AIR 2014 (NOC) 491 (BOM.) (AURANGABAD BENCH) ::2014 (3) ABR 201

Bombay High Court ( Aurangabad Bench )

Hon'ble Judge(s): A. B. Chaudhari , J

(A) Hindu Law — Joint family property — Sale of — Legal necessity — After death of Karta his son had to maintain minor sister and perform her marriage — Son executing sale deed to perform marriage of his sister — There was nobody in family to look after and maintain them — Sale by son would be for legal necessity (Para 6)

(B) Hindu Law — Joint family — Karta of family — Who can be — Death of father — He had eldest married daughter, major son and youngest daughter — When male member is available, female in such circumstances would not be eligible to become a karta of family — After death of father his major son and not eldest married daughter would be eligible to become a karta (Para 8)

(C) Hindu Succession Act ( 30 of 1956) S. 6 — Coparcenery property — Devolution of interest — Partition contemplated by Explanation 1 to S 6 — Is notional partition — Explanation 1 is a device to find out answer to question, had there been actual partition immediately before death of coparcener what share he would have got — It is not actual partition {" Upon perusal of provisions of S. 6 of the Act, it is clear that on the death of coparcener if he survived by a male or female relative as is specified in the proviso to Section 6 by operation of Explanation 1 to that proviso, a notional partition is deemed to have been effected immediately before the death of such coparcener by which the share of the deceased is separated. The share of the deceased so separated, thus, devolves by virtue of the proviso on the personal heirs of the deceased instead of vesting in any other coparcener by survivorship. Thus, the object of providing for notional partition is to give benefit to the personal relatives of the deceased coparcener, whether male or female, who dies rather than to allow such benefit by survivorship to others. The second aspect appears to be that the said concept of notional partition has been 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 the Hindu Succession Act. Thus, it is only....