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These relations do not get a vested interest in the property by birth. Until the death of the owner they only have a spes successionis or a bare chance of succession which is contingent upon surviving the owner.

-page 369 (xxxvi) Unobstructed heritage devolves by survivorship; obstructed heritage devolves by succession. -page 369 (xxxvii) Property jointly acquired by the members of the joint family, with the aid of ancestral property, is also joint family property. Property acquired by them without the aid of ancestral property may or may not be joint family property. -page 370 (xxxviii) The term joint family property is synonymous with coparcenary property. -page 370 (Separate property would be synonymous with self acquired property.) -page 370 (xxxix) A coparcener has joint interest or joint possession in joint family property or coparcenary property. -page 370 (xl) Property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. His son, grandson and great-grandson would acquire an interest in it by virtue of their birth, if they have a male issue. (Hence ancestral property is inherited and not self acquired property.) -page 372 (xli) If a person who acquired a property by birth has no male issue, he would hold that property as absolute owner thereof and he would be able to deal with it as he pleased. However if he had a male issue in existence at the time he inherited the property or if he had a male issue subsequently, they would become entitled to the interest in the property by virtue of their birth. -page 372 (xlii) A father cannot change the character of the joint family property into absolute property of his son by bequeathing it to him as if it was the self acquired property of the father. It would be ancestral property only in the hands of the son. His son would acquire it by survivorship since he would acquire an interest in it by his birth. -page 372 (Hence since the father cannot bequeath the property after his death, he cannot also transfer such property during his lifetime inter vivos.) (xliii) A person inheriting property from his three immediate paternal ancestors (father, father's father and father's father's father) must hold it in coparcenary with his son, son's son and son's son's sons. Such property is ancestral as regards his male issue. -page 373 (xliv) A son takes an interest equal to that of the father in ancestral property upon his birth. -page 377 (xlv) This right is wholly independent of his father. He does not claim through his father. -page 377 ........ "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father." (see mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). (See. Valliammai Achi Vs. Nagappa Chettiar & Anr. AIR 1967 SC 1153) Hence the transfer of such property would affect the interest of the son in the ancestral property.

In that case there was partial partition. The Court was concerned with the partitioned property. Another property which was house property of the family had continued to remain joint as has been set out in para 2 of that judgment. The Court was not concerned with how that house property had devolved upon the son since it remained joint. It was observed in para 2 of the judgment that that property devolved by survivorship. We are concerned with such properties. It would have to be seen how such property would survive inter alia to the applicants.

In the above case there was a partition of the HUF during the lifetime of the father with his son.

It would not matter even where there is no partition if the father died leaving behind female relative (heir) as in this case. That aspect is not covered by the Supreme Court Judgment but directly falls under the aforesaid clear statutory provision of HSA. When those provisions applied also there would be no Hindu undivided family which could be visualized or envisaged for such interest of such deceased coparcener. The very concept of the HUF would then stand diluted or even terminated upon the death of coparcener. It, therefore, follows as a corollary that upon the death of any coparcener, there is a notional partition after 1956 and a deemed statutory partition after 2005 and the share which devolves upon any copercener in case of a family having female relative (heir) would be only upon succession and would devolve only as their individual property incapable of being partitioned and in which their own heirs would have no interest by their birth or by their continuance.

Again this was not coparcenery property which devolved upon the son.

However it would make no difference if the interest in a coparcenery property devolved upon the son in case where the father left behind a female relative (heir) because that would devolve by succession as per Section 6 under Section 8 of the HSA.

30. The Supreme Court also accepted the judgment of the Andhra Pradesh High Court in the case Wealth-tax, A.P.-II Vs. Mukundgirji, 144 ITR 18 : (1983 Tax LR 1370) where the property devolved under Section 8 of the HSA. It was observed by the Andhra Pradesh High Court that the Parliament wanted to make a clean break from the old Hindu Law in certain respects consistent with modern egalitarian concepts. The intention of the law was to depart from the pre-existing Hindu Law as is reflected also from Section 19 of the HSA. Hence it was observed by the Supreme Court in the case of Chander Sen (supra) that when any property devolved upon a Hindu under Section 8 of the Act it could never be HUF property in the hands of successor vis-a-vis his own sons because if it was not so, it would amount to creating two classes amongst Class I heirs viz. the male heirs in whose hands it would be joint family property and the female heirs for whom such concept could not have been applied or contemplated then (prior to 2005).