JUDGMENT - Patel, J.

(1) This second appeal has been referred to a Division Bench by Chandrachud J., as it raise the important question of interpretation of S. 6 of the Hindu Succession of Act, 1956, and also as some doubt was entertained by the learned of the Division Bench in Shirmabai Bhimgonda v. Kaglonda Bhimgonda, 66 Bom LR 351 of which I was a member.

(2) The facts are the plaintiff is the widow of Lalji patil. At this death, he left the plaintiff and the defendants his adopted son. The window filed the present suit, claiming half share in the property. The trial court granted one-sixth share to her and the learned assistant judge with slight modification confirmed this decree.

(3) The editor of Sir Dinshaw Mullas principles of Hindu Law. Expresses the opinion that in view the Explanation to S. 6 of the Hindu Succession Act, 1956, only one - third share in the coparcenery property would-be available for distribution - in this case between the plaintiff and the defendants - and if this is the correct interpretation of the section. In shriamabai Bhimgonda Patils case, 66 Bom LR 351 the Division Bench or which I was a member decided that , in view of S. 4 of this act, the wife right to the claim and a share at the notional partition was abrogated as it was merely in lieu of maintenances and therefore the whole of the share offer husband which was equal to that the to son, that the one-half, was available for partition between the next heirs. If that the judgment is rights the plaintiff would-be entitled to one-fourth share in the suit property.

(4) The third view now propounded on behalf of the widow in the present case is that the she is entitled to one = third share of the at notional partition and one- half of the one - third share on succession to her husbands share, which together becomes one - half of the whole property.

(5)The question is by no means an easy one to answer. The Hindu Succession Act, 1956, was brought onto statute Book with the purpose of amending and codifying the law relating to the intestate succession amongst Hindus, section 6 a of the Act, recognize the principles of the Hindu law that coparcenery property goes by the survivorship. The proviso oft section, however qualities the law of survivorship only Explanation 1 to the proviso is material to the present question, Section 6 is as follows:

"When a male Hindu and dies after the commencement of this act, having at the time of dis death an interest in Mitakshara Coparcencery property in hisinterest in the property shall desolate by surviouship upon the surviving members of the coparcenery and not in accordance and with this act.

Provided that if the decades had left him surviving a female relative specified in class I of the schedule of a male relative specified is that class who claims through such female relative the interest of the deceases in the Mitak share coparcencery of property shall devlove by testamentary or intestate succession , as the case may be under the this act and not by survivorship.

Explanation 1, - For the purpose of this section, the interest of the Hindu Mitakshara conparcener shall be deemed to be the share I the property that would have been allotted to him it a partition to the property has taken place immediately of before his death, irrespective of whether he was entitled to claim partition or note.

Explanation 2, - Nothing contained in the proviso to this section shall be constructed as enabling aspersion who has separated himself from the coparcenery before the death of the deceased or any of this heir to claim on in the a share in the interest referred to therein."

(6) Mr. Rane Supports the view in Shirambais case, 66 Bom LR 351. Accoridng to him, the principal adopted inthat case namely that the share towhich the wife or widow is entitled atpartitions is lost to her by reason of if not S. 4 of the Hindu Succession act and at any rate S. 4 of the Hindu adoptions and Maintenances act, 1956 the section being worded in similar

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