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Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenrary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein".

8. Prior to enactment of this Act a coparcener having undivided interest in the coparcenary property had no right to make testamentary disposition in respect thereof but by Section 30 of the Act such right was, for the first time, conferred upon a cfoparcener even though there was no partition prior to the date of his death. The main part of Section 6 of the Act normally recognises an reiterates the rule of survivorship in respect of devolution of interest by survivorship upon the death of a coparcener in favour of surviving members of the coparcenary. Even under the proviso when there are no female or other heirs of the class specified therein, the rule as to survivorship has to prevail but if the deceased coparcener dies leaving 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 such deceased coparcener in the mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under the Act and not by survivorship. Shridhar left him surviving his adoptive mother Laxmibai and his widow Shantabai. Thus in view of the proviso his interest in the coparcenary property is nt k to devolve in accordance it the rule of survivorship but his interest in that coparcenary property is to devolve by intestate succession as he died without leaving a Will. It was urged by Mr. Bobde that it is implicit in the very language of the proviso to Section 6 that when devolution is by testamentary or intestate succession aqua that deceased coparcener there is severance of status in the coparcenary property. On the other hand, the argument of Mr. palshikar is that this is only a departure qua the rule of devolution of interest. Ordinarily upon the death of a coparcener his interest in the joint family property will go by survivorship to the remaining coparceners, while in the persent case as there was a female heir, the rule of survivorship was not attracted but the property was to devolve by test mentally or intestate succession. Such is the rule of succession but it has no effect of effecting severance in the joint family status.

20. The provisions of Section 6 also came to be considered by a Single Judge of this Court in Govindram Mithamal Sindhi v. Chetumal Villardas, . It may be stated at the outset that while the question was considered by the single Judge his attention was not drawn either to the decision of the Division Bench in Shirambai's case. The scheme of Section 6 is considered by the learned Judge and he has taken the view that Section 6 is introduced in the Hindu Succession Act for the purpose of effecting a change in the normal mode in which the joint family property used to pass from one person to another in a joint Hindu Family. In a joint Hindu family possessing joint family property the male members from a coparcenary. When a coparcener dies, his right, title and interest in the joint family property the male members form a coparcenary. When a coparcener dies, his right, title and interest in the joint family property go by survivorship to the other coparceners This normal mode in which the property passed form person to person in a joint Hindu family was sought to be challenged by introducing a certain type of succession in the case of the interest of the coparcenes in the joint Hindu property. Section 6 in the first instances speaks of Mitakshara coparcenary possessing property. The opening substantive part of Section 6 provides that 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 member of the coparcenary and not in accordance with this Act. The normal devolution by survivorship, which was a distinguishing feature of the Mitakshara Coparcenary, is sought to be maintained even by the Hindu Succession Act. however, there is a proviso added to this section k which carves out a case when the family consists of certain types of members. Then of learned Judge considered thelanguage of the proviso read with Explanation 1 thereto and further observed that if the deceased had left behind him any female relative specified in that class in Class I of the Schedule or a male relative specified who claims through such female relative, the interest of the deceased in the Mitakshara coparcednary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. This is provided by the proviso. How the interest of the deceased in the Mitakshara coparcenary property shall be determined for the purpose of devolution, whether k testamentary or intestate contemplated by the proviso, is provided in Explanation 1. While discussing this case a further question arose before the learned Judge whether having regard to the provisions of Section 6 a full partition of the family property takes place or it is a piecemeal partition with respect to the interest of the deceased and what is the effect in either case on the entire family property or the interest an drights and liabilities inter se between the other coparceners in the family. The question, however, was not decided by the learned Judge and the learned Judge has merely chosen to confine his decision to the facts of the case which arose for consideration in that litigation and did not express any opinion as regards generalisations relating to the theory of partition. In this case the real question that arose for decision was whether the heirs who were entitled to inherit the joint family property by reason of the provision of the proviso were necessary parties to the suit upon the death of a coparcener whose interest in the property devolved upon them by testamentary or intestate succession and the learned Judge took the view that upon the death the interest of such a deceased coparcener ceased to have the character of joint family property and as such unless the heirs who inherited the property were brought on record their interest in the property was not represented and the frame of the sit was defective, if such heirs were necessary parties to the suit and the suit was liable to be dismissed if they were not brought on record.

23. Our attention has been invited to a large number of cases where there are some observations which go to indicate some what 6 contrary view. It will be useful to refer to these cases and consider whether any of the said decision is likely to be of any assistance in deciding likely to be of any assistance in deciding the narrow issue to which we propose to confine our decision. In kanahaya All v. Smt. jumma Devi. , a question arising under Section 6 of the Act came up for discussion. it may be stated at the outset that the decision of the Division bench of this Court in Rangubai's case was not cited before the Court. Upon analysis of the provisions of Section 6 the Division bench of Delhi High Court took the view 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 Mitakshara coparcenary shall devolve by succession (testamentary or interested) under the provisions of the Act and not by survivorship. To work out the right, an explanation 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. This was a case where there were more than tow copartners in the family and one of the coparceners died leaving heirs specified in the proviso. There are no direct observations on the question whether upon separation of the share of the deceased coparcener, in order that it may devolve on his heirs by testamentary or intestate succession the remaining coparceners remain united or become separate. Only in para 10 of the judgment the quantum of shares are merely stated on the footing that a female who upon separation of the share may get a share equal to that of a son has not been allotted that share.

"A karta of joint family property is quite an understandable concept. But karta for a divided property, of property partitioned, notionally though, appears to be incomprehensible. So, old karta theory cannot help matters forward for the petitioner before me and Narayan Prasad Ruja as karta cannot represent his deceased son's mother and necessarily his wife upon whom devolves the share of the property after partition. The very nexus of the joint family property is gone". (underlining is ours.) Though there are no distinct observations on the question whether the remaining coparceners continued to be separate or joint, a prima facie observation is made that the nexus of the joint family property is gone. However, on the facts, as the mother of the deceased minor was necessary party continuance of the suit was regarded as suffering from infirmity. In karuppa Gounder v. Palaniammal. , the Division bench of madras High Court considered the effect of the proviso and Explanation 1 to Section 6. According to the Division bench, the intendement of this provision is very clear. It is that persons entitled to succeed to the interest of a deceased coparcener under the Act shall not be subject to the hazard of the fluctuating fortunes of the family. The Act itself determines what the share of the heir shall be and it specifies it clearly to be that share on partition, if partition had been effected immediately before the coparcener's death. Though factually no partition may have taken place, the quantum of the share of the female heir is effectively determined by this provision and n curtailment of that share is permissible on footing of the existence of the joint family or of the valid exercise of the power of the father to make a gift. here also the question whether upon separation of the share of the deceased in order that it may devolve by testamentary or intestate succession under the proviso to Section 6 rendered the rest of the members of the coparcenary united or separate was not considered.