@JUDGMENTTAG-ORDER
Harbans Lal, J.@mdashThis regular second appeal is directed against the judgment and decree of the learned District Judge, Ferozepur, dated May 13, 1975, by which the appeal of Brij Lal, defendant, was dismissed and the judgment of trial Court decreeing the suit of the plaintiffs respondents was affirmed.
2. The facts, in brief, are that Brij Lal, appellant defendant No. 1 (hereinafter called the appellant), obtained a money decree against Jagan Nath defendant No. 2 (now respondent No. 4) on May 20, 1954 in execution of which the immovable property in dispute was attached. In the first instance, this order of attachment was challenged by two separate suits under Order 21, Rule 63, CPC (hereinafter called the Code), by Des Raj, defendant No 3 and Mst. Malan Devi, defendant No. 4 (now respondent Nos. 5 and 6, respectively). Their suit was decreed; they were declared owners of 1/3rd and 1/6th share, respectively, in the attached property and the order of attachment qua their share was set aside. Subsequently, the present plaintiffs (now respondents Nos. 1, 2 and 3) instituted a suit for declaration contending that they were owners of half the share in the attached property which had devolved upon them from their father Kheta Ram and that after his death on July 18, 1957, Jagan Nath, respondent No. 4, had no interest or title in the said property and, thus the same was not liable to attachment or sale in execution of the decree passed against him. These pleas of the plaintiffs were traversed by Brij Lal, appellant. On the pleadings of the parties, the following issues were framed:-
(1) Whether toe plaintiff is the owner and in possession of the suit property ?
(2) Relief.
The suit of the plaintiffs was decreed by the trial Sub-Judge. However on appeal by Brij Lal appellant, the learned Additional District Judge, Ferozepur remanded the case under Order 41, Rule 23-A, of the Code and instead of the above mentioned issue, the following issue was framed:-
Whether the plaintiffs are owners of the suit properly to the extent of one half share and that the same is not liable to attachment and sale in execution of the decree held by defendant No. 1 against defendant No. 2
3. After the remand, the trial Sub-Judge held that Kheta Ram died intestate on July 18, 1957; that his estate devolved upon his widow, two sons and two daughters, in which the plaintiffs who are sons and daughters of Kheta Ram, inherited one half share, it was also held that Jagan Nath, defendant-respondent, son of Daulat Ram, one of the sons of Kheta Ram, did not get any share. However, a finding was also given that even is the property in dispute formed part of Joint Hindu family property and Jagan Nath as a member of the coparcenary with his father, got undefined share in the said property, his share was not attachable u/s 60(1)(m) of the Code. Thus the suit of the plaintiffs-respondent was decreed The learned District Judge while dismissing the appeal and affirming the order of the trial Court did not agree with the finding of the trial Court to a limited extent inasmuch as it was held that if the property was held to be Joint Hindu family property and Jagan Nath was held to have a share in it as a member of the coparcenaries with his father, Daulat Ram, his share will be attachable and saleable u/s 60(1)(m) of the Code. However, the learned District Judge came to the conclusion that Jagan Math had got no interest in present in the estate of Daulat Ram, inherited by the latter from his father Kheta Ram and that the relevant rule of Mitakshara Law had been abrogated by section 4 of the Hindu Succession Act 1956 (hereinafter called the Act) as it was contrary to section 6 and 8 of the Act. Thus, as a result, the appeal was dismissed in into.
4. It has been contended by the Learned Counsel for the appellant that it was found by the learned District Judge that the property inherited by Daulat Ram from his father Kheta Ram, was ancestral in his hands qua his son Jagan Nath, defendant No. 2 and relying on para 223 in Mulla''s Hindu Law, it was held as under:
There is, accordingly, no doubt, that according to Mitakshara Law, Jagan Nath got an interest and title in the estate inherited by Daulat Ram from Kheta Ram as good as that of a coparcener.
According to the Learned Counsel, in view of this finding by the learned District Judge, Jagan Nath respondent, must have a share in ''he estate inherited by his father Daulat Ram from Kheta Ram as a member of the coparcenaries and that the finding of the learned District Judge to the effect that Jagan Nath had no interest in presented in the estate of Daulat Ram and that the relevant rule of Hindu Law of Mitakshara had been abrogated by section 4 of the Act, is based on wrong interpretation. In order to appreciate the contention, sections 4, 6 and 8 of the Act have to be lead together which are reproduced below:-
4. Save as otherwise expressly provided in this Act:-
(a) any text, rule of or interpretation of Hindu Law or any custom or usage as part 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;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
5. x x x
6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenaries property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenaries 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 claim 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.
7. x x x x
8. 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, it there is no agnate, then upon the cognates of the deceased.
5. The law is well established that under the Mitakshara School of Hindu law by which the parties are admittedly governed, all property inherited by a male Hindu from his father, father''s father and fathers'' father''s father is ancestral property. According to para 223 of Mulla''s Hindu Law the essential feature of ancestral property under Mitakshara law is that toe sons, grandsons and great grandsons of the person who inherits it, acquire an interest in it by birth. So to say, such property is a coparcenary property of the members of the coparcenary, with his father, son and grandson having a share in the said property. Admittedly the property in dispute was inherited by Dault Ram, the father of Jagan Nith respondent, from his father Kheta Ram after his death which took place on July 18, 195/. Thus, clearly, the property inherited by Dault Ram from his father will be ancestral property in his hands and Jagan Nath being a son will be clearly entitled to share in this properly as member of the coparcenary with his father The only question now for determination is whether this spliced principle of Hindu law was abrogated by Section 4 of the Act. There is no doubt that under sub-sections (a) and (b) of section 4 of the Act, any rule of Hindu law which is inconsistent with the provisions of the Act or for which an express provision has been made in this Act will stand abrogated. According to section 6 of the Act, after the death of a male Hindu his interest in a Mitakshara coparcenary property will, devolve by survivorship upon the surviving members of the coparcenary. This section does not apply to the facts of the present case as admittedly the property in dispute had been purchased by the last owner, Kheta Ram, from one Gokal Chand. According to Section 8 of the Act, the property of a male Hindu dying intestate shall devolve upon heirs as mentioned in class I and II of the Schedule annexed to the Act. According to class I of this Schedule, the widow, sons and daughters (including the plaintiffs) of Kheta Ram were heirs and the property was rightly indented by them. But after the succession had taken place, the question is what will be the nature of the property in the hands, of the sons and daughters. So far as the daughters (plaintiffs) are concerned, the, estate inherited by them will be their exclusive property and the question of the same being coparcenary property does notaries, So far as the share inherited by Daulat Ram from his father Kheta Ram is concerned, it must be treated as ancestral property and as such according to the established principle of Mitakshara law it must partake the character of coparcenary or joint Hindu family property. Sections 6 and 8 of the Act only postulate as to how the property left by a male Hindu will be inherited by the surviving heirs. It does not in any manner say as to how this property will be treated in the hands of the heirs. The Act being silent in this matter, section 4 of the Act cannot be interpreted to have abrogated the established principles of Mitakshara law. The learned District Judge held that section 4 of this Act had abrogated Mitakshara law in such matters, on the ground that under the provisions of the Act, sons'' son of the deceased owners was not an heir along with the son u/s 8 of the Act. To my mind, this argument is fallacious. Section 8 of the Act which deals with the succession to the property of a Hindu male dying intestate has modified the Mitakshara law to this extent only that after his death the property shall devolve not only on the son as a member of the coparcenary or otherwise but also on the widow and daughters. But for this provision, daughters and widow will not be entitled to any share under the Mitakshara law. It is clear from a perusal of section 4 of the Act that the entire Mitakshara law has not been abrogated by the Act but only to the extent the same is inconsistent with the provisions of the Act. If there is a conflict between Mitakshara law and the Act, the provisions of the Act will prevail. Where any filled has bean left uncovered by the provisions of the Act, the Mitakshara law will still continue to hold the filed. In my considered opinion, the property inherited by Daulat Ram from his father Kheta Ram was ancestral property in his hands and as such Jagan Nath is bound to have a share in the property as a coparcener. If any other interpretation is adopted, the result will be that as soon as a male Hindu dies, the property left by him and inherited by his son will also become self acquired property and the entire Mitakshara law will have to be held to have come to an end, I do not think this was the intention of section 4 of the Act. In this view of the matter I reverse the finding of the learned District Judge and hold that Jagan Nath respondent, as a member of the coparcenary will have a share in the property inherited by his father Daulat Ram from Kheta Ram. It is further held that the said interest of Jagan Nath being an interest in presenti in the estate of Daulat Ram was liable to attachment u/s 60(1)(m) of the Code and the order of attachment so far as the share of Jagan Nath plaintiff-respondent is concerned, was valid. So far as the share of the other two plaintiffs who inherited the property in dispute as daughters of Kheta Ram, Is concerned, Jagan Nath respondent cannot claim any share in it nor was the same challenged by the appellants and qua their share the order of attachment was clearly illegal and cannot be sustained.
6. The Learned Counsel also challenged the finding of the learned District Judge regarding Court fee. According to him valuation had been correctly fixed under Article (sic)7(iii)of Schedule II of the Court Fees and Suits Valuation Act and as such fixed Court fee of Rs. 19.50 N.P. was correctly paid. The learned District Judge has held that the plaintiffs not only claimed a declaration of their ownership, in the suit land but also a further declaration by way of consequential relief that the property in dispute was not liable to attachment and sale in execution of the decree and that the plaint, therefore, was to be valued u/s 7(iv)(c) of the Court Fees and Suits Valuation Act and the Court fee had to be paid according to the amount at which the relief sought was valued in the plaint. There is nothing wrong with this finding and I agree with the same.
7. It may, here, be clarified that all the three plaintiffs jointly are entitled to one-half share in the suit property and thus share of Daulat Ram will be only one-sixth and in this one-sixth share Jagan Nath, respondent, will be entitled to one-half being a member of the joint Hindu family.
8. For the aforesaid reasons, I accept the appeal set aside the judgment and decree of the Courts below and dismiss the suit so far as the share of Jagan Nath, respondent, in the suit property, is concerned. So far as the share of other two plaintiffs, namely Ishar Devi and Shanti Devi, in the suit property, is concerned, the judgment and decree of the Court below is upheld and to that extent, the appeal is dismissed.
