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7. Another very material factor that is relevant for consideration is the order dated 28.8.2012 whereunder, an objection had been taken as to the maintainability of the suit instituted by the plaintiff. On the aforesaid date, learned counsel for the defendants No.1 & 2 had submitted that the suit as instituted was liable to be dismissed for the reason that as per the plaintiff‟s own version, late Smt. Krishnawanti (grandmother of the plaintiff) had acquired the suit property from her own funds and that she had expired intestate. It was thus contended by the learned counsel for the defendants No.1 & 2 that upon the death of Smt. Krishnawanti, the suit property had devolved in equal shares on her husband (father of defendant No.1.), defendant No.1 (father of the plaintiff), and the sisters of defendant No.1 and in view of the fact that the deceased father and sisters of the defendant No.1 had relinquished their respective shares in favour of the defendant No.1, he had become the absolute owner of the suit property in his personal capacity. In view of the aforesaid position, learned counsel for the defendants No.1 and 2 had urged that the plaintiff not being a class-I heir under Section 8 of the Hindu Succession Act, was not entitled to institute the present suit during the lifetime of his father, as the suit property could not be treated as an ancestral property in his hands.

11. In view of the aforesaid position, the Court is constrained to dismiss the present application as being devoid of merits.

12. Coming to the suit as instituted by the plaintiff, learned counsel for the plaintiff concedes that there is no quarrel with the legal position that under Section 8 of the Hindu Succession Act, 1956, a property that devolves on a Hindu, cannot be treated as an HUF property in his hands, vis-à-vis his own sons. The Hindu Succession Act lays down rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II, as stipulated in the aforesaid provision. Sub-section (a) of Section 8 of the Act provides that the property of a male dying intestate shall devolve firstly upon the heirs, being the relatives specified in Class I of the Schedule. The list of heirs mentioned in Class I of the Schedule shows that it includes sons, daughters etc. as also son of the pre- deceased son, but does not specifically include the grandson, being the son of a living son. Under the Hindu Law, as soon as a son is born, he gets a share in his father‟s property and becomes a part of the coparcenery. Such a right accrues in favour of the son by virtue of his birth and not on the date of demise of the father or inheritance from the father. However, under Section 8 of the Act, the property that devolves on a Hindu would not be HUF property in his hand, vis-a-vis his own sons.

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. ............ 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. ......... 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-à-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 appellant authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." (emphasis added)

16. The aforesaid principle was also reiterated by this Court in the case of Pratap vs. Shiv Shankar reported as 164 (2009)DLT 479, wherein it was held that under Section 8 of the Act, the property that devolves on a Hindu would not be HUF property in his hands, vis-a-vis his own sons and that the rules of succession as laid down in Section 8 of the Act envisage that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II, in the manner stipulated in Section 8 of the Act.