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10. It become unnecessary for this court to ponder further with this controversy relating to the rights of the co-parcener because the cited decision must be held to be patently distinguishable. The appeal before the Supreme Court had been filed before the coming into force of the Hindu Succession Act, 1956. The matter in question therefore was totally covered by the old Hindu Mitakshara law. Position has undergone a significant change after coming into force of the Hindu Succession Act, 1956. Section 8 of the Hindu Succession Act provides the general rule of succession in case of males. In case of male Hindu dying intestate the property has to be devolved firstly upon the heirs of Class 1 of the Schedule. Father of the plaintiff would be a heir of Class 1 of the Schedule and since he is alive the plaintiff cannot claim right to succeed. The said question had been considered by the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur etc. v. Chander Sen etc. in CA Nos. 1668-70 of 1974 decided on 16th July, 1986. In paragraph 14 this controversy had been taken note of and it was held that under Section 7 of the Hindu Succession Act the property will devolve on the son in the Indian individual capacity. The said paragraph reads:-

"It is clear that under the Hindu law, the moment a son is born, he gets a share in the 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 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. But the question is : is the position affected by Section 8 of the Succession Act, 1956 and if so, how ? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs include the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view."

13. Thereupon conclusions were drawn in paragraph 9, which reads:-

"When the aforesaid principles of law laid down by the Supreme Court are applied to the facts of the present case, as the provision of Hindu Succession Act, 1956 are applicable to the case in hand since Raja Ram died in the year 1969, it would be the natural conclusion that the son would succeed on the death of the father as absolute owner and the property would not be deemed to be ancestral property in his hand so as to entitle the grand son to have interest in it. In Yudhishter v. Ashok Kumar, the Supreme Court has observed that it would be difficult to hold that property which devolved on a Hindu under the Hindu Succession Act, 1956 would be HUF in his hands 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 grand father could not be said to be HUF property."

14. The above quoted precedents clearly provide the answer to the argument of the learned counsel for the plaintiff. Not only that in the present case admittedly there was a settlement even before the plaintiff was born and in accordance with the said settlement the property in dispute fell to the share of the defendant. Thereafter there has been two litigations admittedly between the defendant, his brothers and father. In settlement were arrived at and defendant was held to be the owner of the suit premises. Keeping in view the said fact that property had devolved to the defendant even before the plaintiff was born and also that as per the law i.e. Section 8 of the Hindu Succession Act the obvious conclusion would be that property cannot be termed to be one in which the plaintiff at this stage can claim a right or thereafter an injunction thereto. Consequently prima facie it cannot be termed that plaintiff has a case to seek an ad interim injunction.