that arises is not easy to answer.

2a. Section 6 of the Hindu Succession Act, 1956, is as follows:

"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 ths surviving members of the coparcenary and not in accordance with this Act.

Provided 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 Mitaltshara 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." Bhimgonda died Joint with his son and the question is What was Bhirngondas interest i.e. what would be the shere that would have been allotted to him on partition bet-ween his son and himself, if an actual partition is the criterion, on the basis of the ruie of Hindu law that on a partition between father and sons wife is entitled" to a share, Bhimgonda would have only 1/3rd, 1/3rd going to the plaintiff. It must be noticed that the section does not provide for actual partition at first as at death, and allotment of shares to the shares and then for a division of the property falling to the share of the deceased coparcener amongst his heirs. The anomaly therefore would be that l/3rd share which would go to the mother on actual partition she will not get, as there is not a partition during the life-time of father, nor does the section so provide and it will remain with the son and the widow and daughters will get a share only out of 1/3rd of the entire property. This is not the only complication as will appear from the next para.

3. In the present case defendants 2, 3 and 4 are daughters some of whom are unmarried. Under Hindu Lavi before division between cosharers their maintenance and expenses for their marriage must be provided for cut of the joint family proporty. The l/3rd share will there fore be further reduced. Is it then correct to hold that this was never intended and Explanation to the section only means such share as would come to him on a division between only the male coparceners as such without any reduction? In other words does it mean that while considering the share of the deceased coparcener females should be wholly disr

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