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Issue No. 3:

15. The third issue dealing with the question whether the suit property is HUF or ancestral property is really the crucial question. It is not in dispute that originally the property was purchased as perpetual lessee by the grandfather of the plaintiff, Late L. Roop Narain, in pursuance to the perpetual lease deed Ex.DW1/1. The property thereafter devolved by succession on the children of Late L. Roop Narain on his demise. Late L. Roop Narain was survived by the father of the plaintiff Shri Amar Nath Bhatnagar as also another brother and sisters. However, the property was mutated only in the Page 1025 name of Amar Nath Bhatnagar as per Ex.PW1/2 being the mutation letter dated 1.7.1960. The same has been done in view of the fact that the other heirs of Late L. Roop Narain relinquished their interest in favor of late Amar Nath Bhatnagar. The Relinquishment Deed dated 24.5.1958 registered on 29.10.1958 has been proved by defendant No. 1 (DW4) as Ex.DW1/1. This clearly shows that late Shri Amar Nath Bhatnagar had inherited only 1/6th share in the property and became the absolute owner of the property only on the Relinquishment Deed being executed by the other five legal heirs of Late L. Roop Narain.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

26. It was thus submitted that wherever a provision is made under the Act, the ancient Hindu Law would cease to operate.

27. Learned counsel for the defendants referred to two important judgments of the apex court in this behalf to contend that the property was not an ancestral property. Before discussing the judgments, as noticed above, an important fact is that the property was inherited not by the father of the plaintiff alone but he inherited the same along with his brothers and sisters. The brothers and sisters relinquished their share specifically in his favor as per the Relinquishment Deed and thus there was no devolution of 5/6th share of the estate on him but rather the same devolved on the father of the plaintiff in pursuance to the Relinquishment Deed. Only 1/6th share devolved from late L. Roop Narain.

28. The first judgment referred to by learned counsel for the contesting defendants is Commissioner of Wealth-tax, Kanpur v. Chander Sen . The effect of Section 8 of the said Act was discussed. Section 8 is as under:

8. General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

30. The second judgment referred to is of Yudhishter v. Ashok Kumar . It was held that the property which devolved on a Hindu under Section 8 would not be an HUF property in his hand vis-a-vis his own son. It was observed in para 10 as under:

10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen , where Page 1029 one of us (Sabyasache Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes 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 separate 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 SCC) (at p.1760 of AIR) of the report this Court dealt with the effect of Section 8 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. 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.