JUDGMENT

1. Heard the learned counsel for the appellant and also the counsel appearing for respondents.

2. This Regular Second Appeal is filed being aggrieved by the concurrent finding of the Trial Court and also the First Appellate Court and the Trial Court granted 1/5th share in favour of the plaintiff and the same is confirmed by the First Appellate Court, since the plaintiff is the daughter of Laxmana Naika. The brothers and other sisters are defendants. No dispute with regard to the relationship between the parties and the father died in the year 2001. The suit is filed in the year 2007, subsequent to the amendment to Section 6 of Hindu Succession Act, 2005.

3. The main contention of the counsel for appellant before this Court that the plaintiff has not pleaded in the plaint specifically with regard to the devolution of interest on the plaintiff and also he contended that defendant Nos.3 and 4 were born before

09.09.2005, the date on which the provisions of the amended Act came into force and whether they are entitled for a share by virtue of the amended provision and proof of coparcener, there was a devolutionary interest on them.

4. This Court while admitting the appeal, framed the following substantial question of law:

1) Whether the judgments of the Trial Court and Appellate Court are sustainable in the absence of material proof or specific pleading that there was devolution of interest on the plaintiff?

2) As admittedly defendant Nos.3 and 4 were born before 09.09.2005 the date on which the provisions of the amended Act came into force, whether they are entitled to a share by virtue of the amended provision or, on proof of co-parcenary, there was a devolutionary interest upon them?

5. The counsel appearing for the appellant would vehemently contend that the three judge judgment of Apex Court reported in AIR 1978 SUPREME COURT 1239 IN CASE OF GURUPAD KHANDAPPA MAGDUM V/S HIRABAI KHANDAPPA MAGDUM AND OTHERS and the counsel referred paragraph No.13 of the judgment which reads as follows:

“ In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, 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 that property had taken place immediately before his death. 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 coparcenary 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 limited 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 bad separated from one another and had received a share in the partition which had taken place during the life time 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 t