LAW FOR ALL

whether after the death of Pullam Raju, his share of property is liable for partition or will be succeeded by his father Venkata Raju by survivorship. in Ganta Appalanaidu Vs. Ganta Narayanamma and others[1], it will be appropriate to extract paragraph ‘5’ at page 260, which is as follows: Explanation 2 to Section 6 also does not help the defendants in the present case. According to the proviso to Section 6 the interest of a male Hindu in coparcenary property shall not devolve by survivorship if there is a female relative specified in class ‘1’ of the Schedule or a male relative specified in that class who claims through such female relative. That is to say, even though the property is coparcenary property which should devolve on the surviving coparceners in accordance with the main provision of Section 6, it shall not so devolve if there is a female relative specified in class (1) etc. In such an event, the property shall devolve by testamentary or intestate succession as the case may be. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. On A’s death his half share in the coparcenary property shall not go by survivorship to C since there is a female relative specified in Class I. It shall devolve by intestate succession. The two sons and the widow will be heirs but Explanation 2 excludes the divided son B. The result therefore is that the half share of A in the coparcenary property shall devolve by intestate succession on C, his undivided son and D, his widow. That is all the effect of the explanation. Where property which ought to devolve by survivorship on an undivided coparcener under the main provision of Section 6 devolves on the heirs as if on intestacy because of the existence of the female relative etc., mentioned in the proviso to Section 6, the explanation provides that the divided coparcener, nonetheless, shall not claim as an heir. The explanation does not however prevent a divided son from claiming succession on intestacy if there is no person on whom the property can devolve by survivorship in accordance with the provisions of Section 6. Section 8 applies to every case of a Hindu dying intestate leaving no one on whom the property can devolve by survivorship”. whether after the death of Pullam Raju, his share of property is liable for partition or will be succeeded by his father Venkata Raju by survivorship. 10. There is no serious dispute about the fact that Venkata Raju and Pullam Raju continued to be members of the family as can be seen from the allegations in the plaint. In this connection, it is useful to refer to Section 6 of the Act prior to amendment. “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 entitled to claim partition or not. Explanation 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”. 11. Therefore, when Pullam Raju did not leave behind any female heir or legal heir through his explanation will not operate and by virtue of Section 6 of the Act by virtue of survivorship, the property will devolve upon Venkata Raju. Consequently, the father of the plaintiff or the plaintiff cannot claim any rights in the property. Further, the question is as to whether after the death of Venkata Raju since he has got wife as a class one heir and also the other legal heirs through her children since explanation No.1 lays down that the succession can only be by applying the Section 8 of the Act. The next question is as to whether the plaintiff is not entitled for any share in the property of Venkata Raju, who died intestate. The Court below has taken into consideration explanation ‘2’ of Section 6 of the Act and as the father of the plaintiff is already divided, the benefit of explanation ‘1’ will not inure to the plaintiff and consequently, there cannot be any share for the plaintiff.