Civil Appeal Nos
166870 of 1974 etc
From the Judgment and order dated 1781973 of the Allahabad High Court in WT Reference No 371 of 1971 and IT Reference No 452 of 1971
VS Desai and Miss A Subhashini for the Appellants
PK Mukharjee and A K Sengupta for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These appeals arise by special leave from the decision of the High Court of Allahabad dated 17th August 1973
Two of these appeals are in respect of assessment years 1966 67 and 1967 68 arising out of the proceedings under the Wealth Tax Act 1957
The connected reference was under the Income Tax Act 1961 and related to the assessment year 1968 69
A common question of law arose in all these cases and these were disposed of by the High Court by a common judgment
One Rangi Lal and his son Chander Sen constituted a Hindu 258 undivided family
This family had some immovable property and the business carried on in the name of Khushi Ram Rangi Lal
On October 10 1961 there was a partial partition in the family by which the business was divided between the father and the son and thereafter it was carried on by a partnership consisting of the two
The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their share of income
The house property of the family continued to remain joint
On July 17 1965 Rangi Lal died leaving behind his son Chander Sen and his grandsons ie the sons of Chander Sen
His wife and mother predeceased him and he had no other issue except Chander Sen
On his death there was a credit balance of Rs185043 in his account in the books of the firm
For the assessment year 1966 67 valuation date October 3 1965 Chander Sen who constituted a joint family with his own sons filed a return of his net wealth
The return included the property of the family which on the death of Rangi Lal passed on to Chander Sen by survivorship and also the assets of the business which devolved upon Chander Sen on the death of his father
The sum of Rs185043 standing to the credit of Rangi Lal was not included in the net wealth of the family of Chander Sen hereinafter referred to as the assessee family  on the ground that this amount devolved on Chander Sen in his individual capacity and was not the property of the assessee family
The Wealth tax officer did not accept this contention and held that the sum of Rs185043 also belonged to the assessee family
At the close of the previous year ending on October 22 1962 relating to the assessment year 1967 68 a sum of Rs23330 was credited to the account of late Rangi Lal on account of interest accruing on his credit balance
In the proceedings under the Income tax Act for the assessment year 1967 68 the sum of RS 23330 was claimed as deduction
It was alleged that interest was due to Chander Sen in his individual capacity and was an allowable deduction in the computation of the business income of the assessee faimly
At the end of the year the credit balance in the account of Rangi Lal stood at Rs182742 which was transferred to the account of Chander Sen
In the wealth tax assessment for the assessment year 1967 68 it was claimed as in the earlier year that the credit balance in the account of Rangi Lal belonged to Chander Sen in his individual capacity and not to the assessee family
The Income tax officer who completed the assessment disallowed the claim relating to interest on the ground that it was a payment made by Chander Sen to himself
Likewise in the wealth tax assessment the sum of Rs182742 was included by the Wealth tax officer in the net wealth of the assessee family
On appeal the Appellate Assistant Commissioner of Income tax accepted the assessee s claim in 259 full
He held that the capital in the name of Rangi Lalluded in the wealth of the assessee family
He also directed that in the income tax assessment the sum of Rs23330 on account of interest should be allowed as deduction
The revenue felt aggrieved and filed three appeals before the Income tax Appellate Tribunal two against the assessments under the Wealth tax Act for the assessment years 1966 67 and 1967 68 and one against the assessment under Income tax Act for the assessment year 1967 68
The Tribunal dismissed the revenue s appeals
The following question was referred to the High Court for its opinion Whether on the facts and in the circumstances of the case the conclusion of the Tribunal that the sum of Rs185043 and Rs182742 did not constitute the assets of the assessee Hindu undivided family is correct Similarly in the reference under the Income tax Act the following question was referred Whether on the facts and in the circumstances of the case the interest of Rs23330 is allowable deduction in the computation of the business profits of the assessee joint family The answer to the questions would depend upon whether the amount standing to the credit of late Rangi Lal was inherited after his death by Chander Sen in his individual capacity or as a Karta of the assessee joint family consisting of himself and his sons
The amount in question represented the capital allotted to Rangi Lal on partial partition and accumulated profits earned by him as his share in the firm
While Rangi Lal was alive this amount could not be said to belong to any joint Hindu family and qua Chander Sen and his sons it was the separate property of Rangi Lal
On Rangi Lal s death the amount passed on to his son Chander Sen by inheritance
The High Court was of the opinion that under the Hindu Law when a son inherited separate and self acquired property of his father it assumed the character of joint Hindu family property in his hands qua the members of his own family
But the High Court found that this principle has been modified by section 8 of the 
260 Section 8 of the said Act provides inter alia that the property of a male Hindu dying intestate devolved according to the provisions of that Chapter in the Act and indicates further that it will devolve first upon the heirs being the relatives specified in class I of the Schedule
Heirs in the Schedule Class I includes and provides firstly son and thereafter daughter widow and others
It is not necessary in view of the facts of this case to deal with other clauses indicated in section 8 or other heirs mentioned in the Schedule
In this case as the High Court noted that the son Chander Sen was the only heir and therefore the property was to pass to him only
The High Court in the judgment under appeal relied on a bench decision of the said High Court rendered previously
Inadvertently in the judgment of the High Court it had been mentioned that the judgment was in Khudi Ram Laha vs Commissioner of Income tax UP but that was a case which dealt with entirely different problem
The decision which the High Court had in mind and on which in fact the High Court relied was a decision in the case of Commissioner of Income tax U P vs Ram Rakshpal Ashok Kumar In the said decision the Allahabad High Court held that in view of the provisions of the  the income from assets inherited by a son from his father from whom he had separated by partition could not be assesssed as the income of the Hindu undivided family of the son
The High Court relied on the commentary in Mulla s Hindu Law Thirteenth Edition page 248
The High Court also referred to certain passages from Dr Derret s Introduction to Modern Hindu Law paragraph 411 at page 252
Reliance was also placed on certain observations of this Court and the Privy Council as well as on Mayne s Hindu Law 
After discussing all these aspects the Court came to the conclusion that the position of the Hindu Law was that partition took away by way of coparcenary the character of coparcener property which meant that the share of another coparcener upon the divisions although the property obtained by a coparcener by a partition continued to be coparcenary property for him and his unseparated issue
In that case what had happened was one Ram Rakshpal and his father Durga Prasad constituted a Hindu undivided family which was assessed as such
Ram Rakshpal separated from his father by partition on October 11 1948
Thereafter Ram Rakshpal started business of his own income whereof was assessed in the hands of the assessee family
Shri Durga Prasad also started business of his own after partition in the name and style of Ms Murlidhar Mathura Prasad which was carried on by him till his death
261 Durga Prasad died on March 29 1958 leaving behind him his widow Jai Devi his married daughter Vidya Wati and Ram Rakshpal and Ram Rakshpal s son Ashok Kumar as his survivors
The assets left behind by Durga Prasad devolved upon three of them in equal shares by succession under the 
Vidya Wati took away her 13rd share while Jai Devi and Shri Ram Rakshpal continued the aforesaid business inherited by them in partnership with effect from April 1 1958 under a partnership deed dated April 23 1958
The said firm was granted registration for the assessment year 1958 59
The share of profit of Shri Ram Rakshpal for the assessment year under reference was determined at Rs4210
The assessee family contended before the Income tax Officer that this profit was the personal income of Ram Rakshpal and could not be taxed in the hands of the Hindu undivided family of Ram Rakshpal and held that Ram Rakshpal contributed his ancestral funds in the partnership business of Murli Dhar Mathura Prasad and that hence the income therefrom was taxable in the hands of the assessee family
The High Court finally held on these facts in CIT vs Ram Rakshpal supra that the assets of the business left by Durga Prasad in the hands of Ram Rakshpal would be governed by section 8 of the 
The High Court in the Judgment under appeal was of the opinion that the facts of this case were identical with the facts in the case of Commissioner of Income tax UP supra and the principles applicable would be the same
The High Court accordingly answered the question in the affirmative and in favour of the assessee so far as assessment of wealth tax is concerned
The High Court also answered necessarily the question on the income tax Reference affirmatively and in favour of the assessee
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  The 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 262 the Schedule
Class I of the Schedule reads as follows Son daughter widow mother son of a pre deceased son daugther of a predeceased son son of a pre deceased daughter daughter of a pre deceased daughter widow of a pre deceased son son of a pre deceased son of a pre deceased son daughter of a pre deceased son of a pre deceased son widow of a pre deceased son of a pre deceased son
 The heirs mentioned in class I of the Schedule are son daughter etc
including the son of a pre deceased 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 Now the Allahabad High Court has noted that the case of Commissioner of Income tax UP vs Ram Rakshpal Ashok Kumar supra after referring to the relevant authorities and commentators had observed at page 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 to the observations of Mulla s Commentary on Hindu Law and the provisions of section 6 of the 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 
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 in so far 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 263 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
Section 19 of the said Act deals with the mode of succession of two or more heirs
If two or more heirs succeed together to the property of an intestate they shall take the property per capita and not per stripes and as tenants in common and not as joint tenants
Section 30 stipulates that any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the 
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 comparcenary
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 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 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 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
In Commissioner of Income tax Gujarat I vs Dr Babubhai Mansukhbhai Deceased the Gujarat High Court held that in the case of Hindus governed by the Mitakshara law where a son 264 inherited the self acquired property of his father the son took it as the joint family property of himself and his son and not as his separate property
The correct status for the assessment to income tax of the son in respect of such property was as representing his Hindu undivided family
The Gujarat High Court could not accept the view of the Allahabad High Court mentioned hereinbefore
The Gujarat High Court dealt with the relevant provisions of the Act including section 6 and referred to Mulla s Commentary and some other decisions
Before we consider this question further it will be necessary to refer to the view of the Madras High Court
Before the full bench of Madras High Court in Additional Commissioner of Income tax Madras vs PL Karappan Chettiar  this question arose
There on a partition effected on March 22 1954 in the Hindu undivided family consisting of P his wife their sons K and their daughter in law P was allotted certain properties as and for this share and got separated
The partition was accepted by the revenue under section 25A of the Indian Income tax Act 1922
K along with his wife and their subsequently born children constituted a Hindu undivided family which was being assessed in that status
P died on September 9 1963 leaving behind his widow and divided son K who was the karta of his Hindu undivided family as his legal heirs and under section 8 of the Hindu Seccession Act 1956 the Madras High Court held that these two persons succeeded to the properties left by the deceased P and divided the properties among themselves
In the assessment made on the Hindu undivided family of which K was the karta for the assessment year 1966 67 to 1970 71 the Income tax Officer included for assessment the income received from the properties inherited by K from his father P The inclusion was confirmed by the Appellate Assistant Commissioner but on further appeal the Tribunal held that the properties did not form part of the joint family properties and hence the income therefrom could not be assessed in the hands of the family
On a reference to the High Court at the instance of the revenue it was held by the Full bench that under the Hindu law the property of a male Hindu devolved on his death on his sons and grandsons as the grandsons also have an interest in the property
However by reason of section 8 of the  the son s son gets excluded and the son alone inherits the property to the exclusion of his son
No interest would accrue to the grandson of P in the property left by him on his death
As the effect of section 8 was directly derogatory of the law established according to Hindu law the statutory provision must prevail in view of the unequivocal intention in the statute itself 265 expressed in section 41 which says that to the extent to which provisions have been made in the Act those provisions shall override the established provisions in the texts of Hindu law
Accordingly in that case K alone took the properties obtained by his father P in the partition between them and irrespective of the question as to whether it was ancestral property in the hands of K or not he would exclude his son
Further since the existing grandson at the time of the death of the grandfather had been excluded an after born son of the son will also not get any interest which the son inherited from the father
In respect of the property obtained by K on the death of his father it is not possible to visualise or envisage any Hindu undivided family
The High Court held that the Tribunal was therefore correct in holding that the properties inherited by K from his divided father constituted his separate and individual properties and not the properties of the joint family consisting of himself his wife sons and daughters and hence the income therefrom was not assessable in the hands of the assessee Hindu undivided family
This view is in consonance with the view of the Allahabad High Court noted above
The Madhya Pradesh High Court had occasion to consider this aspect in Shrivallabhdas Modani vs Commissioner of Income Tax MP I  and the Court held that if there was no coparcenary subsisting between a Hindu and his sons at the time of death of his father property received by him on his father s death could not be so blended with the property which had been allotted to his sons on a partition effected prior to the death of the father
Section 4 of the  clearly laid down that save as 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 the Act should cease to have effect with respect to any matter for which provision was made in the Act
Section 8 of the as noted before laid down the scheme of succession to the property of a Hindu dying intestate
The schedule classified the heirs on whom such property should devolve
Those specified in class I took simultaneously to the exclusion of all other heirs
A son s son was not mentioned as an heir under class I of the schedule and therefore he could not get any right in the property of his grandfather under the provision
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 by the Act and therefore the earlier interpretation of Hindu law giving a right by birth in such property ceased to have effect
The Court 266 further observed that in construing a Codification Act the law which was in a force earlier should be ignored and the construction should be confined to the language used in the new Act
The High Court felt that so construed section 8 of the should be taken as a self contained provision lying down the scheme of devolution of the property of a Hindu dying intestate
Therefore the property which devolved on a Hindu on the death of his father intestate after the coming into force of the  did not constitute HUF property consisting of his own branch including his sons
It followed the full bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal
The Andhra Pradesh High Court in the case of Commissioner of Wealth Tax AP II vs Mukundgirji  had also to consider the aspect
It held that a perusal of the would disclose that Parliament wanted to make a clean break from the old Hindu law in certain respects consistent with modern and egalitarian concepts
For the sake of removal of any doubts therefore section 41a was inserted
The High Court was of the opinion that it would therefore not be consistent with the spirit and object of the enactment to strain provisions of the Act to accord with the prior notions and concepts of Hindu law
That such a course was not possible was made clear by the inclusion of females in class I of the Schedule and according to the Andhra Pradesh High Court to hold that the property which devolved upon a Hindu under section 8 of the Act would be HUF property in his hands vis a vis his own sons would amount to creating two classes among the heirs mentioned in class I viz the male heirs in whose hands it would be joint family property vis a vis their sons and female heirs with respect to whom no such concept could be applied or contemplated
The intention to depart from the pre existing Hindu law was again made clear by section 19 of the which stated that two or more heirs succeed together to the property of an intestate they should take the property as tenants in common and not as joint tenants and according to the Hindu law as obtained prior to two or more sons succeeding to their father s property took a joint tenants and not tenants in common
The Act however has chosen to provide expressly that they should take as tentants in common
Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under section 8 constituted the absolute properties and his sons have no right by birth in such properties
This decision however 267 is under appeal by certificate to this Court
The aforesaid reasoning of the High Court appearing at pages 23 to 26 of Justice Reddy s view in 144 ITR appears to be convincing
We have noted the divergent views expressed on this aspect 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 is necessary to bear in mind the Preamble to the 
The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus
In view of the preamble to the Act ie 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 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 pre existing Hindu law
It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis a vis 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 and vis a vis 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
Before we conclude we may state that we have noted the obervations of Mulla s Commentary on Hindu law 15th Edn
dealing with section 6 of the at page 924 26 as well as Mayne s on Hindu Law 12th Edition pages 918 919
The express words of section 8 of The  268 1956 cannot be ingorned 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 included son of a predeceased son cannot be ignored
In the aforesaid light the views expressed by the Allahabad High Court the Madras High Court Madhya Pradesh High Court and the Andhra Pradesh High Court appear to us to be correct
With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore
In the premises the judgment and order of the Allahabad High Court under appeal is affirmed and the appeals Nos
1668 1669 of 1974 are dismissed with costs
Accordingly Appeal No 1670 of 1974 in Income tax Reference which must follow as a consequence in view of the findings that the sums standing to the credit of Rangi Lal belongs to Chander Sen in his individual capacity and not the joint Hindu family the interest of Rs 23330 was an allowable deduction in respect of the income of the family from the business
This appeal also fails and is dismissed with costs
The Special Leave Petition No 5327 of 1978 must also fail and is dismissed
There will be no order as to costs of this
APJ Appeals and Petition dismissed


Summary:
Rangi Lal and his son Chander Sen constituted a Hindu undivided family
They had some immovable property and the family business
By a partial partition the HUF business was divided between the two and thereafter it was carried on by a partnership consisting of the two
The house property of the family continued to remain joint
The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their share of income
The mother and wife of Rangi Lal having pre deceased him when he died he left behind him his only son Chander Sen and his grandsons
On his death there was a credit balance of Rs185043 in his account in the books of the firm
In the wealth tax assessment for the assessment year 1966 67 Chander Sen who constituted a joint family with his own sons filed a return of his net wealth by including the property of the family which u on the death of Rangi Lal passed on to him by survivorship and also the assets of the business which devolved upon him on the death of his father
The sum of RS l 850 13 standing to the credit of Rangi Lal was however not included in the net wealth of the assessee family
Similarly in the wealth tax assessment for the assessment year 1967 68 a sum of Rs182742 was not included in the net wealth of the assessee family
It was contended that these amounts devolved on Chander Sen 255 in his individual capacity and were not the property of the assessee family
The Wealth tax officer did not accept this contention and held that these sums also belonged to the assessee family
A sum of Rs23330 was also credited to the account of late Rangi Lal on account of interest accruing on his credit balance
In the proceedings under the Income Tax Act for the assessment year 1367 68 this sum was claimed as deduction on the same ground
The Income tax officer disallowed the claim on the ground that it was a payment made by Chander Sen to himself
On appeal the Appellate Assistant Commissioner of Income tax accepted the assessee s claim in full and held that the capital in the name of Rangi Lal devolved on Chander Sen in his individual capacity and as such was not to be included in the wealth of the assessee family
The sum of Rs23330 on account of interest was also directed to be allowed as deduction
The Income tax Appellate Tribunal dismissed the appeals filed by the Revenue and its orders were affirmed by the High Court
On the question Whether the income or asset which a son inherits from his father when separated by partition should be assessed as income of the Hindu Undivided Family consisting of his own branch including his sons or his individual income dismissing the appeals and Special Leave Petition of the Revenue the Court  HELD 1
The sums standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family
The interest of Rs23330 was an allowable deduction in respect of the income of the family from the business
268C D 21 Under section 8 of the  the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family
Section 8 lays down the scheme of succession to the property of a Hindu dying intestate
The Schedule classified the heirs on whom such property should devolve
Those specified in class I took simultaneously to the exclusion of all other heirs
A son s son was not mentioned as an heir under class I of the Schedule and therefore he could not get any right in the property of his grandfather under the provision
265F G 256 22 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 by the Act and therefore the earlier interpretation of Hindu law giving a right by birth in such property ceased to have effect
So construed 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
Therefore the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act 1356 did not constitute HUF property consisting of his own branch including his sons
265G H 266A C 23 The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus
Therefore it is not possible when the 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
267C D 24 The Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre existing Hindu law
It would be difficult to hold today that the property which devolved on a Hindu under section X of the Act would be HUF in his hand vis a vis 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 and vis a vis sons and female heirs with respect to whom no such concept could be applied or contemplated
267E G 25 Under the Hindu law the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property
However by reason of section 8 of the Act the son s son gets excluded and the son alone inherits the properly to the exclusion of his son
As the effect of section 8 was directly derogatory of the law established according to Hindu law the statutory provisions must prevail in view of the unequivocal intention in the statute itself expressed in section 41 which says that to the extent to which provisions have been made in the Act those provisions shall override the established provisions in the texts of Hindu Law
264G H 265A B 26 The intention to depart from the pre existing Hindu law was again made clear by section 19 of the Hindu Succession Act which stated that 257 if two or more heirs succeed together to the property of an intestate they should take the property as tenants in common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father s property took a joint tenants and not tenants in common
The Act however has chosen to provide expressly that they should take as tenants in common
Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under section 8 constituted the absolute properties and his sons have no right by birth in such properties
266F H Commissioner of Income tax U P vs Ram Rakshpal Ashok Kumar  Additional Commissioner of Income tax Madras vs PL Karuppan Chettiar 114 ITR 523 Shrivallabhdas Modani vs Commissioner of Income Tax MP I and Commissioner of Wealth Tax AP II vs Mukundgirji  approved
Commissioner of Income tax Gujarat l vs Dr Babubhai Mansukhbai Deceased  overruled