1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.263 OF 2009 Sau.Vijaya Dnyandeo Ingale, age: 41 years, Occ: Household, Resident of Garud Plot, Taluka Bhusawall, District Jalgaon. Appellant Versus 1 Sau. Yamunabai Pundlik Khachane, age: 48 years, Occ: Household, Resident of Khirdi Bk., Taluka Raver, District Jalgaon. 2 Tukaram Ananda Chaudhari, age: 67 years, Occ: pensioner; 3 Pramod Tukaram Chaudhari, age: 35 years, Occ: Service; 4 Chandrakant Tukaram Chaudhari, age: 31 years, Occ: Nil; Nos. 2 to 4 resident of Garud Plot, Taluka Bhusawal, District Jalgaon. 5 Murlidhar Ramdas Chaudhari, age: 47 years, Occ: Agriculturist; 6 Dilip Jairam Chaudhari, age: 42 years, Occ: Agriculturist; Nos.5 & 6 residents of Waghadi, Taluka Raver, District Jalgaon. Respondents Mr.Girish Rane, advocate for appellant. Mr.Hemant Surve, advocate for Respondent No.1. Mr.D.S.Raut, advocate for Respondents No.2 to 4. 2 Mr.S.K.Naikwade, advocate for Respondents No.5 & 6. CORAM: R.M.BORDE, J. Reserved on : 22 nd February, 2010. Pronounced on: 26 th February, 2010. JUDGMENT: 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by the Court below. 2 Plaintiff contends that one Vithal s/o Eko was her grand father. Vithal died somewhere in December 1956. He married with one Mankabai @ Mankarnikabai and had a daughter by name Dagdabai @ Suman born to her. After giving divorce to Mankarnikabai, it is stated that Vithal performed marriage with one Shevantabai and Vithal had a daughter by name Yamunabai born to Shevantabai, who is defendant no.1 in the instant suit. Shevantabai died on 05.05.1995, whereas, Dagdabai @ Suman died on 29.05.1979. Plaintiff Vijaya and defendants no. 2, 3 and 4 are sons and daughter of deceased Dagdabai. Plaintiff claims her undivided share to the extent of 1/8 th in the joint family property left behind by deceased Vithal. 3 Defendant no.1 Yamunabai has controverted claim raised by plaintiff raising contention that all the properties have been bequeathed in her name by her mother Shevantabai by executing a will deed. Yamunabai disputes entitlement of plaintiff to claim share in the joint family property. 4 The trial Court, after considering rival contentions granted decree in favour of plaintiff and held her entitled to receive 1/8 th share in the property. 3 5 Defendant No.1 Yamunabai preferred an appeal being Civil Appeal No.283/2007, which came to be heard and disposed of by District Judge-1, Jalgaon, who was pleased to allow same partly and first appellate Court has directed modification in the decree so far as it relates to allotment of share in favour of plaintiff Vijaya. First appellate Court held that plaintiff is entitled to receive 1/24 th share in suit properties. Plaintiff approached this Court raising exception to the appellate decree passed by first appellate Court. 6 This Court, while admitting the matter formulated following substantial question of law: • Whether, in the facts and circumstances of the present case, the first appellate Court committed patent error while disturbing the findings of the trial Court by erroneous calculation of the shares of the parties and there was no justification for modification of the judgment of the trial Court? 7 It is needless to go into other factual aspects of the matter as the only question, that arises for consideration in the appeal, is in respect of computation of shares allotted by first appellate Court while directing modification in the judgment and decree passed by the trial Court. The first appellate Court has considered question of distribution of shares in paragraph 29 of the judgment. It is recorded by the first appellate Court that allotment of shares has to be considered on the basis of partition just prior to death of Vithal. The first appellate Court, thus, held deceased Vithal entitled to have ½ share on notional partition and remaining ½ share to his wife Shevantabai. On demise of Vithal, first appellate Court computed allotment of share in favour of Dagdabai – mother of plaintiff to be 1/3 rd out of ½ allotted to Vithal. Dagdabai has 3 sons and one daughter and her husband. 4 First appellate Court, therefore proceeded to divide 1/6 th share allotted to Dagdabai in six sub divisions, thus, holding plaintiff entitled to 1/24 th share. 8 The first appellate Court has committed an error in computing shares in accordance with principle laid down in Section 6 of Hindu Succession Act. Section 6 of Hindu Succession Act prescribe devolution of interest in coparcenary property. The first appellate Court has presumed notional partition at the time of death of Vithal and computed shares allottable to the parties accordingly. It is to be noted that in the instant case, there is no Mitakshara coparcenary and as such Section 6 has no applicability. Section 6 reads thus: Section 6 – Devolution of interest in coparcenary property:- 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 the surviving members of the coparcenary and not in accordance with this Act. In the instant matter, at the time of death of Vithal, there is no male Hindu surviving in the family so as to constitute a coparcenary. In the absence of there being any Mitakshara coparcenary, the property has to be divided in accordance with principles laid down in Section 8, that is in respect of devolution of shares of a male Hindu dying intestate. It is to be noted that Section 8 applies to cases of male Hindu dying intestate, except those to which Section 6 applies. Section 6 applies to Hindu male having, at the time of his death, interest in Mitakshara coparcenary. Since it contemplates devolution of coparcenary property by survivorship, it postulates existence of coparcenary. 5 9 The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hidu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. (T. Venkata Subhamma Vs. T. Rattamma, reported in AIR 1987 SC 1775) 10 As stated earlier, for applicability of Section 6 of Hindu Succession Act, the precondition is existence of a Mitakshara coparcenary. In the instant matter, it is not case of the plaintiff or defendants that there existed a Hindu coparcenary or that the property is a coparcenary property. In such situation, therefore, devolution of shares shall be in accordance with Section 8 of the Hindu Succession Act, 1956. Section 8 reads thus: Section 8- General rules of succession in the case of males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. In the instant case, on demise of Vithal, he was survived by his 6 wife Shevantabai and two daughters, namely Dagdabai and Yamunabai, all of them being relatives specified in Class-I. The distribution of property amongst heirs in Class-I of the Schedule shall be in accordance with Section 10 of the Hindu Succession Act. As per Rule 1 of Section 10, intestate’s widow, or if there are more widows than one, all the widows together, shall take one share and as per Rule 2, the surviving sons and daughters and the mother of the intestate shall each take one share. Thus, on demise of Vithal, his wife Shevantabai shall take one share, whereas, his two daughters – Dagdabai and Yamunabai shall take one share each. 11 Thus, the share allottable to Shevantabai, Yamunabai and Dagdabai @ Suman shall be 1/3 rd each. The share of Dagdabai will devolve upon her three sons and a daughter. Thus, plaintiff and defendants no.2, 3 & 4 would together take 1/3 rd share and the share of plaintiff, thus, shall be 1/12 th. So far as Yamunabai – defendant no.1 is concerned, she can claim her own share as well as she would be entitled to the share of Shevantabai on the basis of will deed as well as she being legal heir of Shevantabai. The decree passed by the Courts below in respect of computation and allotment of shares is thus stands modified accordingly. 12 Appeal is allowed partly to the extent specified above. In the facts and circumstances of this case, there shall be no order as to costs. Civil Application No.3709 of 2009 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa26309