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5. That Nagi Reddy and his sons lived joint does not appear to be a disputed fact. But it does not follow therefore that the asset in question belonged to the joint family at the time when it was advanced by Nagi Reddy. No such presumption can be raised in law. Nor is that proved in point of fact on the material on record. Even so, perhaps, non-joiner of the other heirs would not have assumed so much importance had the old Mitaksshara Law held the filed and Nagi Reddy who died intestate had left only hiss sons as his heirs. But the position now is different Nagi Reddy, as already noticed, had left behind him his widow and two married daughters besides his sons. The married daughters, according to Mitakshara Law could not be his in the presence of the sons even in relation to self-acquired properties. The case of the widow by reason of the advent of Act XVIII of 1937, as amended by Act XI of 1938, is somewhat different in that she acquires an equal share with her sons in the self-acquired property of her husband, he having died intestate. Even in coparcenary property she would step into the shoes of her husband and would be entitled to the same share as her husband would have had without disrupting the joint family status But in either case the interest that would devolve on her would be a limited estate. The Hindu Succession Act (AC XXX of 1956) came into force on June 17, 1956. It mad further inroads on Mitakshara Law maily in the matter of succession by introducing basic radical changes in the law of succession to the property of a Hindu dying intestate and incidentally in certain other connected matters. In has infact set down infirm comprehensive system of inheritance applicable to all schools of though. It has provided for, in Sections 8 to 13, a set of general rules in this behalf and also rules for ascertainment of shares and portion of each sharer. Separate general rules relating tot he succession to the property of a female Hindu dying intestate have been provided in Sections 15 and 16. The changes made in these line are of far-reaching consequence. The property possessed by a female Hindu either acquired before or after the commencement of the said Act is under this law her absolute property as provided in Section 14. with full power of disposition thereof. whether by acts inter-vivios or testamentary. Indeed the Widow's limited estate has been rules of succession bearing on the joint family and adoption etc. have been introduced by the Act. Of these, Section 6. which we propose to deal with at some length in the latter part of this judgment, is concerned with devotion, of interest in coparcenary property. According to the substantive clause in that section. if a copartner dies intestate, his interest shall ordinarily devolve upon the surving members of the coparcenary by rule of survivorship without disrupting the joint family status. So far, there is no departure for the old Mitakshara Law. But the proviso to Section 6 has made all the difference where a coparcencer dies leaving a female relative specified in class I of the Schedule or a make relation specified in that class who claims through such female relative. The interest of the deceased in the corparcenary property then shall devolve under the Act and not by the rule if survivorship. Ordinarily the share of a copartner in the coparcenary property becomes determined only on partition. But for the purpose of this section and in order to further the cause of the proviso. the explanation has introduced a legal fiction. According to it, the interest of a deceased Hindu Mitakshara copartner 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 partion or not. It is the change effected by the proviso that seems to be of vital importance for purposes of these cases if the asset in question be held to be a joint family asset in the hands of the deceased. We are no less concerned with the change of law under Hindu Succession Act of 1956 in relation to the nature of father's self-acquired property in the hands of a number of his sons on its devolution on them on his death by rule of succession. Whereas according to the Mitakshara Law they would have would have held it as joint tenants, under Section 19(b) of the Hindu Succession Act they hold it as tenants in common and not as said property will not be joint family property in their hands is a is their sons as it would have been if the Mitakshara Law prevailed.

11. The same result follows if the transactions are judged in the light of the provisions of the Indian Contract Act. A mortgage is essentially contract transferring an interest in immovable property by way of security for a debt due or accruing due in fruit. The mortgagor. in a simple mortgage contracts that he will repay the total amount due to the mortgagee as a single debt or suffer the sale of the mortgage security through Court in default. The subject matter of contract thus is the amount or debt and security. The transaction is one and indivisible in relation to both of them. The cause of action likewise is a necessarily one and indivisible. If the mortgagee dies leaving several heirs. his right to enforce the mortgage, as a single debt devolves jointly on them by operation of law. The claim being embraced in one transaction it cannot be split and up has therefore to be enforced jointly. At any rate as valid discharge cannot be given by one or some of them but only all of them, they have to be parties to the action brought. That indeed is implicit in the very nature of the right they get. As a single right has devolved on them jointly the principle contained in Section 45 of the Indian Contract Act is necessarily attracted. That provision is explicitly clear that joint promises cannot divide the debt and sue severely for their respective portions unless a contrary intention appears from the contract. What is true in the case of joint promises equally applies to their representatives on their death. Section 67 of the Transfer of Property Act inter alia embodies similar principle as contained in Section 45 of the Indian Contract Act. No suit, therefore can be brought to enforce a mortgage which would involve splitting up of either the amount or security unless there is a contract tot he contrary. In this premises the action that should be laid must not only convert the entire right but also all the necessary parties must be impleaded therein.

26. Section 6 reads thus:

"6 When a male Hindu dies after the commencement of this Act, having at the time for his death an interest in a Mitakshare coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that if the deceased had left him surving a female relative specified in class I of the Schedule or a male relation, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshare coparcenary property shall devolve by test amendatory or intestate succession as the case may be under this Act and not by survivorship.

The sections divided into two distinct parts according to its contents and effect. One of these parts is expressly in the form of a proviso. Two explanations are added to the section, by introducing a legal fiction and the other excluding an already separated copartner or his her is from claiming any share in the interest of the deceased coparcener to which he would otherwise have been entitled inter the terms of the proviso.

27. The section is concerned with Mitakshara coparcenary property. The coparacenary property, as already noticed. is no other than the joint family property in which according to Mitakshara law a coparcener gets eight by birth. It is distinct from separate property which devolves by rule of succession. Mainly and essentially it is apartibandhadya or unobstructed heritage which is not recognised by the Daya Bagha law. The later knows of only obstructed heritage in which the right accures not by birth but on the death of the last owner without leaving make issue. Every coparacener has joint interest and joint possession., The ownership of coparcenary property vests in the entire body of coparceners. The peculiar feature of the coparcenary is that no individual member so long as the joint family remains undivided can predicate that he has a precise or definite share in the property for his undivided interest in the joint property is liable to fluctuate with the births and deaths in the family. His interest in enlarged with the death of a male member and diminishes with the birth of such member. The undivided interest of the deceased coparcener devolves on the surviving coparceners on his death by ruloe of survivorship which is distinct from rule of succession. It is only on partition that a copartner becomes entitled to a definite share. Thus, the characterstic features of parcenary property are that it vests in each copartner on this birth and devolves on the surviving coparcener by survivorship on the death of coparcerner and the definite shares of each of the coparcenrs therein become specified only on partition. It is no according to Mitkahsara Law.