1. This is plaintiffs appeal, whose suit for recovery of an amount under a sarkat note has been dismissed by the two Courts below.
2. So far as this appeal is concerned, no dispute on facts survives for consideration. Certain findings have been given by the two Courts below which are normally binding on this Court, Even otherwise, they appear to be in consonance with the facts and circumstances and do not require to be reconsidered. The position of facts that appears to be proved and which could be taken as a basis for the decision of this second appeal is this: Mithamal, the father of the plaintiff, as a karta of the joint Hindu family, advanced a loan to the defendant on 19-6-1950 under a sarkat note. The loan was renewed br acknowledged by another sarkat note, dated 9-6-1953, There was a third sarkat note, dated 9-6-1956. After their renewal Mithamal died in or about February 1958. The plaintiff, who is the eldest son of Mithamal, has filed the present suit on 15-6-1959 for recovery of the amount due under the sarkat note. The plaintiff has claimed the principal amount under the sarkat note together with interest.
3. Several defences were raised. The defendant pleaded that he was not paid any amount at all Alternatively, it was pleaded that Mithamal never advanced the amount as a karta of the joint Hindu family. It was his personal transaction and the suit by the plaintiff alone is not valid. Mithamal left behind, among other heirs, two married daughters. Without Joining them as parties, the suit was not a properly representative suit and must fail. Yet another defence was that the sarkat note was an acknowledgment within the meaning of Article 1 of Schedule I of the Stamp Act. As the subsequent acknowledgment notes do not bear any stamp, they are inadmissible in evidence for any purpose. In that event the suit onthe original cause of action would be barred by limitation. It was also pointed out that the advance was in the nature of money lending transaction and the plaintiff or his father not having had any licence under the Money lenders Act the suit ought to be dismissed.
4. The Trial Court as well as the first Appellate Court gave concurrent findings on some of the points and differing ones on some others. Bom Courts held that the defence of non-payment had no substance and the consideration of the document had been proved. They also held concurrently that Mithamal and the plaintiff formed a joint Hindu family, and the money advanced belonged to the joint family. It was, therefore, a transaction of the joint family. The Trial Court held that the transaction was a money lending transaction, whereas the Appellate Court held that this was a single transaction of the plaintiff's family and could not be described as a money lending transaction. However, both Courts unanimously held that the sarkat notes of 1953 and 1956 were in the nature of acknowledgments within the meaning of Article 1 of Schedule I of the Stamp Act, and in the absence of proper stamp, they were not admissible in evidence at all. Both of them further held that, by the death of Mithamal, the principle of representation of the joint family property by its karta was not available to the present plaintiff. Mithamal is survived by two married daughters who are female relatives specified in Class I of the Schedule to the Hindu Succession Act as laid down by the proviso to Section 6 and, as such, the interest of the deceased Mithamal in the joint Hindu family property partly devolved on them by succession, The plaintiff could not represent his sisters as their interest could not be described as joint family property. By the principle of Section 45 of the Contract Act, the suit by the plaintiff alone is not maintainable and deserves to be dismissed. With these findings, both the Courts below dismissed the suit. Plaintiff, being aggrieved has filed this second appeal.
5. For the purpose of this appeal, I may point out that the finding of the Appellate Court that the suit transaction was a single transaction of the plaintiff's family and as such did not amount to money lending business, is not being challenged before me. I will, therefore, take it that the sarkat note of 1950 was a transaction with consideration and it was a single transaction of the plaintiff's family. I will also hold it proved that Mithamal and the plaintiff formed a joint Hindu family and the suit transaction was that of the joint Hindu family. With these findings of fact, only two questions of law survive for consideration. The first is whether the sarkat notes of 1953 and 1956 amount to acknowledgments within the meaning of Article 1 of Schedule I of the Stamp Act, or they are otherwise acknowledgments only for the purpose of Section 19 of theLimitation Act, The second point for consideration is whether the present suit by the plaintiff without impleading his sisters, either as plaintiffs or defendants, is legally maintainable,
6. So far as the first point is concerned, the original sarkat note of 1950 has already been admitted by the Courts below in evidence. As pointed out by the first Appellate Court, no particular objection was raised to it and the suit did not seem to be based upon that document, Under the circumstances, the sarkat note having been admitted in evidence, it was not open to the defendant to challenge its admissibility at a later stage. However, the two subsequent sarkat notes of 1953 and 1956 are being used by the plaintiff for the purpose of bringing the suit within limitation, as well as basing the claim on them. It is, therefore, necessary to examine the nature of these two documents.
7. It is not being disputed or doubted that both these documents are acknowledgments. Unless they are acknowledgments, they would not fall either under Section 19 of the Limitation Act, or Article 1 of Schedule I of the Stamp Act. The entire writing of the two sarkat notes of 1953 and 1958 appears to be in the handwriting of the defendant. He has signed below those entries. There is an attestation by a witness below each of these entries. The defendant admits in these entries in the account books that the amount of Rs. 2060/-and Rs. 2200/- respectively was Khata bald from the last page of the note book. It is, therefore, an unconditional acknowledgment that he is liable to pay the amount mention-ed as brought forward in the account books. Would such an acknowledgment fall only under Section 19 of the Limitation Act of 1908, or would it fall under Article 1 of Schedule I of the Stamp Act? it is possible that a particular document in question may fall under both the provisions. It may serve as an acknowledgment under Section 19 of the Limitation Act, but the contents and the surrounding circumstances might show that it is also an acknowledgment under Article 1 of Schedule I of the Stamp Act. The moment document falls under Article 1 of Schedule I of the Stamp Act, it is required to be affixed with the requisite stamp. In the absence of any such stamp, the document would be inadmissible in evidence for any purpose as laid down by Section 35 of the Indian Stamp Act. However, an acknowledgment which is not one under Article 1 of Schedule I of the Stamp Act but is otherwise an acknowledgment of the debt saving limitation under Section 19 of the Limitation Act, 1908, the insufficiency or want of stamp is irrelevant and the document-would still be admissible for proving the acknowledgment.
8. What is it therefore that distinguishes the acknowledgment under the Limitation Act from that tinder the Indian Stamp Act.The wording of Section 19 of the Limitation Act, 1908, shows that where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. If the writing did not bear any date, it is open to prove by evidence that it was executed on a particular date,
9. As against this, acknowledgment falling under Article 1 of Schedule I of the Stamp Act requires that it should be in writing relating to a debt exceeding Rs. 20/-. It should be a writing written or signed by, or on behalf of, a debtor in order to supply evidence of such debt in any book (other than a banker's pass book) or on a separate piece of paper when such book or paper is left in the creditor's possession. There is a proviso which lays down that such acknowledgment does not contain any promise to pay the debt or any stipulation to pay interest or to deliver any goods or other property. The distinguishing feature between the two acknowledgments appears to be that the acknowledgment under the Limitation Act merely, acknowledges the liability in respect of any property or right. The acknowledgment falling under the Stamp Act, however, requires that it should supply evidence of such debt in any book or a separate piece of paper and that such book or piece of paper is to be left in the possession of the creditor. This being the distinction, it appears to me that by looking to the document executed by the debtor, it is necessary to ascertain the Intention of the parties. Since a document could contain in it several lands of averments it is necessary to determine the dominant intention of the parties in executing the document concerned. Was it meant to be a document supplying evidence of the debt or was it merely an acknowledgment of liability in respect of the debt or property supplying a fresh period of limitation? in order to find out the real intention of the parties, it is permissible to take into account the surrounding circumstances. If the result of such examination leads to the conclusion that the document was not intended to sup-l ply evidence of the debt, then it may not fell under Article 1 of Schedule I of the| Stamp Act.
10. In J. C. Mehta v. P. C. Mody, : AIR1959Bom289 a Division Bench of this Court observed as follows:
'The question as to whether a document falls within Article 1 of Schedule I of the Stamp Act depends, as the article itself says, on the decision whether the document was given in order to supply evidence of a debt, and that must be the paramount intention or the person giving the document. The question that the Court has to ask looking at the document and looking at the surrounding circumstances is whether the document is given in order to supply a statement of account or whether the document is given in order to supply evidence of a debt.'
When I examined the wording of the two acknowledgments of 1953 and 1956 in the light of the above principle, I am satisfied on the wording as well as the surrounding circumstances that the dominant intention of the defendant was not to supply evidence of the debt. There was already enough evidence of the debt, The writing appears to be in a bound book and the endorsement starts with the word 'Khata baki'. Interest is added to the principal amount from the date of the previous entry. Such an entry in a bound book, written and signed by the defendant is obviously in the nature of accounts stated. By the statement of account, the defendant merely acknowledges the debt and does not supply evidence of such debt. It appears that the defendant was accommodated by the plaintiffs father by making an advance of Rs. 2000/- and the defendant was unable to return the amount. Instead of precipitating the action, acknowledgments were executed from time to time, so that a fresh period of limitation could be computed and immediate filing of a suit may not become necessary. The dominant intention of the executant, therefore, was not to supply evidence of debt, but was merely to acknowledge unconditional liability to pay. The drawing of proper inference from proved facts is a mixed question of law and fact. Both the Courts below have fallen into an error in thinking that any acknowledgment immediately fails under Article 1 of Schedule I of the Stamp Act. The distinction between the two acknowledgments is clear, and how to distinguish one from the other is also laid down by clear authorities in that behalf. I am, therefore, satisfied on examination of the two documents of 1953 and 1956 that they do not fall under Article 1 of Schedule I of the Stamp Act. Both the documents are, therefore, admissible in evidence for proving the acknowledgment of the debt. They also provide a fresh cause of action and the suit based on them is clearly within time.
11. This brings me to the consideration of the last defence which is also more or less a technical defence. Undoubtedly, there was a joint Hindu family between the plaintiff and his deceased father Mithamal, Mithamal died in February, 1958 when the Hindu Succession Act had already come into force. Section 4 of this Act enacts the overriding effect of the Act over what may be described as the traditional Hindu Law settled and laid down by judicial pronouncements from time to time. Sub-section (1) of Section 4 lays down that-
'Save as otherwise expressly provided in this Act -- (a) any test, rule or interpretation of Hindu Law or any custom or usage aspart of that law in force immediately before the commencement of this Act shall cease to. have effect with respect to any matter for which provision is made in this Act.'
Clause (b) further provides that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. What is obvious from these provisions in that to the extent of the matter covered by this Act and to the extent to which the provisions have been made by this Act, the customary Hindu law together with its interpretation by Courts ceases to have any effect. It also follows from the provisions of Section 4 that if a particular matter is not covered or is not provided by the 'Act, the customary Hindu Law prevalent before the passing of this Act continues to operate in the field which is not covered by the new Act.
12. Section 6 is introduced in the Hindu Succession Act for the purpose of effecting a change in the normal mode in which the joint family property used to pass from one person to another in a joint Hindu family. In a joint Hindu family possessing joint family property, the male members form a coparcenary. When a coparcener dies, his right, title and interest in the joint family property go by survivorship to the other co-parceners. This normal mode in which the property passed from person to. person in a joint Hindu family was sought to be changed by introducing a certain type of succession in the case of the interest of the coparcener in the joint Hindu family property, Section 6 in the first instance speaks of Mitakshara coparcenary property. The opening substantive part of Section 6 provides that 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. The normal devolution by survivorship, which was a distinguishing feature of the Mitakshara coparcenary, is sought to be maintained even by the Hindu Succession Act. However, there is a proviso added to this section which carves out a case when the family consists of certain types of members. The proviso to Section 6 and Explanation 1 are the main provisions which fall for consideration in this appeal. For the purpose of ready reference, I would reproduce the provisions of Section 6 including Explanation 1.
'6. When a male Hindu 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:
Provided that, if the deceased has left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1. -- For the purposes of this section, 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 en-titled to claim partition or not.'
If the deceased had left behind him any female relative specified in Class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. This is provided by the proviso. How the interest of the deceased in the Mitakshara coparcenary property shall be determined for the purpose of devolution, whether testamentary or intestate contemplated by the proviso, is provided in Explanation 1. Explanation 1 lays down that for the purposes of this section, the interest of & 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. Explanation 1 introduces as if (sic) a fictional or a notional partition Immediately before the death of the coparcener concerned. The share, which would have been allotted in that imaginary fictional or notional partition, is his interest which is now to devolve by testamentary or intestate succession under the Act. Section 30 of this Act provides for the testamentary disposition of the undivided interest in the joint Hindu family property belonging to a Hindu Mitakshara coparcenary. What precisely then is the effect of the death of a coparcener upon the pint family property of the coparcenary. According to Mr. Ranade, learned Counsel appearing for the respondent, the effect of the operation of Section 6 of the Hindu Succession Act is to bring about a partition of the joint family property so far as the interest of the deceased is concerned. His interest is separated from the joint family and devolves upon the relatives specified in class 1 of the Schedule by succession. The interest of the deceased does not devolve upon the remaining members of the family by survivorship. The minimum effect of such a devolution obviously is that the representation of the entire property by the karta of the family ceases. Ho could not effectively represent the entire Interest Including the interest devolved upon the females or male heirs claiming through females, and to that extent their presence either as plaintiffs or defendants in a suit relating to the estate of the deceased is absolutely necessary. Mr. Banade also relies upon the judgments of the Calcutta and the Kerala High Courts in this behalf, I will presently examine them and consider their effect.
13. As against this, Mr. Phadke, learned Counsel appearing for the appellant, argues that the anxiety of the Legislature as may be seen from the opening part of Section 6 of the Hindu Succession Act, is to maintain the Mitakshara coparcenary and the devolution of property by survivorship among the members of the coparcenary which is a special and distinguishing feature of the Mitakshara joint Hindu family. Since Section 4 of that Act says that the customary Hindu Law shall be deemed to have been overridden to fie extent of the provisions enacted in the Hindu Succession Act, but will save those provisions which are (not?) expressly provided for in this Act, it is important to consider the effect of the substantive part of Section 6. It has been expressly provided that the Mitakshara coparcenary together with its special feature of the devolution of property by survivorship shall be maintained and will not be affected. He concedes that the proviso undoubtedly grafts an exception over the broad principle of continuance of Mitakshara coparcenary and its property. Since the proviso carves out only one kind of case where Courts come across facts falling under the proviso, the operation of that proviso should be so restricted as to give effect to that proviso within the limited field covered by it. In order that the proviso should be given effect to, the interest of the deceased coparcener had to be determined or declared. That function is performed by Explanation 1. The Hindu Succession Act does not declare that the death of a coparcener in a Mitakshara Coparcenary amounts to a partition of the property. It also does not declare that the death brings about disruption of the joint Hindu family. The Explanation merely resorts to a fiction for the purpose of ascertaining the interest of the deceased, When fictions are introduced in statutes for the purpose of achieving certain objects the operation of such fictions should be restricted to the purposes they are supposed to serve. He, therefore, says that the married daughters may have a share in the interest which their father Mithamal had in the Mitakshara coparcenary and, to that extent, a part of the property may devolve upon them by intestate succession. If this fiction of a notional partition is to be resorted to only for the purpose of ascertaining the share or interest of the daughters in the interest of the deceased coparcener, it could not have and should not be allowed to have the effect of disrupting the joint family. Thejoint family continues as before with the additional liability as it were to carve out an interest of the heirs mentioned in Class 1 of the Schedule to the Hindu Succession Act. In spite of the fact that the two married sisters of the plaintiff have some share or interest in the joint family property, the plaintiff should still be held to be the karta and representative of the entire family property. In that case, so far as the representation to the outsiders like the defendant is concerned, the plaintiff should be held to be the proper representative of the family and as such entitled to file the suit alone in his own name.
14. Before I refer to the judgments of the Calcutta and the Kerala High Courts on which Mr. Ranade particularly relies, I may point out that a large number of cases relating to the provisions of the Hindu Women's Rights to Property Act, 1937 were cited at the Bar. The main purpose in citing those judgments was to suggest an approach to the interpretation of the Hindu Succession Act. Under the provisions of the Hindu Women's Rights to Property Act and particularly Sub-sections (2) and (3) of Section 3, additional rights were conferred upon widows in a joint Hindu family. Before that Act, the only right of a Hindu widow was the right of maintenance and, to that extent only, it was a right in property. As a mother, the widow could get a share equal to that of the sons when the sons were out to partition. However, by Act No. 18 of 1937 as amended by Act No. 11 of 1938 a special position was given to a widow in the family so far as the joint family property was concerned. After the coming into operation of that Act, whenever a Hindu died, having at the time of his death an interest in the joint Hindu family property, his widow was entitled to, subject to the provisions of Sub-section (3), the same interest in the property which he himself had. Sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act, 1937, provides that any interest devolving on a Hindu widow under the provisions or this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner. In other words, the Hindu widow is made a representative of her deceased husband, but with the restriction that the interest shall be the limited interest known as Hindu Woman's estate. Several questions arose for consideration under the provisions of that Act. When the interest of the deceased in a coparcenary devolves upon his widow in the manner indicated under the provisions of that Act, does it amount to a cessation of the joint Hindu family? Does the Act virtually make the widow a coparcener in the family? If the widow enforces a right of partition given to her which right has been described as 'the same right as a maleowner', what is the effect? Does the partition merely enure to her own personal benefit and does the property revert back to the family for the purpose of further devolution by survivorship, or in the alternative, does it amount to a partition as if effected by her own husband and disrupt the family once and for all? These questions are answered in various judgments cited before me. It is not necessary to take a complete resume of all the cases. However, I will refer to a few of them for pointing out the assistance which Mr. Phadke wants to draw from the principles evolved in those cases. For instance, in Nagappa Narayan v. Mukambe, : AIR1951Bom309 the nature of the widow's right under the Hindu Women's Rights to Property Act fell for consideration. The Division Bench observed that the interest which the widow got in the joint family property was neither an interest by survivorship nor one by inheritance but was one specially created under the terms of the Act, By the mere fact that the widow has been given the same interest which her husband has had, there is no disruption of the joint Hindu family. On the contrary, there is continuance of the joint Hindu family with the additional feature that a widow has been given certain interest in the property. That interest of the widow is the same interest which her husband has had. Until, therefore, she effects a partition, or until otherwise the joint family comes to an end by disruption, that interest is a fluctuating interest which is liable to be increased or decreased according to the incidence of deaths and births in the family. The unity of the estate and community of possession still continue and the alienation by a karta for legal necessity will bind the interest of the widow in the family property. This principle has been reiterated by this Court again in the later judgments in Shivappa v. Yellawa, : AIR1954Bom47 and Mahadu v. Gajarabai, : AIR1954Bom442 . This approach is endorsed by the Supreme Court in Lakhmi Perumallu v. Krishnavenamma, : 1SCR26 . The Supreme Court has very briefly summarised the nature of interest of the widow and it may be noted in their words. In para. 22 this is what their Lordships say:
'As we have already pointed out the interest devolving upon the widow need not necessarily be either by survivorship or by inheritance but could also be in a third way i, e. by statute and where the interest is taken by her under a statute no further difficulty arises.'
15. Mr. Phadke argued before me that the same approach should be adopted in the case of the provisions of the Hindu Succession Act. As has been pointed out by this Court in : AIR1954Bom47 , piecemeal legislation made with the intention of making progressive changes is bound to lead to some complication. The Courts must, therefore, make an effort to reconcile the customary Hindu Law and the new provisions. Unless the new provisions specifically override the customary Hindu Law in terms of the provisions of Section 4 itself, the Courts are bound to give effect to the customary Hindu Law. The cases under the Hindu Women's Rights to Property Act have no direct bearing upon the interpretation of the provisions of the Hindu Succession Act. They were canvassed before me only with the limited object of indicating an approach to the new statutory Hindu Law. I find that the premises of the Hindu Women's Rights to Property Act and that of the Hindu Succession Act are not similar and, therefore, though the principle is evolved earlier, it may not be possible to use it to the fullest extent when specific words of the statutes are to be considered and interpreted.
16. This brings me to the consideration of the two judgments on which Mr. Ranade heavily relies. The first of them is a Full Bench judgment of the Kerala High Court in the case of Venkiteswara Pai v. Luis, : AIR1964Ker125 (FB). The facts of that case show that three members of the Hindu coparcenary made a contract for sale of property. A suit was filed against all three of them for specific performance of the contract of sale relating to the landed property belonging to the joint Hindu family. During the pendency of the suit and after the Hindu Succession Act came into force, one of the defendant members died intestate leaving behind a widow, daughters and sons. The plaintiff failed to implead all the legal representa relatives of the deceased and particularly the married daughters. The question that arose before the Kerala High Court was whether the failure to so implead the legal representa relatives of the deceased led to the abatement of the suit either wholly or partially. In that context, the Kerala High Court points out that the deceased member having left behind him a widow, sons and daughters, the proviso and the Explanations to Section 6 of the Hindu Succession Act were attracted and the result was that the share of the deceased in the coparcenary property must be deemed to have been partitioned out immediately before his death and to have devolved on his heirs. That share, being no more part of the coparcenary property is not within the competence of the Karta of the joint family to represent in the suit. On the facts of that case, it appeared that the coparcener had died pending the suit. Hence an ingenious argument was pressed in service on behalf of the plaintiff that the notional partition contemplated by Explanation 1 to Section 6 is an event which has taken place pending the suit. The partition and the devolution of interest under that partition is effected by the provisions of Section 52 of the Transfer of Property Act. This argument was negatived by the Kerala High Court by pointing out that the notional partition is solely for the purpose of ascertaining the extent of such interest as would be the subject matter of devolution when the deceased Hindu died undivided from his coparceners. That notional partition could not be stretched beyond ana could not be said to be a transfer inter vivos. There is not much discussion in the judgment on the main point of interest of the deceased devolving upon the heirs by intestate succession. A conclusion is drawn after quoting the provisions of Section 6 of the Hindu Succession Act that that share, being no more part of the coparcenary property, is not within the competence of the first defendant as the Karta of the joint family to represent in the suit. Having made this statement; the judgment proceeds to say that faced with this obvious difficulty, counsel contended that the partition deemed to have taken place in the life-time of the second defendant must be deemed to be a partition inter vivos. It, therefore, appears that the devolution of interest by succession to married daughters who are not members of the family as such, and cessation of the competence of the Karta to represent that interest was obvious to all concerned. It is entirely different that the Kerala High Court pressed into service Section 15 of the Specific Relief Act and proceeded to dispose of the case on the footing that the suit may be deemed to have abated only so far as the right, title and interest of the deceased coparcener and could be continued successfully against the other coparceners. The other judgment relied upon is Narayan Prasad v. Mutuni Kohain, : AIR1969Cal69 . The proceeding before the Calcutta High Court was a writ petition arising out of rent control proceedings. One Narayan Prasad as a Karta of the joint Hindu family initiated proceedings against the tenant for eviction before the Rent Controller. The family consisted of himself, three minor sons Mahendra Kumar, Surendra Kumar and Mahesh Kumar. Surendra Kumar a minor, died pending the Us before the Rent Controller, leaving behind his mother as his sole heir belonging to Class I of the Schedule to the Hindu Succession Act. The mother was not brought on record as legal representative of the deceased minor son, The question that arose for consideration was whether the proceedings could be continued lawfully by Narayan Prasad Ruia as a Karta? The Rent Controller merely expunged the name of the minor and proceeded with the case. In the appeal, the Appellate Authority held that the lis for eviction itself was not maintainable in the absence of the deceased Surendra Kumar Ruia. It is against that order that a writ petition was filed in the High Court. The discussion by the learned Single Judge of the Calcutta High Court regarding the provisions of Section 6 of the Hindu Succession Act is also very brief. He merely summarises the effect of the provisions and draws his final conclusion in the following words:
'4. Such then is the effect, by the conjoint Operation of the proviso and Explanation 1 to Section 6. What is seen, therefore, is a notional partition coupled with devolution of such notionally partitioned property upon Surendra kumar Ruia's mother. What remains then of Narayan Prasad Ruia as the Karta A Karta of a joint family property is quite an understandable concept. But a karta for a divided property, of property partitioned, notionally though, appears to be incomprehensible. So, the old Karta theory cannot help matters forward for the petitioner before me, and Narayan Prasad Ruia as karta cannot represent his deceased son's mother and necessarily his wife upon whom devolves the share of the properly after partition. The very nexus of the joint family property is gone. A conclusion as this is to be regretted, but cannot perhaps be helped.'
The judgment proceeds to point out what is decided by the Full Bench of the Kerala High Court and quotes a passage from that Judgment with approval, As yet there appears to be no reported judgment of this Court dealing with the question under consideration. Hence it is necessary to decide the effect of the Hindu Succession Act upon the suit of the present plaintiff in the light of the arguments raised and the authorities cited above.
17. It is true that the first portion of Section 6 of the Hindu Succession Act appears to be in the nature of a substantive provision exhibiting an anxiety to retain the Mitakshara coparcenary with its special incident of the principle of survivorship upon the death of a corparcener. The second part looks like the proviso qualifying the first portion. However, on a proper approach to She purpose and function of the Hindu Succession Act, it appears that the opening portion, as also the proviso, must be read, together for finding out whether they constitute one substantive provision. The very name of the Act suggests that it is meant first to amend the customary Hindu Law and to codify the Hindu Law to the extent provided in this Act, The Act has introduced several new heirs who had no locus standi at all under the various schools of Hindu Law. Restricting the discussion to the Mitakshara School, which is applicable to the parties before me, the mother and the daughter, for instance, or the male heirs claiming through the daughter, had no place in the hierarchy of heirs and survivors when there was a son living at the death of a coparcener. Undoubtedly, therefore, the Act contemplates giving heirship and, to that extent, share in the property represented by the deceased. The Legislature however, contemplated both kinds of females. There would be coparcenaries where the deceased coparcener may leave behind female heirs or male heirs claiming through female relatives mentioned in Class I. There may be coparcenaries where the deceased may not have survived him any of the female relarelatives or male relatives mentioned in Class I. Both these types of coparcenaries must be covered by the new legislation. In those cases, where there is no female relative mentioned in Class I or male relatives claiming through female relatives mentioned in Class I, the opening part of Section 6 applies and it lays down that the principle of survivorship will operate as before in respect of such a coparcenary. If, however, the deceased coparcener has female relatives or male relatives claiming through female relatives mentioned in Class I to the Schedule, then the proviso becomes operative and not the opening portion of the section. Both the parts, therefore, simultaneously operate and are applicable either to one set of circumstances or the other. It is not possible for me to say that the proviso is in the nature of an exception to the earlier part of the section. On the contrary, the two provisions read together cover every type of case. As I pointed out earlier, there can be only two types of cases, one where the coparcener leaves behind female relatives or male relatives claiming through female relatives mentioned in Class I to the Schedule, and the other where no such relatives survive the deceased. Both these types of cases are equally normal and quite possible in almost all Mitakshara coparcena-, lies. Both parts of Section 6, namely, the opening section and the proviso are substantive provisions enacted by the Hindu Succession Act for the purpose of modifying the customary Hindu Law and creating new heirs and heir ships to the property of a de-| ceased Mitakshara. coparcener.
18. If this is the correct premises, then whenever we find that there are female relatives specified in Class I to the Schedule, or male relatives specified in that Class claiming through the female relatives, the interest of the deceased in the Mitakshara coparcenary property has to 'devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship'. This ending portion of the proviso again furnishes further clue to the interpretation of this Act When the female relatives or the male relatives claiming through female relatives specified in Class I exist, the interest of the deceased has to devolve 'not by survivorship but by testamentary or intestate succession,' There is a further qualification that is testamentary or intestate succession is to take place 'under this Act'.
19. It may be relevant to refer to the provisions of Section 30 under which a testamentary disposition of the undivided interest of a coparcener in the coparcenary property has become possible. Such a right was not available to a Hindu coparcener before. This right has been given to him by this Act, if the coparcener exercises his right vested in him under Section 80 and makes a testamentary disposition, his interest would devolve by testamentary succession upon thelegatees and the beneficiaries under the will. If he does not exercise this right duly vested in him but dies intestate leaving behind female relatives specified in Class I or male heirs claiming through female relatives, then his interest will devolve on them by intestate succession and 'under this Act'. When a testamentary as well as intestate succession had to take place 'under this Act' and of the 'interest of the deceased', how is that interest to be found out in a customary Mitak-shara coparcenary, that interest was always fluctuating. It was not a settled or fixed interest. It was liable to be increased or decreased according to the deaths and births in the family. When the Legislature decided to provide for testamentary as well as intestate succession to the interest of the deceased coparcener under certain circumstances, that interest had to be defined. Explanation 1, therefore, becomes relevant for the purpose of finding out that interest.
20. In order to ascertain the interest of the deceased coparcener, a fictional or a notional partition immediately prior to his death has been conceived or. That share, which 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, now represents the interest which shall devolve by succession under this Act it was argued before me by Mr. Banade by relying upon the judgments quoted above that the effect of Explanation is virtually to bring about a partition in the family. The Calcutta High Court points out that the very nexus of the joint family property is gone. If this is the effect of the succession under the new Act, whether testamentary or intestate, what else could we say than that there was a partition
21. I will at once hasten to point out that it is not necessary for the purpose of disposing of this litigation to decide whether a full partition of the family property takes place or it is a piecemeal partition with respect to the interest of the deceased and what is the effect in either case on the entire family property or the interest and rights and liabilities inter se between the other coparceners in the family. For instance, there may be a Mitakshara coparcenary joint family of four brothers in which one dies leaving behind him sons and daughters. Even if the one-fourth interest of the deceased is liable to devolve by succession on the sons and daughters, what happens to the remaining three brothers Do they continue joint and also continue to form a Mitakshara coparcenary of the customary type Pose the death of one brother together with the effect of succession of his interest under the Hindu Succession Act more or less operate as a partial partition to the extent of that brother, leaving the rest of the family joint and undivided P in a proper case where the facts demand a decision on this point, itwould be appropriate to consider the argument that will be advanced and then decide the issue,
22. Yet another instance may be taken. In a coparcenaries of four brothers, one brother dies leaving behind him daughters alone. The remaining three brothers immediately after the death of the fourth brother pay a definite amount to the daughters of the deceased and obtain from them full discharge in regard to their succession to the interest of the deceased in the coparcenary property. Do the three brothers in this instance continue joint and form a Mitakshara coparcenary, or the event of the death of the fourth brother has brought about disruption even among them. The theory of partition incorporated in Explanation 1 would require a closer examination when circumstances as mentioned above may arise for consideration. In the circumstances, I will confine my decision to the facts which arise for my consideration in this litigation and not go to generalisations relating to the theory of partition incorporated in Explanation 1 to Section 6.
23. For that purpose, I agree with Mr. Phadke that the partition contemplated by Explanation 1 is a notional partition. It need not be taken to be an actual partition. The Kerala High Court has provided a further clue to this approach by pointing out that it is not an act inter vivos by the deceased as it is not a partition by him at all. It is a concept evolved by the Legislature merely to ascertain the share of the deceased or the quantum of property that is liable to testamentary or intestate succession under the provisions of this Act.
24. Even then, after confining myself to the theory of notional partition which shall not be stretched beyond, what I find is that the interest of the deceased has to devolve by succession under the provisions of the Hindu Succession Act, and it is not to devolve by survivorship as contemplated by the customary Hindu Law. The Hindu Succession Act introduces a new class of heirs, and the devolution of interest on them by succession is a reality which must be accepted and faced. In a Hindu Coparcenary family, on the death of one of the coparceners, what we find is that the interest of the deceased has been ascertained for the purpose of separate succession under the Act and that succession introduces a new class of heirs who are not or may not be members of the Joint Hindu family. I am aware that a joint Hindu family is a larger body and the daughters are members of the joint family until they are married though they are not coparceners. Women introduced in the family by marriage are also members of the joint family though they could not be coparceners. Hence I say that the relatives, who are entitled to succeed under the Hindu Succession Act, may or may not be members of the joint Hindu family. As it happens, in the present case, the two daughters ofthe deceased Mithamal are married long before the present suit came to be filed; they could not, therefore, be the members of the joint Hindu family of the plaintiff. They have, on the death o the deceased, succeeded to a certain interest in the property. What that interest works out is a matter of calculation. As a matter of law, the interest which they inherit by succession vests in them immediately on the death of the deceased. This is a circumstance which must be recognised as a fact and must be given its due effect.
25. The minimum that can be said, therefore, is that when the death of a coparcener takes place in a family falling under the proviso to Section 6, the female heirs like the daughters in the present suit inherit an interest in the joint family property by succession under the Hindu Succession Act, and that interest or share becomes vested in them. When an outsider to a joint family gets vested interest in a part of the property, the fact that that share is yet to be worked out and a particular piece of property or share in every piece of property is to be banded over to him or her in lieu of the share, does not seem to be of any consequence. The property of the joint family is at that stage partly vested in members who are already members of the coparcenary and partly in some heirs who have nothing to do with the joint family as such. At any rate, the unmarried daughters, who may be members of the family, inherit the interest by succession under the Hindu Succession Act and not under the provisions of the customary Hindu Law, To that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until physical separation takes place. With that result following, one thing seems to be clear. The representative character of the karta is clearly affected. He cannot represent that property which vests in a person other than a coparcener. The nature of the property also suffers to some extent. The undivided coparcenary property had certain special characters. The essence of coparcenary under the Mitakshara law is the unity of ownership. As observed by the Privy Council in Katama Natchiar V, Rajah of Shivagunga (1864) 9 Moo Ind App 543.
'There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.'
This being the real nature of the coparcenary and its ownership of property, it is the introduction of an owner of property with a vested right other than the coparcener which vitiates this concept. Whether the karta still continues to represent the interest of the other coparceners or not may be opento debate but it fa difficult to assume that the karta will represent the right, tide and interest of a female relative or a male relative claiming through the female relative specified in Class 1 of the Schedule to the Hindu Succession Act. Such an owner of interest could obviously be a tenant in common with the other co-owners of the property. If there are more such heirs than one succeeding to the deceased how they take among themselves is provided by Section 19 of the Hindu Succession Act. They take in the first instance per capita and not per stirpes save as otherwise expressly provided in this Act. They also take as tenants-in-common and not as joint tenants. No survivorship is permitted even to the limited extent of joint tenancy of the English law among such heirs. The Hindu Succession Act has not enacted any such provision relating to the interest vesting in the female relatives or male relatives claiming through female relatives specified in Class 1 of the Schedule as it was unnecessary to do so. So far as the other coparceners in the family are concerned, they would take them and there would be no question of joint tenancy between such members and the remaining members of the family. In order to avoid any possible conflict of inheritance, a specific provision has been made under Section 19 of the Hindu Succession Act.
26. Before I finally conclude, I may point out that there is considerable difference between the provisions of the Hindu Women's Rights to Property Act, 1937 and the Hindu Succession Act. The Hindu Women's Rights to Property Act, 1937 was enacted to enlarge the rights of a class of persons, namely, the widow, and what was given to her was the representation of her husband in the family estate in spite of the husband's death, She is declared to have in the property the same interest as the husband himself had. She is also given a right of partition which is described as a right of partition 'as a male owner'. The reference to the interest of the husband and the right to partition as a male owner, are also indicative of the way of improvement in the Hindu Law in favour of a class of persons. Both these references clearly indicate that the improvement of the status of the widow was made within the framework of the customary Hindu Law. A Full Bench judgment of this Court in Ranu Thaku v. Santu Goga, : AIR1968Bom1 will clearly indicate the principles on which that Act was interpreted. Two important conclusions have been drawn by the Full Bench. It is pointed out that the interest which the widow represents is the same interest which her husband had in the coparcenery. The effect of that representation obviously was that the joint family continued as it was, and her interest was a fluctuating interest liable to normal incidence of increase or decrease. It got settled only when a partition was effected, For the purpose of considering the interestwhich the husband had, one has to go to the customary Hindu Law to find out the nature of the husband's interest. In the Same manner when she was given a right to enforce partition as a male member, the Full Bench points out that the right to effect partition was given to a coparcener and to none else. The reference to 'a male member' was advisedly made not to make her a full-fledged coparcener but to give her the same right of partition which the coparcener had. While considering the nature of right of claiming partition of a male member, one has again to go back to the customary Hindu Law. Contrary to this, the present enactment, namely, the Hindu Succession Act, includes some provisions which are clearly inconsistent with the customary Hindu Law. As I have pointed out above a new class of heirs is created, and in cases falling under the proviso to Section 6, survivorship has been statutorily banned and. testamentary and intestate succession has been introduced. The manner in which the case law under the Hindu Women's Rights to Property Act, 1937 was handled and approached may, therefore, be of very limited assistance in the construction of the provision of the Hindu Succession Act.
27. As a result of the discussion above, I would hold that the two married sisters of the plaintiff who were married long back before the institution of the suit had vested shares in the interest of their deceased father Mithamal in the joint Hindu family of which the plaintiff claims to be the karta. That Interest ceased to have the character of joint family property and as such the plaintiff could not represent that interest as a karta of the joint Hindu family. Since the interest of the two married daughters is not represented, the frame of the suit is defective and the suit is liable to be dismissed. In the circumstances, I would uphold the decree of dismissal of the suit passed by the two Courts below, though for reasons mentioned above. I would, therefore, dismiss this appeal,
28. Regarding the question of costs, I may point out that the effect of the Hindu Succession Act is not yet fully realised and appreciated by the people at large. The law has gone ahead in the mater of giving rights to certain heirs but the implications of those provisions are not properly understood. The claim of the plaintiff has been held proved by all the three Courts but his failure is more or less on technical grounds of want of proper parties. In the circumstances, so far as this Court is concerned, I make no order as to costs.
29. At this stage, an oral request is made on behalf of the appellant to file an appeal in Letters Patent, The prayer is granted.
30. Appeal dismissed.