TMI Blog1963 (12) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... o 1/3 plus 1/15 i.e. 2/5. Defendant No. 1 contended that she was entitled to only. 1/10th share and no more. The learned trial Judge has. held that the plaintiff has 2/5th share in the family properties, and the learned District Judge has held that the plaintiff is entitled to 1/15th share, but as the defendants had admitted it to be 1/10th, he decreed accordingly. The question that arises is not easy to answer. 2a. Section 6 of the Hindu Succession Act, 1956, is as follows: When a male Hindu dies after the commencement of this 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 ths surviving members of the coparcenary and not in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst as at death, and allotment of shares to the shares and then for a division of the property falling to the share of the deceased coparcener amongst his heirs. The anomaly therefore would be that l/3rd share which would go to the mother on actual partition she will not get, as there is not a partition during the life-time of father, nor does the section so provide and it will remain with the son and the widow and daughters will get a share only out of 1/3rd of the entire property. This is not the only complication as will appear from the next para. 3. In the present case defendants 2, 3 and 4 are daughters some of whom are unmarried. Under Hindu Lavi before division between cosharers their maintenance and expenses for their marriage mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result would be that the property available for division between her and other heirs would be reduced. It would be highly unjust to her and to the other heirs and the sons' shares will he augmented (or which there is no rational reason. The question is, was such a result intended by the legislature? 5. We must construe the section not by itself but along with the other provisions having due regard to the scheme of the Act. Section 4 in this connection may also be noticed. It gives overriding effect to the provisions of the Act and is as follows: 4(1) Save as otherwise expressly provided In 1his Act. (a) any text, rule or Interrelation of Hindu law or any custom or usage as part of that law in force immediately before the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f partition for the obvious reason that, it does not enjoin actual partition and does not enable the mother fo reduce her share into possession. The explanation is intended to be of general application and cannot be treated as saving the abovesaid rule of partition. To uphold the contention would produce most unjust results which could never have been intended by the legislature. 6. We therefore hold that the interest of a Hindu Mitakshara coparcener available for division under this section will be such share in the properly as would be allotted to him if a partition of the property had taken place immediately before his death amongst the coparceners according to the rules of Hindu law with the qualification that the rule of Hindu law p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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