“1. Whether the plaintiff being the female had got the right to partition to the property solely belonged to Sukhdeo and devolved upon Janak Ram by survivorship after the demise of his father Sukhdeo?” 2. Whether the suit land inherited by late Janak Ram from his father Sukhdeo, the sole owner of the same became the ancestral property for the plaintiff on the date of death of Sukhdeo in 1965 and on the date of death of Janak Ram in 1982?” It has been pleaded in the plaint that three years after the death of Sukhdeo, a partition took place in which the suit properties had fallen to the share of Janak Ram. Once a partition of the coparcenary property takes place and the coparcener is put in exclusive possession of the property falling to his share to the exclusion of others he acquires an absolute right over the property. The plaintiff Radha Bai had a mere spes successionis and would have been entitled to a share by succession which would have opened only after the death of Janak Ram. In this view of the matter, since Janak Ram, prior to his death in 1982, had sold the suit lands to the defendants No.1to 3 by executing a registered sale deed, the plaintiff Radha Bai could question the same only on the limited ground of fraud or being without consideration. During life time of Janak Ram, Radha Bai, being the daughter of a predeceased son Saheblal, had merely a spes successionis to the suit property and nothing more. Apex :- During the life time of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the present case, the grounds urged by the appellant need to be rejected.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5889 OF 2009
Radha Bai ..…Appellant(s)
Versus
Ram Narayan & Ors. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.

  1. This appeal takes exception to the judgment and order
    dated 12th February, 2007 of the High Court of Chhattisgarh at
    Bilaspur (for short, ‘the High Court’) in Second Appeal No.84 of
    2002, whereby the appeal filed by the respondents­original
    defendant Nos. 1 to 4 was allowed and the judgment and decree
    passed by the Trial Court dismissing the suit filed by the
    appellant, came to be confirmed.
  2. The parties are related as under:
    2
  3. The appellant filed suit in the Court of Civil Judge, Class –
    First, Shakti – District Bilaspur being Civil Suit No.31/A of 1985
    asserting that the land situated in Village Barra, Tehsil Shakti,
    more particularly described in Schedule A of the plaint, was
    owned and possessed by Sukhdeo Chhannahu son of Sardha
    Chhannahu. Sukhdeo was a Hindu and governed by the
    Mitakshra Laws. The suit land came in the hands of Sukhdeo as
    ancestral property, in which Sukhdeo and his sons Janakram
    and Pilaram were having joint shares being coparceners. The
    appellant’s father Saheblal was the son of Janakram, who had
    3
    another son by name Sonu (original defendant No. 4, who has
    died during the pendency of the present appeal). The appellant’s
    father Saheblal predeceased Janakram (his father) and Sukhdeo
    (his grand­father). He died in 1957, whereas Janakram died in
    1982 and Sukhdeo, in 1965. Saheblal left behind Laxminbai, his
    wife and their daughter Radhabai (appellant/plaintiff). In this
    backdrop, the appellant asserted that she was entitled to a share
    in the suit property, claiming through her father Saheblal. The
    appellant’s mother had already expired in 1984 before filing of
    the suit in 1985.
  4. It is the case of the appellant that after the death of her
    mother, the appellant came to village Barra and requested the
    Patwari of the village to mutate the land in her name. In
    response, she was told that the land had already been mutated
    in the name of Ram Narayan (defendant No.1), Jaya Narayan
    (defendant No. 2) and Rohit Kumar (defendant No.3) ­ three sons
    of Sonu (deceased defendant No. 4), by virtue of the registered
    sale deed executed in their favour by Janakram on 21st July,
  5. It was further revealed that after the demise of Sukhdeo in
    1965, his two sons Janakram and Pilaram partitioned the suit
    4
    property in or around the year 1967, as a result of which, the
    suit property came to the exclusive share of Janakram and he
    had become absolute owner thereof, on the basis of which right,
    he executed registered sale deed in favour of his three grandsons
    (sons of his son Sonu (now deceased) ­ defendant Nos.1 to 3
    respectively).
  6. Immediately after becoming aware of the above, in 1985, the
    appellant instituted the suit for declaration and possession and
    sought the following reliefs:
    “14.): Prayer of the plaintiff is as under:­
    i): The court should award decree about the
    possession of the relevant disputed land to the
    plaintiff;
    I (a): By partitioning the disputed lands, half share be
    awarded to the plaintiff, and its land revenue
    should be determined separately.
    ii): The plaintiff may be awarded expenses of the
    suit.
    iii): Looking to the circumstances of the suit,
    whatsoever appropriate relief the court may
    consider it fit and just, the same may be
    awarded to the plaintiff.”
    5
  7. The respondents­defendants resisted the said suit. On the
    basis of the rival pleadings, the Trial Court framed as many as 9
    issues, which read thus:

“ISSUES: CONCLUSION:

(1.): Whether, after the death of Sukhdev, partition of
the joint & united property had been carried in
between Janakram & Pilaram. Yes.
(2.): Whether, the disputed land was received by
Janakram in the said partition. Not proved.
(3.): Whether, up to the year 1982, the disputed land
remained entered in joint & united
accounts of Janakram, Laxminbai and the plaintiff.}
Due to negative
conclusion of issue
No.2, detailed
appreciation has not
been done.
(4.): Whether, Janakram had no right to sale the
disputed property/land.
(5.): Whether, the sale deed dated 21st of July, 1997
is
illegal and void.
(6.): Whether, the plaintiff is entitled to obtain the
possession of the disputed lands.
(7.): Relief & Expenses. Suit is dismissed. The
rival parties shall bear their own expenses.
ADDITIONAL ISSUES:
6
(8.): Whether, the plaintiff is entitled to get half share
in the disputed lands. Not proved.
(9.): Whether, the suit of the plaintiff is not
maintainable. No. Its maintainable.”

  1. The Trial Court after analysing the evidence on record,
    proceeded to dismiss the suit preferred by the appellant vide
    judgement and decree dated 24th November, 2000.
  2. Being aggrieved, the appellant filed appeal being Civil
    Appeal No.5­A of 2001 in the Court of Additional District Judge,
    Shakti, District Bilaspur­Chhattisgarh. The Appellate Court,
    however, reversed the conclusion reached by the Trial Court and
    allowed the appeal vide judgment and decree dated 22nd January,
  3. The operative order passed by the First Appellate Court
    reads thus:
    “26.): On the basis of the abovementioned critical
    appreciation, decree may be drawn to the following
    effect:­
    i): That, resultant to acceptance of the appeal of
    the appellant, the impugned judgment and the decree
    dated 24th of November, 2000 is set aside.
    ii): That, resultant to acceptance of the appeal of the
    appellant, the suit of the plaintiff/appellant is
    accepted, and it is ordered that the plaintiff/appellant
    is entitled to obtain possession over the half share
    separately, by carrying out partition of half share of
    the disputed land, which has been enumerated in the
    7
    Schedule “A” annexed with the plaint; and accordingly
    land revenue to that effect should also be determined.
    iii): The Schedule “A” annexed with the plaint shall be
    integral part of the decree
    iv): The answering plaintiffs/respondents apart from
    bearing their own expenses of the case, shall also bear
    the expenses of the case of the plaintiff/appellant.
    v): Advocate’s fee, upon verification be payable in the
    decree at Rs.300/­ (Rupees Three hundred only).
    vi): Accordingly, decree may be drawn.”
  4. The respondents­original defendant Nos. 1 to 4 filed second
    appeal before the High Court, being Second Appeal No.84 of
  5. While admitting the second appeal, the Court formulated
    two questions as substantial questions of law. The same read
    thus:
    “1. Whether the plaintiff being the female had got the
    right to partition to the property solely belonged to
    Sukhdeo and devolved upon Janak Ram by
    survivorship after the demise of his father Sukhdeo?”
  6. Whether the suit land inherited by late Janak
    Ram from his father Sukhdeo, the sole owner of the
    same became the ancestral property for the plaintiff on
    the date of death of Sukhdeo in 1965 and on the date
    of death of Janak Ram in 1982?”
  7. After analysing the factual matrix and the evidence on
    record, the High Court opined that the Appellate Court
    8
    committed manifest error and misapplied the settled legal
    position. The High Court considered the matter in the following
    words:
    “8. The sole point which thus arises for determination
    in the Second Appeal is whether the suit property was
    held by Janak Ram in his own right to the exclusion of
    Pila Ram, and whether the rule of succession or the
    rule of survivorship shall apply. It has been pleaded in
    the plaint that three years after the death of Sukhdeo,
    a partition took place in which the suit properties had
    fallen to the share of Janak Ram. Once a partition of
    the coparcenary property takes place and the
    coparcener is put in exclusive possession of the
    property falling to his share to the exclusion of others
    he acquires an absolute right over the property. The
    plaintiff Radha Bai had a mere spes successionis and
    would have been entitled to a share by succession
    which would have opened only after the death of
    Janak Ram. In this view of the matter, since Janak
    Ram, prior to his death in 1982, had sold the suit
    lands to the defendants No.1to 3 by executing a
    registered sale deed, the plaintiff Radha Bai could
    question the same only on the limited ground of fraud
    or being without consideration. During life time of
    Janak Ram, Radha Bai, being the daughter of a
    predeceased son Saheblal, had merely a spes
    successionis to the suit property and nothing more.
    There is no material on record to show that the
    defendant No.4 – Sonu had got the sale deed dated
    21.7.1979 executed from Janak Ram perforce or
    without consideration. In this view of the matter,
    Janak Ram who, after partition, held the suit property
    to the exclusion of the other coparcener had an
    absolute right to sell it to the defendants no.1 to 3.
    Radha Bai, the plaintiff, having failed to prove that the
    sale deed was without consideration or was executed
    perforce could not challenge the said transaction on
    9
    any ground. The evidence led by Radha Bai itself
    shows that she had full knowledge of the sale deed
    executed by Janak Ram in favour of defendants No.1
    to 3. Radha bai, the plaintiff, did not enter the witness
    box despite present in Court and having been asked to
    do so. In this view of the matter, I am of the considered
    opinion that the suit filed by Radha Bai must fail
    because the rule of succession applied to the facts of
    the case and succession would have opened only after
    the death of Janak Ram, who was the exclusive owner
    of the share received by him in partition with Pilaram.
    The substantial question No.1 is thus answered in
    negative that Janak Ram being the exclusive owner of
    the suit property, during his life time Radha Bai had
    acquired no right to the suit properties and to file a
    suit for partition and possession of the suit lands
    which had already been sold by Janak Ram during his
    life time by executing a sale deed in favour of
    defendants No.1 to 3. Question No.2 is answered that
    after death of Sukhdeo, there was a partition of
    coparcenary property in which Janak Ram had
    received the suit lands as his share and was therefore,
    the absolute owner of the suit property. In this view of
    the matter, rule of survivorship does not apply to the
    facts of the present case, since suit property, after
    partition, was held by Janak Ram in his own right and
    to the exclusion of the other coparcener. Thus, the suit
    property had, after partition effected between Janak
    Ram and Pila Ram, ceased to be ancestral property
    and was held by Janak Ram as exclusive owner
    thereof. The rule of succession would thus apply to the
    present case and succession would have opened only
    after the death of Janak Ram. Therefore, Radha Bai,
    who had a mere spes successionis could succeed only
    by proving that the sale deed executed by Janak Ram
    was without consideration or was got executed by
    defendant no.4 – Sonu perforce. Having failed to do so,
    the suit must fail.
  8. Having answered both the substantial questions of
    law, the appeal deserves to be allowed. Accordingly,
    10
    the appeal is allowed. The judgment and decree dated
    22.1.2002 passed by Additional District Judge, Sakti,
    District Bilaspur in Civil Appeal No.5­A/2001 is set
    aside and the judgment and decree passed by Civil
    Judge, Class­II, Sakti dated 24.11.2000 in Civil Suit
    No.90­A/88 is affirmed. There shall be no order as to
    costs.”
  9. The appellant ­ plaintiff has assailed the aforesaid decision
    of the High Court on the ground that in the backdrop of the
    indisputable factual position and the decisions of this Court in
    Gurupad Khandappa Magdum Vs. Hirabai Khandappa
    Magdum and Others1 and Ramesh Verma (Dead) Through
    Legal Representatives Vs. Lajesh Saxena (Dead) By Legal
    Representatives and Another2
    , the High Court committed
    manifest error of law in holding that the rule of survivorship will
    not apply and plaintiff had a mere spes successionis. According
    to the appellant, the suit property was admittedly ancestral
    property in the hands of Sukhdeo. After coming into force of the
    Hindu Succession Act, 1956 (for short “the 1956 Act”) w.e.f. 17th
    June, 1956, as Saheblal had died after commencement of the
    1956 Act, Section 6 of the 1956 Act and in particular
    1 (1978) 3 SCC 383
    2 (2017) 1 SCC 257
    11
    Explanation­I thereof, was clearly attracted. As a result of which,
    the notional partition of the coparcenary property had taken
    place before the death of Saheblal. The proviso to Section 6 was
    also attracted since Saheblal left behind his wife Laxminbai and
    daughter Radhabai (appellant­plaintiff). Resultantly, the interest
    of deceased Saheblal in the Mitakashara coparcenary property
    stood devolved by succession under the 1956 Act and not by
    survivorship. The appellant­plaintiff being the sole surviving heir
    of Saheblal was claiming right in the entire share of Saheblal.
  10. It is next urged that the sale deed executed by Janakram in
    favour of respondents­defendant Nos.1 to 3 respectively, dated
    21st July, 1979, was ex facie illegal and not binding on the
    appellant­plaintiff. Janakram had no authority to sell the
    ancestral property, which had settled in the coparceners after the
    death of Sukhdeo. Similarly, the partition effected in 1967
    between Janakram and Pilaram, leaving out the branch of
    predeceased Saheblal, would be of no avail and cannot be the
    basis to dislodge the claim of the plaintiff in the suit property.The
    appellant prays that the judgment and decree passed by the First
    12
    Appellate Court, decreeing the suit in favour of the appellantplaintiff be upheld and restored.
  11. The respondents­defendants, on the other hand, would
    contend that in the present case, Saheblal died in 1957. The
    ancestral property was succeeded by two surviving sons of
    Sukhdeo ­ Janakram and Pilaram equally–when the succession
    had opened after the death of Sukhdeo in 1965. The appellantplaintiff was not an heir in Class – I at the relevant time. Had the
    appellant been daughter of predeceased son of Sukhdeo, she may
    have had some chance of pursuing her claim. However, the
    appellant being the great­grand daughter of Sukhdeo, had no
    claim in the suit property in 1965. In law, the father of the
    appellant ­ Saheblal, could not have succeeded to the property
    during the life time of his father Janakram. Whereas, on account
    of partition between Janakram and Pilaram after the demise of
    Sukhdeo, the suit property came to the exclusive share of
    Janakram and he had become absolute owner thereof. As
    Janakram held the suit property in his individual capacity and
    not on behalf of coparceners and family members, he could
    alienate the same as per his volition to any one, which he did in
    13
    favour of his grandsons (respondents­defendant Nos.1 to 3
    respectively) vide registered sale deed dated 21st July, 1979. In
    such a situation, it is settled law that the grand daughter cannot
    be treated as an heir so as to have a share in the suit property.
  12. To buttress the above noted submission, reliance is placed
    on the decision of the Madhya Pradesh High Court in the case of
    Chandrakanta and Others Vs. Ashok Kumar and Others3
    and two decisions of this Court in Hardeo Rai Vs. Sakuntala
    Devi and Others4
    and Commissioner of Wealth Tax, Kanpur
    and Others Vs. Chander Sen and Others5
    . Additional reference
    is made to the dictum in Yudhishter Vs. Ashok Kumar6 and
    Smt. Raj Rani Vs. Chief Settlement Commissioner, Delhi and
    Others7
    . It is urged that the High Court has not committed any
    error, much less a manifest error, warranting interference by this
    Court. Hence, it is urged that this appeal being devoid of merits,
    be dismissed.
    3 2002 (3) MPLJ 576
    4 (2008) 7 SCC 46
    5 (1986) 3 SCC 567
    6 (1987) 1 SCC 204
    7 (1984) 3 SCC 619
    14
  13. We have heard Mr. Sarabjit Dutta, learned counsel for the
    appellant and Mr. Manoj Prasad, learned Senior Counsel for the
    respondents.
  14. Before we proceed to analyse the rival submissions, it may
    be apposite to reproduce Section 6 of the 1956 Act as applicable
    at the relevant time. The same read thus:
    “6. 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.
    Explanation 1.—For the purposes of this section, the
    interest of a Hindu Mitakshara coparcener shall be
    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.
    Explanation 2.— Nothing contained in the proviso to
    the Section shall be construed as enabling a person
    who has separated himself from the coparcenary before
    the death of the deceased or any of his heirs to claim
    on intestacy a share in the interest referred to therein.”
  15. This Court has noted the incidents of co­parcenership
    under the Mitakshra Law, in the case of State Bank of India
    15
    Vs. Ghamandi Ram (Dead) Through Gurbax Rai8
    . In
    paragraph 5 of the reported decision, the Court observed thus:
    “5. According to the Mitakshara School of Hindu Law
    all the property of a Hindu joint family is held in
    collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the
    Mitakshara lays down in express terms that the joint
    family property is held in trust for the joint family
    members then living and thereafter to be born (see
    Mitakshara, Chapter I, 1­27). The incidents of coparcenership under the Mitakshara law are: first,
    the lineal male descendants of a person up to the
    third generation, acquire on birth ownership in the
    ancestral properties of such person; secondly, that
    such descendants can at any time work out their
    rights by asking for partition; thirdly, that till
    partition each member has got ownership
    extending over the entire property, conjointly with
    the rest; fourthly, that as a result of such coownership the possession and enjoyment of the
    properties is common; fifthly, that no alienation of
    the property is possible unless it be for necessity,
    without the concurrence of the coparceners, and
    sixthly, that the interest of a deceased member
    lapses on his death to the survivors. A coparcenary
    under the Mitakshara School is a creature of law
    and cannot arise by act of parties except in so far
    that on adoption the adopted son becomes a coparcener with his adoptive father as regards the
    ancestral properties of the latter.”
    (emphasis supplied)
    This exposition has been taken note of in Hardeo Rai (supra).
    After noticing this exposition, the Court went on to observe in
    paragraph Nos.20 to 23 as follows:
    8 (1969) 2 SCC 33
    16
    “20. The first appellate court did not arrive at a
    conclusion that the appellant was a member of a
    Mitakshara coparcenary. The source of the property
    was not disclosed. The manner in which the properties
    were being possessed by the appellant vis­à­vis the
    other co­owners had not been taken into
    consideration. It was not held that the parties were
    joint in kitchen or mess. No other documentary or oral
    evidence was brought on record to show that the
    parties were in joint possession of the properties.
  16. One of the witnesses examined on behalf of the
    appellant admitted that the appellant had been in
    separate possession of the suit property. The appellant
    also in his deposition accepted that he and his other
    co­sharers were in separate possession of the property.
  17. For the purpose of assigning one’s interest in the
    property, it was not necessary that partition by metes
    and bounds amongst the coparceners must take place.
    When an intention is expressed to partition the
    coparcenary property, the share of each of the
    coparceners becomes clear and ascertainable. Once
    the share of a coparcener is determined, it ceases to be
    a coparcenary property. The parties in such an event
    would not possess the property as “joint tenants” but
    as “tenants­in­common”. The decision of this Court in
    SBI1, therefore, is not applicable to the present case.
  18. Where a coparcener takes definite share in the
    property, he is owner of that share and as such he can
    alienate the same by sale or mortgage in the same
    manner as he can dispose of his separate property.”
    In the case of Chander Sen (supra), this Court considered the
    interplay between Sections 4, 6 and 8 of the 1956 Act including
    Chapter II and heirs in Class­I of the Schedule. The Court noted
    as follows:
    17
    “10. The question here, is, whether the income or asset
    which a son inherits from his father when separated
    by partition the same should be assessed as income of
    the Hindu undivided family of son or his individual
    income. There is no dispute among the commentators
    on Hindu law nor in the decisions of the court that
    under the Hindu law as it is, the son would inherit the
    same as karta of his own family. But the question is,
    what is the effect of Section 8 of the Hindu Succession
    Act, 1956? The Hindu Succession Act, 1956 lays down
    the general 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 and Class I of the Schedule
    provides that if there is a male heir of Class I then
    upon the heirs mentioned in Class I of the Schedule.
    Class I of the Schedule reads as follows:
    “Son; daughter; widow; mother; son of a
    predeceased son; daughter of a
    predeceased son; son of a predeceased
    daughter; daughter of a predeceased
    daughter; widow of a predeceased son; son
    of a predeceased son of a predeceased son;
    daughter of a predeceased son of a
    predeceased son; widow of a predeceased
    son of a predeceased son.”
  19. The heirs mentioned in Class I of the Schedule
    are son, daughter etc. including the son of a
    predeceased son but does not include specifically
    the grandson, being, a son of a son living. Therefore,
    the short question, is, when the son as heir of Class I
    of the Schedule inherits the property, does he do so in
    his individual capacity or does he do so as karta of his
    own undivided family?
  20. Now the Allahabad High Court has noted that the
    case of CIT v. Ram Rakshpal, Ashok Kumar after
    referring to the relevant authorities and commentators
    had observed at p. 171 of the said report that there
    was no scope for consideration of a wide and general
    nature about the objects attempted to be achieved by a
    piece of legislation when interpreting the clear words of
    the enactment. The learned judges observed, referring
    18
    to the observations of Mulla’s Commentary on Hindu
    Law and the provisions of Section 6 of the Hindu
    Succession Act, that in the case of assets of the
    business left by father in the hands of his son will be
    governed by Section 8 of the Act and he would take in
    his individual capacity. In this connection reference
    was also made before us to Section 4 of the Hindu
    Succession Act. Section 4 of the said Act provides for
    overriding effect of Act. Save as otherwise expressly
    provided in the Act, 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 this
    Act shall cease to have effect with respect to any
    matter for which provision is made in the Act and any
    other law in force immediately before the
    commencement of the Act shall cease to apply to
    Hindus insofar it is inconsistent with any of the
    provisions contained in the Act. Section 6 deals with
    devolution of interest in coparcenary property and
    it makes it clear 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. The proviso indicates 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 Mitakshara coparcenary property shall devolve
    by testamentary or intestate succession, as the
    case may be, under this Act and not by
    survivorship.”
    (emphasis supplied)
    Again in paragraph 15:
    “15. 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
    19
    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 Hindu 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 includes the son but
    not the grandson. It includes, however, the son of the
    predeceased son. It is this position which has mainly
    induced the Allahabad High Court in the two
    judgments, we have noticed, to take the view that the
    income from the assets inherited by 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.”
    After considering the divergent views expressed by the Allahabad
    High Court, Full Bench of the Madras High Court, Madhya
    Pradesh and Andhra Pradesh High Courts on one side and the
    Gujarat High Court on the other, it proceeded to opine as follows:
    “21. It is necessary to bear in mind the preamble to
    the Hindu Succession Act, 1956. The preamble states
    that it was an Act to amend and codify the law relating
    to intestate succession among Hindus.
  21. In view of the preamble to the Act i.e. that to
    modify where necessary and to codify the law, in our
    opinion it is not possible when Schedule indicates
    heirs in Class I and only includes son and does not
    include son’s son but does include son of a
    predeceased son, to say that when son inherits the
    property in the situation contemplated by Section 8 he
    takes it as karta of his own undivided family. The
    20
    Gujarat High Court’s view noted above, if accepted,
    would mean that though the son of a predeceased
    son and not the son of a son who is intended to be
    excluded under Section 8 to inherit, the latter
    would by applying the old Hindu law get a right by
    birth of the said property contrary to the scheme
    outlined in Section 8. Furthermore, as noted by the
    Andhra Pradesh High Court that the Act makes it clear
    by Section 4 that one should look to the Act in case of
    doubt and not to the pre­existing Hindu law. It would
    be difficult to hold today that the property which
    devolved on a Hindu under Section 8 of the Hindu
    Succession Act would be HUF in his hand vis­à­vis his
    own son; that would amount to creating two classes
    among the heirs mentioned in Class I, the male heirs
    in whose hands it will be joint Hindu family property
    vis­à­vis son and female heirs with respect to whom no
    such concept could be applied or contemplated. It
    may be mentioned that heirs in Class I of Schedule
    under Section 8 of the Act included widow, mother,
    daughter of predeceased son etc.
  22. Before we conclude we may state that we have
    noted the observations of Mulla’s Commentary on
    Hindu Law, 15th Edn. dealing with Section 6 of the
    Hindu Succession Act at pp. 924­26 as well as
    Mayne’s on Hindu Law, 12th Edn., pp. 918­19.
  23. The express words of Section 8 of the Hindu
    Succession Act, 1956 cannot be ignored and must
    prevail. The preamble to the Act reiterates that the Act
    is, inter alia, to “amend” the law, with that background
    the express language which excludes son’s son but
    includes son of a predeceased son cannot be ignored.”
    (emphasis supplied)
    This decision has been quoted with approval in Yudhishter
    (supra). In paragraph 10 of the said decision, the Court observed
    thus:
    21
    “10. This question has been considered by this Court
    in CWT v. Chander Sen where one of us (Sabyasachi
    Mukharji, J.) observed that under the Hindu law, the
    moment a son is born, he gets a share in 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. This Court observed that this position
    has been affected by Section 8 of the Hindu
    Succession Act, 1956 and, therefore, after the Act,
    when the son inherited the property in the situation
    contemplated by Section 8, he does not take it as karta
    of his own undivided family but takes it in his
    individual capacity. At p. 577 to 578 of the Report, this
    Court dealt with the effect of Section 6 of the Hindu
    Succession Act, 1956 and the commentary made by
    Mulla, 15th Edn., pp. 924­26 as well as Mayne’s
    Hindu Law, 12th Edn. pp. 918­19. Shri Banerji relied
    on the said observations of Mayne on Hindu Law, 12th
    Edn., at p. 918­19. 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 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., p. 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 vis­à­vis 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.”
    22
  24. The respondents have also invited our attention to the
    decision of Madhya Pradesh High Court in Chandrakanta
    (supra), which had followed the aforementioned dictum to reject
    the claim of the plaintiffs on the ground that so long as their
    father was alive, they cannot claim any right.
  25. Reverting to the factual matrix of the present case, it is
    noticed that Sukhdeo had inherited ancestral property and was
    alive till 1965. The father of appellant, Saheblal, predeceased him
    in 1957. Saheblal was the son of Janakram. Janakram died in
  26. During the life time of Janakram, in terms of Section 6 of
    the 1956 Act, Saheblal could not have succeeded to the property
    as he could claim only through Janakram. Janakram, however,
    was alive till 1982. If Saheblal himself had no claim in his own
    rights, the question of appellant, being his daughter, succeeding
    to the property does not arise.
  27. The consistent view of this Court, including of three Judge
    Bench, is that the grand son or grand daughter is clearly
    excluded from heirs in Class­I. Saheblal himself was grand son
    of Sukhdeo, who predeceased Sukhdeo. After the demise of
    Sukhdeo in 1965, therefore, the ancestral suit property could be
    23
    and came to be partitioned between Janakram and Pilaram in
  28. As a result of that partition, the suit property came to the
    exclusive share of Janakram in his individual capacity. He could,
    therefore, legitimately dispose of the same in the manner he
    desired and which he did in favour of his grandsons (defendant
    Nos.1 to 3 respectively) vide registered sale deed dated 21st July,
  29. Neither the stated partition of 1967 nor the registered sale
    deed in favour of respondents (defendant Nos.1 to 3) dated 21st
    July, 1979 has been challenged. The relief sought in the suit as
    filed by the appellant/plaintiff is only for partition and awarding
    share to the appellant/plaintiff alongwith possession. Suffice it to
    observe that, the grand­daughter of Janakram (appellant herein)
    could not have claimed a higher right than the right of her father
    Saheblal.
  30. Reliance placed by the appellant on the decision of this
    Court in Gurupad Khandappa Magdum (supra), is inapposite.
    In that case, the plaintiff, being heir in Class­I, claimed to have
    share in the interest of her husband which he had at the time of
    his death in the coparcenary property. In that view of the matter,
    in terms of proviso to Section 6 of the 1956 Act, the interest of
    her husband in the coparcenary property would devolve by
    24
    succession under the 1956 Act. Similarly, in the case of Raj
    Rani (supra), the Court was called upon to consider the dispute
    between the widow, three sons and three daughters of the
    deceased who being heirs in Class­I had succeeded to interest in
    equal shares, as the property in question was Mitakshara
    coparcenary property, by virtue of Explanation­I of Section 6 of
    the 1956 Act. That analysis can be discerned from paragraph 17
    of the reported judgment. Even the recent decision of this Court
    in Ramesh Verma (supra), does not take the matter any further
    for the appellant. Inasmuch as, even in that case, the dispute
    was between the concerned heirs in Class­I after the demise of
    Bhagwan Das. Before commencement of the 1956 Act, the
    notional partition had taken place and as per Section 82 of the
    Madhya Bharat Land Code, his sons and wife became entitled to
    get 1/3 share in the property. On partition, share had fallen to
    one of the sons which became his separate property and no
    longer remained a Mitakshara property. This factual position
    could be discerned from paragraph 11 of the reported judgment.
  31. A priori, we uphold the view taken by the High Court that
    after the death of Sukhdeo in 1965, the property devolved upon
    25
    his two sons Janakram and Pilaram. They succeeded to the
    ancestral property equally. They later effected partition in 1967,
    as a result of which, the property came to the exclusive share of
    Janakram. The father of appellant, Saheblal, had predeceased
    his father Janakram and even his grandfather Sukhdeo. During
    the life time of Janakram, Saheblal could not have succeeded to
    the property and for the same reason, the appellant being his
    daughter cannot be heard to claim any right higher than that of
    Saheblal. Applying the settled legal position to the present case,
    the grounds urged by the appellant need to be rejected.
  32. Accordingly, this appeal must fail. Hence, the same is
    dismissed with no order as to costs.
  33. All pending applications are also disposed of in the above
    terms.
    …………………………..J
    (A.M. Khanwilkar)
    …………………………..J
    (Dinesh Maheshwari)
    New Delhi;
    November 22, 2019.