Prakash Shrivastava, J.:— 1. This appeal under Section 100 of CPC is at the instance of the plaintiff in the suit challenging the reversal judgment of the first appellate court dated 12 January 2005 allowing the respondent's civil appeal No. 2-A/2001 and dismissing the appellant's suit. The trial court by judgment dated 20/12/2000 had decreed CS No. 5-A/1999.
2. The relationship between the parties is not in dispute. Respondents no. 1 to 4 are four sons of Jagannath who was the original owners of the suit property. Appellant is the son of respondent No. 3 Mohan Singh from his wife Indirabai.
3. Appellant had filed suit for partition and possession pleading that the suit property is the joint family property originally owned by late Jagannath and which has not been partitioned between appellant and respondents No. 1 to 4. It was further pleaded that respondent No. 3 Mohan Singh is married to Indirabai from whom the appellant was born. Respondent No. 3 had developed relations with another lady Madhu and had married to her and had thrown out Indirabai from his house and since then Indirabai is living with her father. It was further pleaded that since the suit property is ancestral property, therefore, the appellant was entitled to get it partitioned and receive his share.
4. The suit was opposed by respondents pleading that about 32-33 years back, respondent No. 3 Mohan Singh had relinquished his share in the suit property and remaining three brothers had partitioned the suit property. Indirabai had left the village in 1973 and the appellant has no right in the suit property.
5. The trial court by judgment dated 20/12/2000 had decreed the suit on reaching to the conclusion that Jagannath was the owner in possession of the suit property and appellant was son of respondent No. 3. The respondent's plead that the suit property was partitioned 32-33 years back was not proved and it was also not proved that the respondent No. 3 had relinquished his right in the suit property. Trial court found that the appellant had 1/8 share in the suit property and appellant was entitled to get the suit property partitioned and received his 1/8 share. Accordingly, a decree was passed in favour of appellant holding that he can receive possession of his 1/8 share and also mesne profit @ 2,000 per annum from the date of filing of the suit till the possession is delivered to him.
6. The first appellate court has affirmed the finding of the trial court that the appellant is the son of respondent No. 3 from Indirabai who was wife of respondent No. 3. It was also proved that respondents No. 1 to4 are the sons of Jagannath and that no partition of the suit property belonging to Jagannath had taken place but the first appellate court has set aside the decree of the trial court on the ground that respondent No. 3 is alive and under Section 8 of Hindu Succession Act during the lifetime of his father, appellant has no right to get the suit property partitioned and receive his 1/8 share.
7. This court vide order dated 24/2/2006 had admitted the appeal on following substantial questions of law:-
“(1) Whether under the facts and circumstances of the case the decree of lower court could be sustained as it has ignored the settled position of law that in property of grand-father, grand-son does not claim through his father and in particular when no partition has taken place between plaintiff's father and his brother?
(2) Whether under the facts and circumstances of the case the decree of learned lower court could be sustained as it has reversed the well reasoned judgment of the trial court?”
8. Since, both the aforesaid questions are interrelated therefore, they are decided together.
9. Under the Hindu law existing prior to coming into force of the Hindu Succession Act, 1956, grand-son had birth right in the Mitakshara coparcenary property in the hands of his grand-father but the position has changed after commencement of the Act. Section 4 of the Act provides for over-riding effect of the act on any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act being inconsistent with the provisions of the Act. Section 6 of the Act deals with devolution of interest in coparcenary property and in terms of this Section, interest of a male Hindu dying intestate in the Mitakshara coparcenary property devolves by survivorship upon the surviving members of the coparcenary and not in accordance with the Act and in terms of Explanation (1), the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
10. Under Section 8 of Hindu Succession Act, the property of a male Hindu dying intestate is to devolve according to the provisions of Chapter-II of the Act, firstly upon the heirs, being the relatives specified in Class-I of the Schedule and if there is no class I heir then upon Class II heir and so on. In the schedule grand-son has not been included in the list of class I heirs, whereas son of a predeceased son is included therein, therefore, grand-son's birth right on the coparcenary property no longer exists under the Act and grand-son cannot claim partition during the lifetime of his father.
11. The Supreme court in the matter of Commissioner of Wealth Tax Kanpur v. Chander Sen reported in AIR 1986 SC 1753 while approving the view taken by this Court in the matter of Shrivallabhdas Modani v. Commissioner of Income Tax MP-I, reported in (1982) 138 ITR 673; Allahabad High court in the matter of Commissioner of Income tax UP v. Ram Rakshpal Ashok Kumar, reported in (1968) 67 ITR 164; the Full Bench judgment of Madras High court in the matter of Additional Commissioner of Income Tax v. P.L Karuppan Chettiar, reported in [1978] 114 ITR 523; and judgment of Andhra Pradesh High court in the matter of Commissioner Of Wealth-Tax, A.P-Ii v. Mukundgirji., reported in 144 ITR 18, has held that since in Schedule to the Hindu Succession Act, only son is included and son's son is not included as Class I heir therefore, the son would inherit the property in the situation contemplated by Section 8 of the Act not as Karta of his own undivided family and that one should look only to the Act and not to the pre-existing Hindu law. Referring to Section 8 of the Act, it is held that son's son get excluded and the son alone inherits the property to the exclusion of his son. In the judgment of this Court in the matter of Shrivallabhdas Modani (supra) which has been approved by the Supreme court in the above judgment, it was held by this Court that son's son is not mentioned as Class I heir in the Schedule and therefore, he cannot get any right in the property of his grand-father under the Act. The right of son's son in his grand-father's property during the lifetime of his father which existed under the Hindu law as in force before the Act is not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property has ceased to have effect. It was further held that Section 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. The Allahabad High court in the matter of Commissioner of Income Tax UP v. Ram Rakshpal Ashok Kumar (supra) has held that in case of assets of business left by father in the hands of his son, it would be governed by Section 8 of the Act and he would take in his individual capacity. The Madras High court in the matter of Additional Commissioner of Income Tax v. P.L Karuppan Chettiar (supra) had held that by reason of Section 8 of the Act, the son's son gets excluded and the son alone inherits the property to the exclusion of his son and that the statutory provision contained in the Act must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4(1). The Andhra Pradesh High court in the matter of Commissioner Of Wealth-Tax, A.P-Ii v. Mukundgirji. (supra) had taken the view that the properties which devolved upon heirs mentioned in Class I of Schedule under Section 8 of the Act constituted the absolute properties and the son's son will have no right by birth in such properties. The Supreme court in the matter of Chander Sen (supra) has approved the above view of this Court as well as Allahabad, Andhra Pradesh and Madras High Courts. The contrary view of the Gujarat High court has been dis-approved by the Supreme court.
12. In the matter of Yudhishter v. Ashok Kumar, reported in AIR 1987 SC 558 referring to the earlier judgment in the case of Chander Sen (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi v. Lal Chand reported in (2006) 8 SCC 581, it has been further clarified by the Supreme court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act. The Single Bench of this Court in the matter of Chandrakanta v. Ashok Kumar, reported in 2002 (3) MPLJ 576 has also held that after coming into force of Hindu Succession Act, the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in the matter of Babulal v. Ramkali Bai, reported in ILR [2012] MP 1271.
13. Counsel for the appellant has placed reliance upon the judgment of the Supreme court in the matter of Valliammai Achi v. Nagappa Chettiar reported in AIR 1967 SC 1153 but the said judgment is under the provisions of Succession Act 1925 and the effect of the Act of 1956 has not been considered. He has further placed reliance upon the judgment of the Supreme Court in the matter of Gulabrao Balwantrao Shinde v. Chhabubai Balwantrao Shinde, reported in AIR 2003 SC 160 but in that case also, Balwantrao Shinde had died on 27 June 1954 prior to the coming into force of the Act, 1956 and the share in the property of Balwantrao was claimed. Even otherwise that was a case relating to the effect of Section 14 of the Act.
14. Counsel for the appellant has further placed reliance upon the judgment of the Supreme court in the matter of Anar Devi v. Parmeshwari Devi, reported in (2006) 8 SCC 656 but the said judgment is also on different fact situation and does not relate to the birth right of the grand-son. He has further placed reliance upon the judgment of the Supreme court in the matter of Ranganayakamma v. K.S Prakash (D) by L.Rs, reported in AIR 2009 SC (Supp) 1218, wherein it has been held that when a son get property from his father, as soon as sons are born to him, a joint family is constituted, but in that judgment, it has not been held that son's son will have birth right. A further reliance has been placed on the judgment of the Division Bench of this Court in the matter of Vijay Goyal v. Madan Goyal, reported in 2007 (II) MPJR 303, but the said judgment relates to the son's right on the coparcenery property by birth but it does not relate to the right of grand-son.
15. Counsel for the appellant had further placed reliance upon the judgment of the Supreme Court in the matter of Rohit Chauhan v. Surinder Singh, reported in 2013 SAR (Civil) 785 and in the matter of M. Yogendra v. Leelamma N., reported in (2009) 15 SCC 184 wherein it is held that in partition if the ancestral property remains in the hands of a single person, it has to be treated as his separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is born subsequently, the property becomes a coparcenary property and son would acquire interest in that and becomes a coparcener. He has also placed reliance upon the judgment in the matter of Bhanwar Singh v. Puran, reported in (2008) 3 SCC 87, it has been held that the provision contained in Section 6 of the Act regarding the devolution of property in coparcenary property is not applicable when the surviving members of the coparcenary had already partitioned their properties and become owners to the extent of their share but the benefit of these judgments cannot be given to the appellant because in the present matter no partition had taken place between sons of Jagannath i.e respondents No. 1 to 4.
16. 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.
17. 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.
18. 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.
19. Thus, second appeal No. 206/2005 has no merit, which is accordingly dismissed.
Hindu Succession Act,