N. R. KUDOOR, J. ( 1 ) IN the village of Jambunathanahalli in Sndhnoor Taluk of Raichur District, there was a joint Hindu family consisting ot'a certain Ayodhi Basappa and his adopted son Virupakshappa Ayodhi Basappa d ed on 16-3-1959 leaving behind a daughter Boledewwa who is the plaintiff and his adopted son Virupakshappa who is the only defendant in the suit which gave rise to this second appeal by the defendant. ( 2 ) DECEAS d Ayodhi Basappa owned two items of landed property and one item of house property constituting his joint family property. He executed a will in favour of his daughter on I7-5-1957 bequeathing all the three items of property to her. Later, in the year 1959, to be precise, on 18-2-1959, he took Virupakshappa in adoption under the adoption deed Ex. D. 1. About a month later, which was on 16-3-1959, Ayodhi Basappa died. It appears, after the death of Ayodhi Basappa, his daughter Boladewwa took possession of all the three items of property belonging to her father Ayodhi basappa, and continued to enjoy them to the exclusion of Virupakshappa. The said virupakshappa brought a suit in O. S No 12/1 of 1960-61 on the file of the Munsiff at Sindhnoor against Boladewwa for declaration of his ownership in respect of all the three items of property left behind by ayodhi Basappa and also for possession. The said suit was decreed in favour of virupakshnppa. Boladewwa unsuccessfully fought the litigation in higher courts and ult mately, the decree obtained by virupakshappa became final and in execution of the said decree Virupakshappa came into possession of the properties in question. Thereupon Boladewwa brought the suit in O. S. No. 73 of 1969 on the file of the Munsiff at Sindhnoor for partitition and separate possession of her half share in all the three items of property together with the other consequential reliefs. ( 3 ) THE trial Court, decreed the suit for partition in respect of two items of landed property declaring her share at 1/4 and rejecting her claim in respect of the house property as per its judgment and decree dated 30th June 1971, Virupakshappa took up the matter in appeal before the Civil Judge, Raichur in R. A no. 61 of 1971 challenging the decree passed by the court of first instance. Boladewwa also preferred RA. 61 of 1971 challenging the decree passed by the court of first instance. Boladewwa also preferred RA. No. 65 of 1971 against that part of the decree which went against her. ( 4 ) THE learned Civil Judge, appreciating the evidence on record, dismissed the appeal preferred by Virupakshappa and allowed the appeal preferred by Boladewwa in part and confirmed the trial court's judgment and decree except the quantification of the share of the plaintiff, which he declared at 1/2 in the two items of landed property as against l/4th granted by the trial Court. Hence this second appeal by Virupakshappa, the defendant in the suit. ( 5 ) SRI S. Vijayashankar, learned advocate appearing for the appallant, strenuously argued supporting the reason ing and the finding of the trial Court regarding the quantification of the share of boladewwa at 1/4th in the two items of landed property, although he did not subscribe to the view taken by the trial court regarding her right to claim a share in the properties left behind by Ayodhi Basappa on the ground that Boladewwa had relinquished her entire interest in the suit lands by receiving some amount of cash and some quantity of gold at the time ayodhi Basappa adopted Virupakshappa under the adoption deed Ex. D. 1 which was overlooked by the court of first instance. ( 6 ) AS against this, Sri Satish Chandra Kumar, appearing on behalf of Smt. Pramila, learned counsel for the respondent strongly supported the finding of the lower-appellate Court both regarding the quantification of the plaintiff's share and also her right to claim a share in the landed property of her late father Ayodhi basappa. ( 7 ) THE only question therefore, that arises for my consideration in this appeal is whether Boladewwa is entitled to a share in the two items of landed property and, if so, what is the correct quantum of her share. ( 8 ) THE answer to the first part of the question will not detain me long. Virupakshappa has questioned the right of Boladewwa to claim a share in the suit lands on the ground that Boladewwa had relinquished her entire interest in them by receiving 12 tolas of gold and Rs. 500 in cash from her late father Ayodhi Basappa under the deed Ex. D. 1 under which ayodhi Basappa adopted Virupakshappa. Virupakshappa has questioned the right of Boladewwa to claim a share in the suit lands on the ground that Boladewwa had relinquished her entire interest in them by receiving 12 tolas of gold and Rs. 500 in cash from her late father Ayodhi Basappa under the deed Ex. D. 1 under which ayodhi Basappa adopted Virupakshappa. It is no doubt true that the adoption deed Ex. D. 1 does contain a recital to that effect. However, Boladewwa was not a party to the document Ex. D. 1. Although it is stated in Ex. D. 1 that boladewwa was also present at the time of the adoption, her signature was not taken to the deed Ex. D. 1 at least by way of acknowledgement for the relinquishment of her interest in the suit lands by receiving 12 tolas of gold and Rs. 500 in cash from her father in lieu thereof. The two courts below, on appreciating the evidence on record, recorded a concurrent finding that Virupakshappa was not successful in showing that Boladewwa had relinquished her right in the suit lands. Since the findings of the courts below is a finding of fact, this Court would not interfere with that finding in the second appeal. ( 9 ) THIS takes me to the second part of the question viz. , the correct quantum of the share to which Boladewwa is entitled. ( 10 ) THE trial Court held that Boladewwa was entitled to 1/4th share in the two items of landed property whereas the lower-appellate court came to the conclusion that she was entitled to a half share in them. However, both the courts below came to the conclusion that she was not entitled to a share in the house property, which finding is not under challenge before me. ( 11 ) IT is undisputed that since Ayo- dhi Basappa died on 16th March 1959, i. e. after the coming into force of the hindu Succession Act, 1956 (for short the 'act'), the devolution of his interest in the property which belonged to the family, stands regulated by S. 6 of the act, which reads :"6. ( 11 ) IT is undisputed that since Ayo- dhi Basappa died on 16th March 1959, i. e. after the coming into force of the hindu Succession Act, 1956 (for short the 'act'), the devolution of his interest in the property which belonged to the family, stands regulated by S. 6 of the act, which reads :"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 by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. : provided that, if the deceased had left him surviving a female relative specified in class 1 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 this Act and not by survivorship. Explanation 1; For the purposes of this section, the interest of a hindu Mitakshara coparcener 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. Explanation 2 : Nothing contained in the proviso to this section shail he construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. " ( 12 ) IT was common ground that the suit lands are Mitakshara coparcenary property. Since Ayodhi Basappa died after the commencement of the Act and when he owned an interest in that property, that interest normally would have devolved by survivorship upon the only surviving member of the coparcenary who was his undivided adopted son virupakshappa. However it is not controverted before me that such survivorship was not possible in the case on hand by reason of what is contained in the proviso appearing below the first paragraph of S. 6 of the Act. Boladewwa is the female relative whom Ayodhi Basappa left behind and this female relative is one of those specified in class 1 of the schedule to the Act. Boladewwa is the female relative whom Ayodhi Basappa left behind and this female relative is one of those specified in class 1 of the schedule to the Act. That being so, instead of the interest of ayodhi Basappa in the coparcenary property devolving by survivorship upon the surviving coparcener Virupakshappa, that interest devolved by intestate succession under the Act, the mode being regulated by S. 8 read with Ss. 9 and 10 of the Act. In consequence of such intestate succession which stands regulated by the aforesaid provisions of the Act, since Virupakshappa and Boladewwa both fall within class 1 of the Schedule to the Act, they are the only heirs upon whom the interest of deceased Ayodhi Basappa in the coparcenary property devolved by intestate succession. Now as to the interest of ayodhi Basappa which devolves upon virupakshappa and Boladewwa by intestate succession and for the determination and quantification of that interest, we should look into Explanation-1 to S. 6 of the Act which provides that, that nnterest is Ayodhi Basappa's share in the property which would have been allotted to him if a partition had taken place immediately before his death. ( 13 ) AYODHI Basappa took in adoption Virupakshappa on 18-2-1959 under the adoption deed Ex. D. 1. The dispute between the parties regarding the adoption was finally set at rest holding in favour of Virupakshappa in the suit O, S. No. 12/1 of 1960-61 instituted by him on the file of the Munsiff at Sindhnoor. The final result of that suit was that the adoption of Virupakshappa by late Ayodhi basappa was established and that the will executed and registered by him on 17-5-57 in favour of his daughter Boladcwwa had been revoked. Admittedly there was no division in the family of Ayodhi Basappa before his death which was on 16-3-1959 after the Act came into force. There is also no dispute that the property was Mitakshara coparcenary property belonging to the joint family of deceased Ayodhi Basa. ppa and his adopted son Virupakshappa. Admittedly there was no division in the family of Ayodhi Basappa before his death which was on 16-3-1959 after the Act came into force. There is also no dispute that the property was Mitakshara coparcenary property belonging to the joint family of deceased Ayodhi Basa. ppa and his adopted son Virupakshappa. Thus, the interest of Ayodhi Basappa in the joint family property on his death would devolve under the provisions of the act and not by survivorship As per Ex- planation-1 to S. 6 of the Act, Ayodhi basappa's interest in the joint family properties shall have to be worked out on the basis of a deemed partition in the family of Ayodhi Basappa consisting of himself and his adopted son Virupakshappa and if it is so worked out, deceased Ayodhi basappa was entitled to a half share in the joint family property which would devolve equally upon Virupakshappa and boladewwa under Rule (2) of S. 10 of the act, they being the heirs specified in class 1 of the schedule to the Act. I see no scope for maintaining that the notional partition assumed for the purpose of determining the interest of the deceased Ayodhi basappa has converted into a real partition resulting in the disruption of the joint family, the coparcenary censing altogether when a coparcener dies so as to disentitle Virupakshappa to a share by succession in the interest of Ayodhi Basappa in the coparcenary property by applying Explanation-2 to S. 6 as done by the lower appellate Court. On the other hand, the family continues to remain a joint family as it was before in respect of its property, minus the share of the deceased coparcener. There is no partition. In fact, there is no severance in status. All that is done under the notional partition st pulated under Explanation-1 is to find out the actual interest of the deceased coparcener that would devolve on his heirs by succession In that view of the matter, it cannot be said that Virupakshappa became separated from the coparcenary before the death of his father so as to bring his case within the ambit of Explanation-2 to S. 6 of the Act. That being so, the share of Boladewwa would be 1/4th and not half as declared by the lower appellate Court. That being so, the share of Boladewwa would be 1/4th and not half as declared by the lower appellate Court. ( 14 ) THE view I take regarding the quantification of the share of Boladewwa is supported by a Bench decision of this court in Padmavati Bai v. Rajappa Gundappa, (1969) 2mys. L. J. 348. The facts of that case were that a joint family consisted of 'a', his wife and a son. The son died after the act came into force. The family estate consisted of buildings in urban area and agricultural lands 0:1 absolute rights and on tenancy rights. After the death of the son, 'a' sold agricultural lands held in absolute right. 'a' died in the year 1960 and his wife filed a suit for possession claiming to be entitled to 2/3rd share in the alienated lands and the rest of the properties. The Court found that there was no legal necessity for the alienation and the alienees had not made proper enquiries. It was held that on the death of the son 1/3 share in family properties devolved on the plaintiff, who is his mother under S. 6 of the Act. Interpreting the scope of S. 6 of the Act, His Lordship govinda Bhat J. , (as he then was) observed thus :" What S. 6 lays down is that if a coparcener dies leaving behind a female heir or a male heir claiming through a female specified in class 1, then what would have been his share, had a partition taken place immediately before his death, would be demarcated by the application of a notional partition and distributed among his heirs. Briefly stated, the share of the deceased coparcener alone will devolve by succession. In construing the scope of legal fiction, it is true that it would be proper and even necessary to assume all those facts on which alone the fiction can operate. The notional partition under S. 6 would mean that the shares of all those persons would also be taken into account who would get a share when actual partition takes place and then alone the exact share of the deceased coparcener can be determined. But all this is done in order to find out the actual interest of the deceased coparcener that would devolve on his heirs by succession. But all this is done in order to find out the actual interest of the deceased coparcener that would devolve on his heirs by succession. Once that is done, there is no partition, in fact, neither there is any severance in status, The family continues to remain a joint family as it was before in respect of its joint family property, minus the share of the deceased co-parcener. " ( 15 ) THE reasons assigned, by the lower-appellate court to its conclusion to quantify the share of the plaintiff at half, re-produced in its own words, are these :"the plaintiff being the daughter of late Basappa is a female heir of class I and therefore, the interest of said Basappa in the coparcenary property should devolve as per the provisions of Hindu Succession Act, and not by survivorship. As per explanation 1, the interest in the coparcenary property held by late ayodhi Rasappa is the share he would have been allotted if a partition of the property had taken place immediately before his death. A notional partition has therefore to be postulated in this case. If partition just before the death of Basappa had taken place, it would have been a partition between only said Basappa and his son the defendant and each one would have been entitled to one half share. It is this half share which devolves upon the plaintiff as per the proviso to S. 6 and under Explanation-2, the defendant (who is the son of the late Basappa) cannot again claim any share in this half share as he has to be deemed to have separated from the coparcenary before the death of Basappa as proved by Explanation-2 to S. 6" ( 16 ) THE lower appellate Court has relied upon two rulings of this Court in Siddaramappa v. Laxmi Bai, (1965) 1 Mys. L. J. 625. and Shivakka v. Sannappa, (1967) 2 Mys. L. J. 624. to come to the aforesaid conclusion. No doubt the ratio of the above decisions would support the reasoning of the lower-appellate court in its construction placed upon Explanations-1 and II to S. 6 and their application to the facts of the case. L. J. 625. and Shivakka v. Sannappa, (1967) 2 Mys. L. J. 624. to come to the aforesaid conclusion. No doubt the ratio of the above decisions would support the reasoning of the lower-appellate court in its construction placed upon Explanations-1 and II to S. 6 and their application to the facts of the case. However, the lower- appellate court failed to notice that the law laid down by this Court in Siddaramappa's case (2) which was followed by narayana Pai, J. (as he then was) in the later decision in Shivakka's case (3) was no more good law on the point in view of the Bench Decision of this Court in padmavathi Bai's case (1) which has overruled the decision in Siddaramappa's case (2 ). In that view of the matter, T am inclined to hold that the conclusion reached by the lower-appellate court that boladewwa, the plaintiff in the suit, was entitled to half share in the suit lands is not in accordance with the provisions of the Act. ( 17 ) TN the result, for the reasons stated above, the appeal is allowed in part. The judgment and decree passed by the lower appellate Court is modified by declaring that Boladewwa (Plaintiff) is entitled to 1/4th share in the two items of the landed properties and that the judgment and decree of the trial Court thereby is confirmed. In the circumstances of the case, I direct each party to bear his own costs. --- *** --- .