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4. Following the same line of reasoning and several judgments of this Court, the High Court in second Appeal dismissed the said appeal, holding:-

“15. Thus in view of the provisions contained in Sections 4,6, 8 and Schedule of the Act as well as the law settled by the aforesaid judgments, it is clear that after coming into force of the Act grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.

16. In the present case, it is undisputed that Jagannath had died in the year 1973, leaving behind respondents No. 1 to 4 i.e. his four sons covered by Class I heirs of the schedule therefore, the properties had devolved upon them when succession had opened on the death of Jagannath. It has also been found proved that no partition had taken place between respondents No. 1 to 4. The appellant who is the grand son of Jagannath is not entitled to claim partition during the lifetime of his father Mohan Singh in the properties left behind by Jagannath since the appellant has no birth right in the suit properties.

17. In view of the aforesaid, the substantial questions of law are answered against the appellant by holding that the first appellate court has committed no error in dismissing the suit for partition filed by the appellant referring to Section 8 of the Act and holding that during the lifetime of Mohan Singh, the appellant has no right to get the suit property partitioned.”

5. It is this judgment that has been challenged before us in appeal.

6. Shri Sushil Kumar Jain, learned senior advocate appearing on behalf of the appellant, took us through various provisions of the Hindu Succession Act, and through several judgments of this Court, and contended that Section 6, prior to its amendment in 2005, would govern the facts of this case. He conceded that as Jagannath Singh’s widow was alive in 1973 at the time of his death, the case would be governed by the proviso to Section 6, and that therefore the interest of the deceased in the Mitakshara coparcenary property would devolve by intestate succession under Section 8 of the said Act. However, he argued that it is only the interest of the deceased in such coparcenary property that would devolve by intestate succession, leaving the joint family property otherwise intact. This being the case, the plaintiff had every right to sue for partition while his father was still alive, inasmuch as, being a coparcener and having a right of partition in the joint family property, which continued to subsist as such after the death of Jagannath Singh, the plaintiff’s right to sue had not been taken away. He went on to argue that Section 8 of the Act would not bar such a suit as it would apply only at the time of the death of Jagannath Singh i.e. the grandfather of the plaintiff in 1973 and not thereafter to non suit the plaintiff, who as a living coparcener of joint family property, was entitled to a partition before any other death in the joint family occurred. He also argued that the Hindu Succession Act only abrogated the Hindu Law to the extent indicated, and that Sections 6 and 8 have to be read harmoniously, as a result of which the status of joint family property which is recognized under Section 6 cannot be said to be taken away upon the application of Section 8 on the death of the plaintiff’s grandfather in 1973.

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having 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 :

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, 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.

“The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre-conditions of Section 6 are satisfied and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappa's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to Section 6 comes into play and the normal rule is excluded. Khandappa's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to Section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.