2006 Supreme(SC) 823

2006(7) Supreme 383
SUPREME COURT OF INDIA
(From Rajasthan High Court)
B.N. Agarwal and P.P. Naolekar, JJ.
Anar Devi & Ors.—Appellants
versus
Parmeshwari Devi & Ors.—Respondents
Civil Appeal No. 4171 of 2006
Arising out of S.L.P. (C) No. 15677 of 2004)
With
Civil Appeal No. 4172 of 2006
(Arising out of S.L.P. (C) No. 19015 of 2004)
Decided on 8-9-2006
Counsel for the Parties :
For the Appellants : Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Rani Maheshwari and Ms. Pratibha Jain, Advocates.
For the Respondents : Aruneshwar Gupta, Addl. Advocate General, Naveen Kumar Singh, Mukul Sood, Kumar Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh, Advocates.

Headnote:HINDU LAW—Mitakshara coparcenary—Hindu Succession Act, 1956—Section 6—Devolution of interest in coparcenary property—Interest of deceased in Mitakshara coparcenary—Concept of a notional partition—When a coparcener dies leaving behind any female relative specified in class-I of Schedule to the Act or male relative claiming through such female relative, his undivided interest in Mitakshara coparcenary would not devolve upon surviving coparcener by survivorship but upon heirs by intestate succession—Suit for partition—Father of plaintiffs, two daughters, owned suit properties as ancestral and he adopted a son and then both of them constituted Mitakshara coparcenary—Father died in 1989 intestate in state of jointness with his adopted son—Notional partition of suit properties between deceased and his adopted son has to be assumed immediately before death—Plaintiffs became entitled to 1/6th share each and adopted son became entitled to half of suit property—Trial Court was not right holding plaintiffs entitled to 1/3rd share each.

       Held : Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., 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 the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition. (Para 11)

       In the case on hand, notional partition of the suit properties between Nagarmal and his adopted son Nemi Chand has to be assumed immediately before the death of Nagarmal and that being so Nagar Mals undivided interest in the suit property, which was half, devolved on his death upon his three children, i.e., the adopted son Nemi Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the adopted son, would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession as stated above. This being the position, each of the two plaintiffs was not entitled to one-third share in the suit property, but one-sixth and the remaining properties would go to the adopted son, Nemi Chand. (Para 12)

       Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and from the date of adoption, a coparcenary was constituted between the father and the adopted son. Upon the death of Nagar Mal, the property being ancestral, the half undivided interest of Nagar Mal therein devolved by rule of succession upon his three heirs, including Nemi Chand. This being the position each of the daughters would be entitled to one-sixth share in the suit properties and the remaining would go to the heirs of Nemi Chand, since deceased.(Para 13)

       Accordingly, the appeal is allowed, impugned judgments are set aside and suit for partition is decreed to the extent of one-sixth share of each of the two plaintiffs and the defendants, i.e., heirs of Nemi Chand shall be entitled to the remaining suit properties. Let a preliminary decree be, accordingly, drawn up and steps for preparation of final decree be taken by appointment of a pleader commissioner.(Para 14)