S.D. Agarwala, J.
1. This is a plaintiff's second appeal arising out of a suit filed for partition of one property in suit. The property in suit is a house.
The plaintiff-appellant is the grandson of one Rahim Singh. The relevant pedigree if given below:
Angan Lal Budh Sen
| | | |
Taiyab Badla Titua |
| | | |
Aram Singh Ram Singh Lal Sing Gyan
2. Plaintiff-appellant's grandfather Rahim Singh was a Mohammedan. He had two sons, Angan Lal, and Budh Sen. There was a partition between Angan Lal and Budh Sen and the house in dispute came to the share of Budh Sen. When partition took place Angan Lal and Budh Sen were also Mohammedan. Thereafter Budh Sen and his sons were converted as Hindus and as such the case of the plaintiff-appellant was that being the grandson of Rahim Singh and son of Budh Sen he acquired right in the ancestral property and as such he is entitled to l/5th share in the property by virtue of the fact that he is a coparcener in the property. The suit was contested by Budh Sen (who has now died and bis heirs have been brought on the record) on the ground that he is not a Hindu and that Hindu Law was not applicable and that he is Mohammedan and as such, his property is not divisible during his lifetime and the contesting respondent alone is the owner of the house in suit.
3. The trial court dismissed the suit by judgment dated 29th Sep., 1973. Against fee said judgment an appeal was filed before the lower Appellate Court. The lower Appellate Court also dismissed the appeal on 16-11-1974. Against the judgment dated 16-11-1974 the present appeal has been filed, in this Court.
4. Shri Vinod Swarup, learned Counsel for the appellant has urged that in view of the finding recorded by the lower Appellate Court that Budh Sen and his sons had been converted as Hindus, the principles of Hindu Law would apply and since the property in the hands of Budh Sen was from his grandfather, he was entitled to 1/5th share in the property even during the lifetime of Budh Sen.
5. Shri Vinod Swarup has relied on Article 213 of the Principles of Hindu Law, 14th Edn. by Mulla. Article 213 is as follows :
'Section 213. Hindu Coparcenary.-- A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great grandsons of the holder of the joint property for the time being in other words, the three generations next to the holder in unbroken male descent.'
6. The submission of the learned Counsel is that once the plaintiff-appellant and the respondent became Hindus in law, the property would be deemed to be coparcenary property and as such the property in the hands of Budh Sen should be treated as a joint family property and the plaintiff-appellant is, therefore, entitled to a share.
7. In order to decide the question raised by the learned Counsel for the appellant, it would be necessary to determine which is the relevant date for determining the nature of the property in the hands of Budh Sen. Section 6 of the Hindu Succession Act and Explanation I is as follows :
'6. 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.
Explanation 1.-- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shah* 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. .... ..... ......'
8. From a reading of Section 6 along with the Expln. it is clear that the relevant date for the purposes of determining the nature of the property in the hands of a person is the date on which he acquires the said property either by succession or by devolution. It is admitted by the parties that on the date of death of Rahim Singh, the entire family was a Mohammedan including Rahim Singh and Budh Sen. Therefore, on the date when Rahim Singh died, the property acquired by Budh Sen would be according to the principles of Mohammedan Law. The principle of a joint Hindu family under the Hindu Law could not have been invoked on the date of death of Rahim Singh. Therefore, the property in the hands of Budh Sen was not ancestral property when he acquired it from Rahim Singh. It is further admitted that when the property was partitioned between Angan Lal and Budh Sen, both Angan Lal and Budh Sen were Mohammedans. Therefore, on partition Budh Sen got absolute right in the property and no right in the nature of ancestral property under the principles of Hindu Law. In the circumstances the property in the hands of Budh Sen cannot be treated as a joint Hindu family property. In the circumstances, the plaintiff-appellant cannot claim partition of the said property. Of course, after the death of Budh Sen the principles of Hindu Law would apply as far as succesion of property of Budh Sen is concerned. Since after partition Budh Sen and his branch were converted as Hindus.
9. The principle of Art. 213 would, therefore, not apply in the instant case. It is only after the death of Budh Sen that the property in the hands of his sons would acquire the nature of ancestral property and not before that.
10. In the result, the submission made by the learned Counsel for the appellant, in my opinion, does not have any substance. The appeal is accordingly dismissed but in the circumstances of the case parties are directed to bear their own costs.