ORDER
G.N. Prasad, J.
1. The petitioners before me are the plaintiffs of a Small Cause Court suit which had been instituted by their father Shri Ram Briksh Prasad for recovery of arrears of rent in respect of a gola situated over 1 katha 4 dhurs of land appertaining to plot Nos. 218 and 218/596 in village Raipatti. The original plaintiff Ram Briksh Prasad died on the 8th November, 1968 whereupon the present petitioners who are his sons, were substituted in his place within the period of limitation. Subsequently it transpired that Ram Briksh Prasad had also left behind a married daughter but she had not been impleaded as a party in the suit. A question, accordingly, arose in the trial Court as to whether the suit was maintainable at the instance of only the sons of Ram Briksh Prasad. The learned small Cause Court Judge has non-suited the petitioners substantially on two grounds. He has held in the first instance that the petitioners are not entitled to any decree in the suit since they have not obtained a succession certificate consequent upon the death of their father Ram Briksh Prasad. Secondly, the learned Judge has held that the suit can no longer proceed in absence of the married daughter of Ram Briksh Prasad inasmuch as the suit to that extent has abated,
2. It is not necessary to mention any other plea or pleas taken on behalf of the defendants inasmuch as they have all been negatived by the learned Small Cause Court Judge. So the only question which I have to decide in this application in revision is whether the learned Small Cause Court Judge is right in dismissing the suit on the two grounds mentioned above,
3. To deal with this question we must refer to the provisions contained in Section 6 of the Hindu Succession Act (Act XXX of 1956). The substantive part of Section 6 lays down that when a male Hindu dies after the commencement of this Act, haying 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. But there is a proviso to Section 6 which so far as it is relevant for our present purpose reads thus:
“Provided that, if the deceased had left him surviving a female relative specified in class I of the schedule ….. 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”.
In order to see how far these provisions are applicable to the facts and circumstances of the present case it is necessary in the first instance to decide what was the nature of the property in the hands of Ram Briksha Prasad at the time of his death. In paragraph 34 of the impugned order it has been mentioned that the interest of deceased Ram Briksh Prasad was in the coparcenary property. Therefore, even during the lifetime of Ram Briksh Prasad the petitioners as his sons had interest in the gola in question as an item of their Mitakshara coparcenary property. There can be no doubt that after the death of Ram Briksh Prasad it was competent to the petitioners to continue the suit for the realisation of the outstanding arrears of rent in respect of their own interest in the Mitakshara coparcenary property. For that portion of their claim the petitioners did not stand in need in applying for or obtaining any succession certificate. Upon the finding to the effect that Ram Briksha Prasad died leaving behind three sons and one daughter it is manifest that the extent of the interest of Ram Briksh Prasad in the coparcenary property in question was 1/5th. It was only in this 1/5th interest of Ram Briksha Prasad in the coparcenary property that the proviso to Section 6 had become applicable. In other words, the 1/5th interest of Ram Briksh Prasad in the gola in question as also in the outstanding arrears of rent had devolved both upon his three sons and his married daughter by intestate succession and not by survivorship. Therefore, the question of succession certificate or the absence of it could only affect the 1/5th share of the outstanding arrears of rent in respect of the Sola in question for which the suit had been instituted. Quite clearly, therefore, the learned Small Cause Court Judge was not justified in dismissing the entire claim laid in the suit on the ground that no succession certificate had been obtained by the petitioners before proceeding to realise the share of the outstanding rent to which deceased Ram Briksh Prasad was entitled under the law. Nor do I think that the learned Small Cause Court Judge was justified in throwing out the entire claim in the suit on the ground that one of the heirs of Ram Briksh Prasad, namely, his married daughter had not been impleaded as a party in the suit. The absence of the married daughter of Ram Briksh Prasad on the record of the suit could at best affect the 1/5th share of rent which was sought to be recovered in the suit. Even if, it were to be assumed that the claim in the suit had abated so far as the married daughter of Ram Briksh Prasad was concerned the abatement could affect only her interest in the proportionate share of Ram Briksh Prasad in the property in question. In either view of the matter the learned Small Cause Court Judge was not justified in dismissing the suit in its entirety.
4. Upon the view which I have expressed above it is necessary to determine as to what extent the claim laid in the suit is fit to be decreed upon the present state of record. The total claim laid in the suit was for Rs. 529.55 which included some amount by way of interest over the sum of Rs. 481/- which was the amount of rent due from the defendants for nearly a period of 14 months that is to say from the 1st November, 1966 to the 21st December. 1967. Quite clearly the plaintiffs are not entitled to recover anything by way of interest over the outstanding arrears of rent. Therefore, out of the sum of Rs. 481/- which was sought to be recovered as the outstanding rent for the premises in question the proportionate l/5th share of Ram Briksha Prasad came to Rs. 96.20. It is only with, respect to this sum of Rs. 96.20 that in view of the proviso of Section 6 the difficulty arising from the omission to obtain the succession certificate could arise. Therefore, only that extent of the rent claimed cannot be granted to the petitioners for the reasons given above. But so far as the remaining amount of Rs. 384.80 is concerned I find absolutely no justification for declining to decree the suit in favour of the petitioners.
5. For the aforesaid reasons this application is allowed in part and the claim laid in the suit is decreed to the extent of Rs. 384.80 in favour of the petitioners.
6. Since the defendants have not appeared in this Court there will be no order as to costs.