B.C. Misra, J.
1. This order will dispose of R.F.A No. 85-D of 1961 as well as R.F.A. No. 105-D of 1961. The second mentioned appeal has, by order dated 31st January, 1972, been allowed to be treated as a cross-objection in the first-mentioned appeal and the references in this judgment are, thereforee taken from the first-mentioned appeal.
2. This appeal has been filed by Kanhayalal, plaintiff, against the judgment and decree of a subordinate Judge, First Class, Delhi, dated 6th April, 1961, by which he passed a preliminary decree in a suit for partition instituted by the plaintiff-appellant on 30th May, 1958.
3. The prepositus Bhagwan Dass, plaintiff's father, died on 25th October, 1957, leaving behind the plaintiff and defendants Nos. 2, 3, 4 and 5 as sons and defendant No. 1 as his widow and defendants Nos, 6 and 7 as his daughters. This death evidently occurred after the commencement of the Hindu Succession Act, 1956 (hereinafter referred to as the Act) and the plaintiff filed a suit for partition of the joint Hindu family property which mainly consisted of a printing press and it is alleged that defendant No. 5, the youngest son of the deceased, had been managing the joint family properties and business for some years during the lifetime of his father as well as after his death and that he had (as mentioned in paragraph 15-A of the amended plaint) misappropriated and fraudulently and improperly converted of his own use the family properties and he was liable to render accounts to the plaintiff. It was also alleged in the plaint that the mother, defendant No. 1, had actively helped and colluded with defendant No. 5.
4. The suit was contested mainly by defendant No, 5, although written statements were filed contesting the suit on behalf of the first defendant as well as defendants Nos. 2, 3 and 4. The daughters, defendants Nos. 6 and 7, also filed their written statements. Replications to the written statements were filed, and on the pleadings of the parties, two preliminary issues were framed on 11th February, 1959 (1) as to whether the plaint had been correctly valued for purposes of court-fees and jurisdiction and (2) whether the suit for rendition of accounts was not maintainable. Both these issues were decided by an order of the Subordinate Judge dated 5th June, 1959, as a consequence of which the plaint was allowed to be amended, but the decision of the said and does not survive for decision. On the merits of the case, the following issues were framed on 27th October, 1959:-
'1. Whether defendant No. 5 is an accounting party? O.P.P.
2. Whether the site in question was validly gifted to defendant No. 5? O.P.D. No. 5.
3. Whether the superstructure on the site was raised by the defendant No. 5 with his own funds? O.P.D. No. 5.
4. Whether defendants Nos. 6 and 7 are entitled to a share? If so, to what share? O.P.D.
5. Whether defendant No. 1 is entitled to maintenance? If so, with what effect? O.P.D. No. 1.
6. What are the assets and liabilities left by Shri Bhagwan Dass? O.P. Parties.
The lower Court by the judgment under appeal has answered the first issue in favor of the plaintiff and held defendant No. 5 to be an accounting party. Issue No. 2 was decided against the defendants. In answer to issue No. 4, the Court allotted one-eight share of the property each to the plaintiff's sisters, defendants Nos 6 and 7. Issue No. 5 was left open to be decided at the time of the passing of the final decree. With regard to Issue No. 6, the Court found that the joint Hindu family property consisted of business known as B. K. Press along with the building and the plot of land where the press was housed and the Court further observed that the precise assets and liabilities of B.K. Press would be decided after the parties had led evidence before the local Commissioner and he has submitted his report to the Court. As a result, the Court decreed the suit and appointed a local Commissioner for suggesting a mode of partition and ascertaining the market value of the building and machinery of the B.K. Press and working out the assets and liabilities of the and the amount which had been diverted and converted by defendant Nos. 1 and 5 to their own use and also about the security or deposits of the press lying with the Government departments or other firms end also about the sale of machinery if any effected by defendant No. 5 after the demise of the propositus. He also ordered that the Commission will prepare a report on the income and expenditure of the press not only after the death of the propositus but also for the period prior to his death.
5. In this appeal, the plaintiff has only challenged the finding of the Court below on issue No. 4 with regard to the share of his sisters. defendants Nos. 6 and 7. In cross-objection. the only point pressed before us is issue No. 1 with regard to defendant No. 5 being the accounting party.
6. The appellant in support of his contention has relied upon Section 6 of the Act which come into force on 17th June 1956 and admittedly governs the succession notwithstanding any other text rule or interpretation of Hindu law ( Section 6 of the Act ) is reproduced below for ready reference:--
'When a male Hindu dies after the commencement of the 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 surving members of the coparcenary and not in accordance with this Act:
Provided that. if the deceased had 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.
Explanationn 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 entitled to claim partition or not.
Explanationn 2.-- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.'
An analysis of the section shows that the Mitakshara coparcenary property has been allowed to devolve by survivorship on the surviving members of the coparceners and not by way of succession under the Act. but an exception has been carved out of this rule of law by the proviso that if the deceased dies. leaving behind him a surviving female relative specified in class I of the Schedule (the other part is not material) which would include a widow and the daughters. then the rule of law is that the interest of the deceased in the Mitakashara coparcenary shall devolve by succession (testamentary or intestate) under the provisions of the Act and not by survivorship. To work out the rights, an Explanationn has been added which provides for a notional partition in the family at the time of the death of the deceased and then the share which would. upon a partition. have been allotted to the deceased just before his death. would constitute the property which would be inherited by the heirs in accordance with the provisions of Section 8 of the Act amongst the heirs specified in First Schedule.
7. To apply this rule of law to the facts of the case before us: Had a partition taken place immediately before the death of the deceased Bhagwan Dass in October. 1957. the property would have been shared equally by him his wife and his five sons. In this way. the share of the deceased upon such notional partition would be one-seventh of the whole estate. This one-seventh portion will be deemed the property of the deceased which would be inherited by the heirs in accordance with Section 8 of the Act. This one-seventh share would be inherited by his widow and all sons and daughters in equal shares as they are co sharers in Class I of the Schedule. This would make the share of defendants Nos. 6 and 7 to be one-eighth of one-seventh share each. in other words 1/56.
In the appeal before us. there has been no appearance on behalf of defendants Nos. 6 and 7. but the counsel for defendant No. 5 has raised an objection that the daughters and the widow are not members of the coparcenary, although they are members of the joint Hindu family and as such the property in dispute is not coparcenary property amongst the parties and Section 6 does not apply to the joint family property apart from the coparcenary property. There is no doubt that in pure Hindu Law. according to Mitakshara School. the female heirs are not members of the coparcenary which is a much narrower body confined to persons who acquire an interest in the family property by birth and the female heirs as mentioned in paragraphs 212. 213 and 217 of Mulla's Hindu law are members of the joint Hindu family. But as further clarified in paragraph 220 of the same treatise of Hindu law the term joint family property is synonymous with copercenary property and it would thereforee, not make any difference in the construction and effect of Section 6 of the Act that the widow and daughters of the deceased are members of the joint Hindu family and not of the coparcenary.
8. The property of the deceased would, thereforee. be coparcenary property and ordinarily it would have been inherited by the members by survivorship but the Act has made an inroad on this rule of ancient Hindu law and created a class of statutory heirs. As observed by G. K. Misra. J. in Madhusudhan Rav v. Ananta Charan Behera : AIR1963Ori183 . the Act purports to give better rights to widows and before the passing of the Act a widow was not a coparcener and until she exercised her right to partition. the theory of survivorship was kept in abeyance. but even after the passing of the Act. she does not become a member of the coparcenary and does not acquire any interest by birth. but still she continues to a statutory heir without being a coparcener and she possesses a right of alienation. The High Court of Mysore in a Full Bench decision reported as Sundara Adapa v. Girija Air 1962 Mys 72 observed in paragraph 10 that the interest of a deceased coparcener is quantified and provision is made for its intestate succession under Section 6 and the same interest is made capable of testamentary disposition.
9. The High Court of Bombay in a Division Bench authority Shiramab v. Kalgonda Bhimgonda. : AIR1964Bom263 was faced with a similar problem as arises before us. In that case. the deceased died leaving behind him a widow a son and three daughters by a pre-deceased wife. the question arose as to what would be the share of each of the parties under Section 6 of the Act. The Court observed that the interest of a Hindu Mitakshara coparcener available for partition under the section would be such share in the property as would be allotted to him if a partition of the property had taken place immediately before his death among the coparceners according to the rules of Hindu law. the Court answered the problem raised in that case that the property was allottable in three shares before the death of the deceased. namely. between him. his wife and his son and. thereforee. one-third share of the deceased would be available for equal distribution amongst all the contestants. namely. the daughters will get 1/5 the share each. This was the answer of the Court. but in the peculiar circumstances of the case. the Court affirmed the decree of the District Judge awarding to the daughters 1/10th share since the same had been admitted before the trial Court. The question again came up for hearing before the High court of Bombay in another contest and a Single Judge of that Court in Govindram Mihamal v. Chetumal Yillardas. : AIR1970Bom251 . observed that the partition contemplated by Explanationn I to Section 6 was (as held by the High Court of Kerala in Venkiteswara Pai v. Luis. : AIR1964Ker125 ) a notional partition and not actual partition and that it was not an act inter vivos by the deceased but it was merely a concept devolved by the Legislature to ascertain the shares of the deceased or the quantum of the property is liable to testamentary or intestate succession the Court further observed that the Act introduces new class of heirs and the devolution of interest of the deceased had. for purposes of separate succession under the Act. been ascertained and. thereforee, when the death of a coparcener took place in a family falling under proviso to Section 6 the female heirs like daughters inherit interest in the joint family property by succession under the Act.
10. On a consideration of the provisions of the Act and the authorities, we are of the view that the share of the deceased on partition before his death would have come to one-seventh as his wife as mentioned a paragraph 315 of Mulla's Hindu Law. would have been entitled to obtain a share along with her five sons and now the daughters would. thereforee. get one-eighth share out of one-seventh that is 1/56th share each. The issue is decided accordingly.
11. In the cross-appeal which has been treated as cross-objection. defendant No. 5 has challenged the finding on issue No. 1 with regard to his liability to render accounts. This issue arises out of paragraph 15-A of the plaint where it has been alleged that defendant No. 5 who had been working with his father during his lifetime and after his death. assumed exclusive control of the business and represented himself as sole proprietor of the family business and he recovered and realised outstandings of the business and fraudulently and improperly converted the property of the family to his own use and misappropriated them. In reply. defendant No. 5 denied the allegations and urged that he had never been the Karta but had been an employee of the deceased. In para. 11 of his written statement, he expressly stated that he had been working as an employee of the deceased since 1950 and of his mother (defendant No. 1 ) after the death of his father. In paragraph 13. he re-asserted the same position. The finding of the Court below is that defendant No. 5 had been working as Manager of the business and not as an alleged employee. which assertion of the defendant has been disbelieved. The Court below has also found that he had been getting substantial amounts from the business of the press and had been depositing them in his account and he had not offered any Explanationn for the said deposits in his account and he had not offered any Explanationn for the said deposits in his account and the Court came to the conclusion that defendant No. 5 had been converting the income of the press. which was joint family property. to his personal use.
12. The law on the subject is stated in paragraph 238 of Mulla's Hindu law where it is stated that a manager of a joint Hindu family is liable to render account upon partition for the assets which he had received and also for the expenses which have in fact been incurred and the liability to render account would arise on proof of misappropriation or fraudulent and improper conversion. The case that defendant No. 5 was an employee of the family in the business set up in the Court below has not been pressed before us and even otherwise we agree with the lower Court that on the evidence on record. the allegation of defendant No. 5 is untrue.
13. With regard to conversion and misappropriation of funds, there is ample evidence on the record. P. W. 9. the plaintiff examined as a witness, has stated that for three or four years prior to the death of his father which occurred on 25th October, 1957. Om Parkash defendant No. 5. had been acting as Karta of the family and he is managing the same after his death and during this period, he made recoveries and has disposed of the machinery of the press as well as motor cycles and has misappropriated six or 7 thousand rupees. Defendant No. 5, examined as his own witness admitted that his mother had received a sum of Rs. 4,000/- or Rs. 5,000/- from the business which amount had been received by him as manager under the authority of his mother and this amount was utilised by him in payment of debts. In cross examination. he admitted that a sum of Rs. 1,400/- by a Bank draft had been given to him by his deceased father on account of salary for four or five months. The salary that he had stated to get was Rs. 150/- per month and so even on that basis. assuming it to be correct, some excess amount had been appropriated by him. Faced with this circumstance. defendant No. 5 explained that his father had asked him to refund the remaining amount which he paid to him on the following day or the day after the following day which is not reliable.
He also admitted a deposit of a sum of Rs. 1, 000/- in his account on 16th July, 1957 and explained that this amount had been given to him by his father for being deposited in his bank account. The Explanationn that the deceased father had given extra amounts to defendant No. 5 for deposit is not at all believable. The statement of account of the joint family firm (Exhibit P. 9) contains entries of payments made to Om Parkash. defendant No. 5. To take some instances, Rs. 200/- by cheque under dated 30th June. 1935 Rs. 150/- by cheque under date 8th December. 1955 Rs. 265/- by cheque under date 19th October. 1955. Rs. 135/- by cheque on 10th December, 1955, Rs. 275/- by cheque under dated 30th September. 1956. Rs. 200/- on 11th April. 1957. Rs. 200/- on 12th April. 1957 and Rs. 64/- by cheque under date 30th May, 1957. These are some of the instances of the amounts withdrawn by defendant No. 5 from the family business without any valid reason. There are some corresponding entries in the personal account of defendant No. 5 (Exhibit P.W. 3/1) which would indicate that the amounts drawn by him from the family firm had been credited to his personal account. They are, to again take illustrations. Rs. 200/- deposited under date 11th April. 1957. Rs. 64/- under date 30th May. 1957. Rs. 1399/- by a Bank draft out of Rs. 1400/- on 13th July. 1957. and Rs. 1, 000/- by cheque on 16th July. 1957 and Rs. 600/- by cheque on 10th August, 1957. These entries would show that there was no valid justification for defendant No. 5 to withdraw the amounts from the family firm and credit the same in his personal account. There is no doubt that defendant No. 5 has to render accounts for the amounts received by him. The finding of the Court below is, thereforee, not assailable.
14. There is, however, one point in the decree which requires clarification. The Court below has ordered rendition of account by defendant No. 5 for a period prior to the death of Bhagwan Dass as well as after the death, but it has not specified the date up to which the account would be taken. Consequently we feel that accounts only for a period of three years prior too the institution of the suit would be taken. The suit was instituted on 30th May. 1958 and so rendition of accounts by defendant No. 5 would be for the period from 30th May, 1955 onwards and not prior to the same. The cross-objections are. thereforee, allowed only to this extent. So far as the appeal is concerned. it is varied to the extent that the share of the daughters of the deceased. namely. defendants Nos. 6 and 7 vill, instead of 1/8th in the whole joint family property. be 1/56th each.
15. It may be mentioned that in the grounds of appeal. the plaintiff-appellant had in paragraph 2 urged the shares of the daughters defendants Nos. 6 and 7 to be 1/48th. that is to say one eighth of the one-sixth. but since the calculation of shares according to the provisions of law is a question of law. we are of the view that the correct relief can be granted to the appellant and so we have ordered accordingly. So far as the share of the mother. defendant No. 1, is concerned, under the provisions of the Hindu Succession Act. (as well as the Hindu Law) she is entitled to obtain a share equal to her son and. thereforee the share of the plaintiff and defendants Nos. 1 to 5 would be 9/56th each. The Court below has left issue No. 5 with regard to claim of the mother. defendant No. 1. for maintenance open and the same has rightly not been agitated before us. We, thereforee. do not express any opinion on the same. The appeal and the cross-objection which was treated as a cross objection stand disposed of. In view of the partial success of the parties. they will bear their respective costs in this Courts.
16. Appeal partly allowed.