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Mr.Bhandari, learned Senior Counsel, appearing for the appellants, has persuasively argued that with the commencement of the Hindu Succession Act, 1956 (for short hereinafter referred-to as the Act of 1956), any property devolving on a Hindu on the death of his father, did not constitute HUF property consisting of his own branch including his sons. A son born in the joint family did not have any right in the joint family property and, thus, the suit filed by the grand sons in the case in hand, amongst others, against their grand father and father is patently unsustainable in law and on facts. Moreover, as grand sons are not heirs within the Classes enumerated in Schedule-I to the Act of 1956, the plaintiffs herein had no right whatsoever to seek partition of the joint family property, as claimed and, therefore, their suit ought to have been adjudged non est. Contending that in the facts and circumstances of the case, Section 6 of the Act of 1956 has no application, the learned Senior Counsel insisted that as no question of survivorship was comprehensible, the grand father and father of the plaintiffs being alive, their suit cannot be saved on this measure as well. Mr.Bhandari has urged that the question of maintainability of the suit in this premise being per se one of law, the appellants cannot be prohibited from raising the same in the present appeal, even if not pleaded in the written statement. Further, as this issue had been dealt with by the learned Single Judge by acknowledging a son's right in the joint family property by birth while deciding the issue of maintainability of the suit, this question is assuredly open to be examined by this forum. Referring to the pleadings and the evidence on record, Mr.Bhandari has urged that it would be apparent therefrom that Hari Narain had instituted a suit in the year 1946 seeking partition of the joint family property and securing his share therein and that with the intervention of the arbitrators, the matter was amicably settled following which he did receive an amount of Rs.9999/- and had executed a document dated 14.4.1947 (Ex.A.7). Learned Senior Counsel maintained that in the face of such overwhelming evidence on record, it had been established beyond doubt that not only with the institution of the suit by Hari Narain, the joint family status of the property had ceased to exist, he having received an amount of Rs.9999/- in lieu of his share therein, the suit filed by his sons was clearly not maintainable in law and was misconceived.

In Commissioner of Wealth Tax vs. Chander Sen, (1986) 3 SCC 567, the Apex Court dwelt upon the impact of Section 8 of the Act of 1956 on the time tested canon of Hindu Law that the moment a son is born, he gets a share in the father's property and becomes a part of the coparcenery and right accrues to him not on the death of his father or inheritance from him but with the incident of his birth and that whenever the father would get a property from whatever source, either from the grand father or any other source, be it separated property or not, he would have a share in that and it would become part of the joint Hindu family of his son and grand son and other members, which would constitute the joint Hindu family with him. Their Lordships, while referring to the preamble of the Act, which proclaimed that the enactment was to codify the law relating to succession among Hindus and the overriding mandate over any text, rule or interpretation of Hindu Law or any custom or usage as per the Hindu Law in force immediately before the commencement of the Act as contained in Section 4 did notice as well Section 6 dealing with the devolution of any interest in the coparcenary property mandating that when a male Hindu dies after the commencement of the 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 the Act. That proviso indicated 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 claimed through such female relative, the interest of the deceased in Mitakshara coparcenary property, would devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship, was too taken note-of. The predication of Section 19 of the Act that if two or more heirs succeed to the property of an intestate, they would take the property per capita and not per stirpes and as tenants-in-common and not as joint tenants, was noticed as well. Referring to Section 8 and the scheme of the Act, it was held that the property of a father who dies intestate devolves on his son in his individual capacity and not as `Karta' of his own family and that in that eventuality, the son's son gets excluded, he being not a Class I heir enumerated in the Schedule to the Act of 1956. It was, thus, held that when the Schedule did indicate the heirs of a Hindu dying intestate, it was not possible to conclude that when the son inherits the property in a situation contemplated by Section 8 of the Act of 1956, he takes it as a `Karta' of his own undivided family. Their lordships held that even the right of a son's son in his grandfather's property during the lifetime of his father, which existed under the Hindu Law as in force before the Act, was not saved expressly thereby and, therefore, the earlier interpretation of Hindu Law giving a right by birth in such property ceased to have effect.

In CWT vs. Mukundgirji, (1983) 144 ITR 18 (AP), the quaere before the Apex Court was that whether in the facts and circumstances of the case, the property devolved on the assessee on his father's death, was assessable as of the individual or of HUF. The facts disclosed that the business assets had, prior to the proposed assessment, been divided amongst the sons of the deceased but the assessee did not include the property in his share in his individual tax return and instead, filed a separate return in the status of HUF. Their lordships while observing that Section 6 of the Act dealt with devolution of an interest in the coparcenary property, in the facts involved, held that it had no application, as the grand father of the assessee on the date of his death, was not a member of the coparcenary. It is in this context that it was held that the property which devolves on a heir mentioned in Class I of Schedule, under Section 8 did constitute his absolute property and that his sons did not have any right by birth therein and, therefore, cannot claim any share or sue for partition of such property.

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.