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11. While Section 6 of the Act governs the devolution of interest in a coparcenary property, i.e., a joint Hindu property that is governed by the Mitakshara law, Section 8 prescribes the general rules of succession in case of Hindu males dying intestate and leaving behind properties, which would then devolve as per the provisions of Chapter II, in the manner as stipulated in the said Section. The said Section is reproduced herein below for ready reference:-

8. General rules of succession in the case of males:-

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

12. It has been held in a series of judicial pronouncements that under Section 8 of the Act, a property that devolves on a Hindu cannot be treated as an HUF property in his hands, vis-à-vis his own sons. As observed by this Court in the case of Bharat Bhushan Maggon vs. Joginder Lal and Ors., [CS(OS)No.116/2012], decided on 15.10.2012, 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 an HUF property in his hand, vis-a- vis his own sons.

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-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 appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." (emphasis added) The aforesaid decision in the case of Commissioner of Wealth- tax, Kanpur (supra) was followed by the Supreme Court in the case of Commissioner of Income Tax vs. P.L. Karuppan Chettiar (supra).

24. Moreover, even as per the plaintiff, the suit property was purchased by Shri Chatta Bihari, who had expired on 29.05.1943 and he was survived by Shri Laxmi Narain Johri as his sole legal heir. As mentioned above, Shri Laxmi Narain Johri had three sons and when he expired on 27.08.1972, all the three sons had acquired 1/3rd share each in the suit property and as the same had devolved upon them per capita and not per stirpes in terms of Section 19 of the Act, they were fully entitled to alienate their respective undivided shares. As a result, when Shri K.K. Johri expired on 29.10.1985, his 1/3rd share in the suit property devolved upon the defendant No.1, Shri Deepak Johri (father of the plaintiff) as the sole surviving legal heir and in his individual capacity. It cannot be said that the nature of said portion of the suit property was ancestral in the hands of the defendant No.1 or that it had acquired the colour of an HUF property, and defendant No.1 was a karta thereof, when the plaint is absolutely silent on this aspect. For the plaintiff to claim half of the 1/3rd share in the suit property during the lifetime of his father, it was for him to have made an averment in the plaint to the effect that there existed an HUF of which the defendant No.1 was a karta and the plaintiff was a coparcener. When the plaintiff has failed to lay the very foundation of his case by claiming the existence of an HUF and a coparcenery therein, he cannot be permitted to invoke the provisions of Section 6 of the Act that governs devolution of interest in a coparcenary property. Therefore, it has to be held that the provisions of Section 8 are applicable to the facts of this case.