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5. On the facts which we have hereinafter set out, it is clear that in 1956, there was a partial partition between the members of the Hindu undivided family as it existed so far as this particular asset of the joint family, namely, the joint family business, was concerned. As a result of that partition, with effect from November 10, 1956, Gautamkumar ceased to have any interest in the joint family business and that joint family business thereafter belonged to the three remaining members of the joint family, namely, Shantikumar and Bhadrakumar, who were the two coparceners and Kalavati. From November 10, 1956, till the death of Shantikumar in 1961, the joint family business which was being run in the name of Bipinchandra Gautamkumar was being run by the joint and undivided Hindu family consisting of Shantikumar, Kalavati and Bhadrakumar. On the death of Shantikumar on September 1, 1961, it is obvious that the only members of the family who had an interest in the joint family business were Kalavati and Bhadrakumar. Under section 30 of the Hindu Succession Act, 1956, it is open to and Hindu to dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, of any other law for the time being in force and applicable to Hindus. The Explanation to section 30 mentions that the interest of a male Hindu in Mitakshara coparcenary property shall, notwithstanding anything contained in the Hindu Succession Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section. Thus, with the coming into force of the Hindu Succession Act, 1956, it became possible for any Hindu to make a will to dispose of his interest in Mitakshara coparcenary property but such testamentary succession is governed by section 6 of the Act. Under section 6 of the same Act, when a male Hindu dies after the commencement of the Succession Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Hindu Succession Act. But under the proviso to section 6, if the deceased male Hindu leaves 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 the Hindu Succession Act and not by survivorship. The Schedule to the Hindu Succession Act mentions heirs in two classes, namely, Class I and Class II, and a widow is one of the female relatives mentioned in Class I. Therefore, since Shantikumar died after the coming into force of the Hindu Succession Act, by virtue of the proviso to section 6 of the Act, his interest in the coparcenary property devolved by testamentary succession since he had left his will executed by him of February 22, 1960. Explanation 1 to section 6 provides that for the purposes of section 6 the interest of a Hindu Mitakshara coparcenery 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. Under these circumstances a notional partition certainly took place and, as a result of that notional partition, on the facts of this case, on Shantikumar's death, so far as the joint family business of Bipinchandra Gautamkumar was concerned, Shantikumar had one-third share in the business (the three persons in the Hindu undivided family being Shantikumar himself, Bhadrakumar and Kalavati, each one of them having one-third share in this joint family business). Since each of the three legatees under the will of Shantikumar had an equal share under the will, Bhadrakumar, Gautamkumar and Kalavati each became entitled to one-ninth share in the joint family business of Bipinchandra Gautamkumar. Under section 19(b) of the Hindu Succession Act, if two or more heirs succeed together to the property of an intestate, they shall take the property as tenants-in-common and not as joint-tenants. The same principle would also apply to the heirs taking together under the will so far as the proviso to section 6 is concerned and, Gautamkumar would each get one-ninth share. They would hold as tenants-in-common.

6. The effect of the provisions of section 6 has been considered by a Division Bench of this High Court in Commissioner of Wealth-tax v. Kantilal Manilal. In that case the facts were that one K, his wife P, their unmarried daughter, R, their son, D, and D's wife, U, were all members of a Mitakshara Hindu undivided family owning several properties. The son, D, had some separate properties of his own. D died on August 15, 1958. U filed a suit for obtaining her share in the properties left by D including his interest in the coparcenary property under section 6 of the Hindu Succession Act. This suit was settled and an amount of Rs. 10,70,000 was paid to U in full settlement of her claim. In the wealth-tax assessment of the Hindu undivided family for the assessment years 1960-61, 1961-62 and 1962-63, the Appellate Tribunal held that on the death of D, his one-third share in the joint family properties devolved on U and P, that is, D's mother, and thus ceased to belong to the assessee-family and the assessee was thereafter entitled only to the remaining two-thirds share in the coparcenary joint family properties. The matter having been brought to the High Court, the High Court held that the Tribunal was right in taking the view that only two-thirds share in the jewellery belonging to the joint family was liable to be taken into account in computing the net wealth of the Hindu undivided family. The Division Bench deciding the matter held that under section 6 of the Hindu Succession Act, D's interest in the family property devolved in his mother, P, and his wife, U, and that share went out of the family. The heirs of the deceased, D, and the remaining members of the coparcenary held the properties as tenants-in-common. At page 294 of the report, Bhagwati C.J., as he then was, delivering the judgment of the court observed :

"It would, therefore, appear to be obvious that when the proviso (proviso to section 6) says that the interest of a deceased coparcener in coparcenary property shall devolve by intestate succession, what is meant is that the share in the coparcenary property which would heave been allotted to him on partition, if a partition had taken place immediately before his death shall devolve on the heirs. The concept of a notional partition is brought in for the purpose of defining the nature and quality of the interest which devolves by succession. It is the share which would have been allotted to the deceased coparcener on partition if a partition had taken place at that time. The quantum of share is fixed : the proportion in which the share is to be counted are also crystallized. This specific share in definite ascertained properties, subject of course, to payment of proportionate share of the debts and liabilities, devolves on the heirs by intestate succession. But, that does not affect the continuance of the Hindu undivided family. The fiction of partition is introduced for the limited purposes of defining the nature and quality of the interest which devolves by succession and it cannot be extended beyond its legitimate field. The Hindu undivided family, therefore, continues with the surviving coparceners as it would have done under ordinary Hindu law, but the share of the deceased coparcener in the properties of the Hindu undivided family having devolved on the heirs by intestate succession, that share goes out of the Hindu undivided family and the Hindu undivided family continues to be the owner of only the remaining share. The result is that in the properties which belonged to the Hindu undivided family at the date of death of the coparcener, the heirs have a defined share, namely, the share which the deceased coparcener whom they have succeeded would he had if a partition had taken place immediately before his death and the remaining share belongs to the Hindu undivided family. Now, once this position is reached, it is clear that the Hindu undivided family and the heirs hold these properties as tenants-in-common. Where there are two or more co-owners of property, the co-ownership may assume one of several forms : it may be coparcenary or joint tenancy or tenancy-in-common. These are the main three forms of co-ownership which are commonly in use in legal relationship in this country. Here coparcenary is out of question because the heirs in their capacity s such would indubitably not be coparceners with the other members of the Hindu undivided family. The only question, therefore, can be whether the Hindu undivided family and the heirs hold as joint tenants or as tenants-in-common. Now the two main features of a joint tenancy are the right of survivorship and the four unities, namely, unities of possession, interest, title and time. Both these features are absent in the case we are considering. There is neither right of survivorship nor unity of interest. The interest of neither the Hindu undivided family nor the heirs extends to the whole of the properties and there is no community of interest between them. What the Hindu undivided family and the heirs have are only defined shares in the properties which belonged to the Hindu undivided family at the date of death of the coparcener. There is common enjoyment of the properties between the Hindu undivided family and the heirs and the properties not having been divided amongst them in accordance with their respective shares neither of them is able to enjoy his share of the properties in severalty. The properties are thus clearly held by the Hindu undivided family and the heirs as tenants-in-common."