JUDGMENT : ( 1. ) THE dispute in this appeal relates to a house and some agricultural lands situated in village Jarwe, Tahsil Janjgir, District Bilaspur. To understand the controversy, it is convenient to give the following table:C:\program Files \regentdatatech\image\np_485_mplj_1978.jpg ( 2. ) THE property in dispute was originally held by Mohan. He died sometime in 1929-30 leaving behind his son Abhairam as his heir. Abhairam married twice. From his first wife, who predeceased him, he had a son Horilal. Abhairam died in 1944 leaving behind his second wife Deepabai and son horilal from the predeceased wife. As the property in the hands of Abhairam was ancestral property, on the birth of Horilal it became coparcenary property. On the death of Abhairam, his interest in the coparcenary property passed to his widow Deepabai under section 3 (2) of the Hindu Womens Rights to Property Act, 1937. Horilal died in 1949 leaving his son Lakhanlal and a daughter yogmaya. Lakhanlal died unmarried after the coming into force of the Hindu succession Act sometime in 1959-60. On 30th September 1961, Deepabai sold the house and the agricultural lands in favour of Madan Mohan, Shyam Sunder and Murli Manohar. Subsequent to this sale, Deepabai and Yogmaya executed a number of sale-deeds in favour of other persons of the same property. The suit giving rise to this appeal was instituted by Madan Mohan, Shyam Sunder and Murli Manohar on 24th October 1963 for possession of the house and lands. Defendants 1 to 6 and 8 and 9 impleaded in the suit are subsequent transferees. Deepabai was also impleaded as defendant No. 7. She died during the pendency of the suit and Yogmaya was impleaded in her place as her legal representative. The defendants contested the suit mainly on three grounds: First, that the sale made in favour of the plaintiffs by Deepabai was fraudulent; secondly, that the sale was hit by section 165 (4) of the Madhya pradesh Land Revenue Code, 1959, and thirdly, that on Lakhanlals death, after coming into force of the Hindu Succession Act, his interest did not pass by survivorship to Deepabai, but it passed to Yogmaya by inheritance under section 8 of the Act and, therefore, Deepabai was not competent to sell the entire property in favour of the plaintiffs. The plea of fraud raised by the defendants was negatived on facts by the Courts below. The plea of fraud raised by the defendants was negatived on facts by the Courts below. As regards the plea that the sale in favour of the plaintiffs contravened section 165 (4) of the Land revenue Code, it was found that the sale covered the entire holding of Deepabai as it then existed and, therefore, the bar of section 165 (4) (b) did not apply. As regards the plea that on the death of Lakhanlal his interest passed to Yogmaya, it was held that Lakhanlals interest passed to Deepabai under section 6 of the Hindu Succession Act and not under section 8 to Yogmaya. On these findings, the Courts below decreed the suit. ( 3. ) ALL the pleas raised in the Courts below were reiterated before me too by the learned counsel for the defendants-appellants. As regards the plea of fraud, it is concluded by a concurrent finding of fact. Learned counsel has failed to point tut any error of law and, therefore, the finding that there was no fraud must be upheld. As regards the plea that the sale in favour of the plaintiffs violated section 165 (4) (b) of the Land Revenue Code, this section then provided that "no Bhumiswami shall have the right to transfer any land if such transfer shall result in a holding the area of which is below five acres of irrigated or ten acres of unirrigated land". The area transferred to the plaintiffs by Deepabai by Ex. P-1 was only 2. 76 acres. There was, however, a proviso to the section which enabled a Bhumiswami to transfer "his entire holding". At the time when the sale was made in favour of the plaintiffs the lands sold were the only lands held by Deepabai and, therefore, the sale was of the entire holding. The sale in favour of the plaintiffs was thus valid being within the proviso. But then it is argued by the learned counsel for the defendants-appellants that Deepabai had earlier to the sale made in favour of the plaintiffs executed three other sales of small portions of her holding which were void being in contravention of section 165 (4) of the Code and, therefore, it cannot be said that the sale in favour of the plaintiffs was of the entire holding. In my opinion, we cannot proceed on the assumption that the sales which were earlier made by Deepabai in favour of third persons were void. The transferees under those sales are not parties to the suit. No one has taken any action against them for invalidating the sales. They are still continuing in possession of the lands sold to them. In their absence, it is not possible to hold in this suit that the transfers made in their favour by Deepabai were invalid and void and in spite of the sales the lands sold to them form part of the holding of Deepabai. So at the time when the sales were made in favour of the plaintiffs, Deepabai had only 2. 76 acres of land and this constituted her entire holding. This entire holding was sold to the plaintiffs. The sale in favour of the plaintiffs was thus valid being within the proviso. ( 4. ) THE last and the important question to be considered in this appeal is whether on the death of Lakhanlal his interest devolved upon Deepabai by survivorship under section 6 of the Hindu Succession Act, or whether it devolved upon Yogmaya by inheritance under section 8. Although Deepabai had acquired the interest of Abhairam under section 3 (2) of the Hindu Womens rights to Property Act, it is not possible to hold that her status was that of a coparcener. The interest that she acquired was a fluctuating interest similar to that held by a coparcener, but in law Deepabai was not a coparcener. This legal position is now settled by two decisions of the Supreme Court : Lakshmi perumallu v. Krishnavanamma (AIR 1965sc 825) and Satrughan v. Sabujpar (1967 MPLJ 448= air 1967 SC 272 ). ( 5. ) SECTION 6 of the Hindu Succession Act, in so far as relevant, reads as follows : "6. 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 bv survivorship upon the surviving members of the coparcenary and not in accordance with this Act. " ( 6. 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 bv survivorship upon the surviving members of the coparcenary and not in accordance with this Act. " ( 6. ) FOR applicablity of section 6, it is necessary that the deceased should have held an interest in a Mitakshara coparcenary property and there should be surviving member or members of the coparcenary to take the deceaseds interest by survivorship. In the instant case, Deepabai was not a coparcener and Lakhanlal was the sole surviving coparcener in the family. The interest held by the sole surviving coparcener is an interest in the coparcenary property : [see Manoharlal v. Bhuri Bai ( AIR 1972 SC 1369 )], Therefore, when Lakhanlal died it can be said that the first condition for applicablity of section 6 was satisfied. But the second condition, that there should be surviving member or members of the coparcenary, cannot be said to be satisfied because Lakhanlal being a sole surviving coparcener did not leave behind any surviving coparcener. Surviving members of the coparcenary within the meaning of section 6 must mean surviving coparceners. Only coparceners are members of coparcenary and if a person in a family is not a coparcener, he cannot be said to be a member of the coparcenary. In this view of the matter, Deepabai, who was not a coparcener, cannot be said to be a surviving member of the coparcenary so as to enable her to take the interest of Lakhanlal on his death. It is argued by the learned counsel for the respondents that Deepabai had obtained the same interest which was held by her husband Abhairam in the coparcenary property under section 3 (2) of the Hindu Womens Rights to Property Act and this interest was a fluctuating interest and, therefore, she was entitled to get the interest of lakhanlal by survivorship in the same manner as Abhairam would have got it. Reliance for this submission is placed on the case of Bhondu v. Ramdayal ( 1959 MPLJ 1173 = AIR 19s0 MP 51 (F. B.) ). Reliance for this submission is placed on the case of Bhondu v. Ramdayal ( 1959 MPLJ 1173 = AIR 19s0 MP 51 (F. B.) ). In this case, it was held that a Hindu widow who has under sub-section (2) of section 3 of the Hindu Womens Rights to Property Act obtained her husbands estate and holds the estate with her minor unmarried son takes upon the death of the son the whole estate by survivorship. Learned counsel for the appellants, on the other hand, has pointed out that a different view was taken on the same point by a Full Bench of the Madras High Court in Manicka Gounder v. Arunachala Gounder ( AIR 1965 Mad. 1 ). In my opinion both these cases are not helpful because they proceed upon the language of section 3 (2) of the Hindu Womens rights to Property Act and the question as to the meaning of the words "surviving members of the coparcenary" as used in section 6 of the Hindu succession Act was not considered in either of these cases. As pointed out by me earlier, a person cannot become a member of the coparcenary unless he is a coparcener and, therefore, Deepabai who was not a coparcener could not take by survivorship under section 6 of the Hindu Succession Act. The intention of the framers of the Hindu Succession Act is not to treat a woman in inheriting under section 3 (2) of the Hindu Womens Rights to Property Act as a coparcener. Section 6 of the Hindu Succession Act, is, therefore, limited to the case of a male Hindu who dies leaving an interest in coparcenary property. A woman acquiring an interest in coparcenary property under section 3 (2) of the Hindu Womens Rights to Property Act becomes a full owner under section 14 of the Hindu Succession Act and on her death her interest passes by inheritence under section 15 and not under section 6. So had Deepabai predecease Lakhanlal, her interest would not have passed by survivorship under section 6, but would have passed by inheritance under section 15 to her heirs. So had Deepabai predecease Lakhanlal, her interest would not have passed by survivorship under section 6, but would have passed by inheritance under section 15 to her heirs. Further, even in a case when a Hindu male dies having an interest in coparcenary property, section 6 has no application if the deceased had left him a surviving female relative specified in Class I of the Schedule irrespective or whether such a female relative had or had not acquired an interest in the coparcenary property under section 3 (2) of the Hindu Womens Rights to Property Act. For example, if the deceased leaves behind his monther or widow of a predeceased son, section 6 will have no application even though the mother or the widow of a predeceased son, as the case may be, had acquired an interest in the coparcenary property under section 3 (2) of the Hindu Womens Rights to Property Act. All this goes to show that Parliament did not include a female acquiring an interest under section 3 (2) of the Hindu Womens Rights to Property Act within the words "surviving members of the coparcenary" as used in section 6 of the Hindu Succession Act. Learned counsel for the defendants-appellants is, therefore, right in his contention that Lakhanlals interest in the property in dispute devolved upon his sister Yogmaya under section 8 of the Act. In this view of the matter, Deepabai wa,s not competent to sell the entire property in favour of the plaintiffs and the sale in their favour was valid only to the extent of half share in the suit property held by Deepabai. ( 7. ) THE appeal is allowed. The judgments and decrees passed by the courts below are modified to this extent that the plaintiffs-respondents suit is decreed for joint possession to the extent of half share. The parties shall bear their own costs throughout. Appeal allowed.