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2.3. In terms of the pleading in paragraph 3 of the plaint, it was alleged in the application that during the lifetime of plaintiff's grandfather Chikka Mallappa, he acquired several lands and subsequent to his death, his children partitioned all the joint family properties by way of Panchayath Parikath on 01.06.1994. In the said partition, 'B' schedule properties were allotted to the share of defendant No.1.

2.4. Such pleadings in the plaint make it clear that Chikka Mallappa having died intestate and the property having devolved under Section 8 of the Hindu Succession Act, 1956 (for short, "the said Act") under the partition of 01.06.1994, the property becomes an individual and exclusive property of defendant No.1 and defendant No.1 inherited the same with an absolute right to alienate the same.

22. In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.

3.6. The decision of the Apex Court in the case of YUDHISHTER vs. ASHOK KUMAR reported in (1987) 1 SCC 204, more particularly paragraph 10, which is reproduced hereunder for easy reference:

" This question has been considered by this Court in CWT v. Chander Sen, where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edn. pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house. But as mentioned hereinbefore, even if we proceed on the assumption that the respondent was a member of the HUF which owned the ancestral house."

11.In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 1987 SC 558 referring to the earlier judgment in the case of Chander Sen (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and others Vs. Lal Chand and another reported in (2006) 8 SCC 581, it has been further clarified by the Supreme court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act. The Single Bench of this Court in the matter of Chandrakanta and another Vs. Ashok Kumar and others, reported in 2002(3) MPLJ 576 has also held that after coming into force of Hindu Succession Act, the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in the matter of Babulal and others Vs. Ramkali Bai & others, reported in ILR [2012] MP1271. The aforesaid judgment of this Court has been upheld by the Apex Court in case of Uttam Vs. Saubhag Singh &Others, reported in 2016(4) SCC 68, therefore, from the aforesaid law, the issue has been settled now that during lifetime of father the son cannot claim the right in the property during the lifetime."