1972 Supreme(Del) 51

High Court Of Delhi
KANHIYA LAL - Appellant
Versus
JAMNA DEVI - Respondent
REGULAR FIRST APPEAL 85D of 1961
Decided On : 02/18/1972

The share of the daughters of the deceased, namely, defendants Nos. 6 and 7 will, instead of l/8th in the whole joint family property, be 1/56th each.

Headnote:

HINDU SUCCESSION ACT, 1956 - SECTION 6 - COPARCENARY PROPERTY - DEVOLUTION BY SURVIVORSHIP - EXCEPTION - FEMALE RELATIVES - SHARE - NO PARTITION - JOINT HINDU FAMILY PROPERTY - COPARCENARY PROPERTY - DISTINCTION - SHARE OF DAUGHTERS.

Fact of the Case:

Propostius Bhagwan Dass died on 25th October, 1957, leaving behind the plaintiff and defendants Nos. 2, 3. 4 and 5 as sons and defendant No. 1 as his widow and defendants Nos. 6 and 7 as his daughters. The suit was contested mainly by defendant No. 5, although written statements were filed contesting the suit on behalf of the first defendant as well as defendants Nos. 2, 3 and 4. The daughters defendants Nos. 6 and 7 also filed their written statements. Replications to the written statements were filed, and on the pleadings of the parties, two preliminary issues were framed on 11th February, 1959 (1) as to whether the plaint had been correctly valued for purposes of court-fees and jurisdiction and (2) whether the suit for rendition of accounts was not maintainable. Both these issues were decided by an order of the Subordinate Judge dated 5th June, 1959, as a consequence of which the plaint was allowed to be amended, but the decision of the said issues has not been challenged before us and does not survive for decision.

Finding of the Court:

The Court held that the share of the deceased on partition before his death would have come to one-seventh as his wife as mentioned in paragraph 315 of Mulla s Hindu Law, would have been entitled to obtain a share along with her five sons and now the daughters would, therefore, get one-eighth share of one- seventh that is 1/56th share each. The Court also held that defendant No. 5 had been working as Manager of the business and not as an alleged employee, which assertion of the defendant has been disbelieved. The Court below has also found that he had been getting substantial amounts from the business of the press and had been depositing them in his account and he had not offered any explanation for the said deposits in his account and the Court came to the conclusion that defendant No. 5 had been converting the income of the press, which was joint family property, to his personal use.

Issues: 1. Whether the share of the daughters of the deceased, namely, defendants Nos. 6 and 7 will, instead of l/8th in the whole joint family property, be 1/56th each. 2. Whether defendant No. 5 had been working as Manager of the business and not as an alleged employee. 3. Whether defendant No. 5 had been getting substantial amounts from the business of the press and had been depositing them in his account and he had not offered any explanation for the said deposits in his account.

Ratio Decidendi: 1. Section 6 of the Hindu Succession Act, 1956 provides that when a male Hindu dies after the commencement of the 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 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 Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. 2. The term joint family property is synonymous with coparcenary property and it would, therefore, not make any difference in the construction and effect of section 6 of the Act that the widow and daughters of the deceased are members of the joint Hindu family and not of the coparcenary. 3. The interest of a deceased coparcener is quantified and provision is made for its intestate succession under section 6 and the same interest is made capable of testamentary disposition. 4. The partition contemplated by Explanation I to section 6 was. as held by the High Court of Kerala in Venkiteswara Pai vs. Luis, AIR 1964 Ker 1250, a notional partition and not actual partition and that it was not an act inter vivos by the de- ceased, but it was merely a concept devolved by the Legislature to ascertain the shares of the deceased or the quantum of the property is liable to testamentary or intestate succession. 5. A manager of joint Hindu family is liable to render account upon partition for the assets which he has received and also for the expenses which have in fact been incurred and the liability to render account would arise on proof of misappropriation or fraudulent and improper conversion.

Final Decision: The appeal and the cross-appeal which was treated as cross-objections stand disposed of. In view of the partial success of the parties, they will bear their respective costs in this Court.