Honble TATIA, J.–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 plaintiffs 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.

(3). 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.

(4). 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.

(5). 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.

(6). 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. Radha

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