S.B.C.Rev. PETITION NO.188/2009 Madan gopal & Ors. Sagar & Ors. DATE OF ORDER : 26/10/2009 1/4 S.B.CIVIL REVISION PETITION NO.188/2009 (Madan gopal & Ors. Sagar & Ors.) DATE OF ORDER : 26/10/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.S.C.Maloo, for the petitioners. Mr.Rakesh Kalla, for the respondents. This petition is directed against the order dated 4/5/2009, whereby, the learned trial court in the partition suit decided the preliminary issues. Learned counsel for the petitioner-defendant submits that the plaintiff, the grandson had no cause of action to file the said suit so long as his father, defendant no.2 Shri Satya Narain and his mother Smt. Santosh are alive. He submits that Section 8 of the Hindu Succession Act, 1956 read with Schedule 1 to the said Act excludes son of a son in respect of the ancestral property and, therefore, no cause of action could arise to the grandson – plaintiff to claim such partition in the Joint Hindu Family property. He relies upon the decision of Supreme Court in the case of Bhanwar Singh vs. Puran & Ors. - 2008(1) WLC 494 (SC) and Anar Devi & Ors. vs. S.B.C.Rev. PETITION NO.188/2009 Madan gopal & Ors. Sagar & Ors. DATE OF ORDER : 26/10/2009 2/4 Parmeshwari Devi & Ors. - 2006 (2) WLC 787 (SC). It would be relevant to produce para no.14 of the said judgment in the case of Bhanwar Singh vs. Puran as under:- “14.Interpretation of Section 8 of the Hindu Succession Act came up for consideration before this Court in Commissioner of Weath Tax, Kanpur & Ors. v. Chander Sen & Ors. [ (1986 (3) SCR 254]. Mukherjee, J (as the learned Chief Justice then was) upon consdering the changes effected by the Hindu Succession Act as also the implication thereof and upon taking into consideration the decisions of Calcutta High Court, Madhya Pradesh High Court, Andhra Pradesh High Court as also Madras High Court on the one hand and the Gujarat High Court on the hand opined: “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 include son's son but does not 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 S.B.C.Rev. PETITION NO.188/2009 Madan gopal & Ors. Sagar & Ors. DATE OF ORDER : 26/10/2009 3/4 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 1, 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 1 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 observations of the Mulla's Commentary on Hindu Law 15th Edn. Dealing with Section 6 of the Hindu Succession Act 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 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 included son of a predeceased son cannot be ignored.” On the other hand, Mr. Kalla, learned counsel for the respondent relied upon the decision of this Court in the case of Smt. Naini & Ors. vs. LRs of Lakhe Khan & Ors. (SB Civil Second Appeal No.74/85 decided on 3/10/2001). S.B.C.Rev. PETITION NO.188/2009 Madan gopal & Ors. Sagar & Ors. DATE OF ORDER : 26/10/2009 4/4 Learned counsel for the petitioner submits that the decision of this Court in Second Appeal was in a Rent Control and Eviction matter, which principle of law cannot be applied to the Succession Law and in view of the Supreme Court decisions and admitted fact that the plaintiff is a grandson and claiming such partition during the life time of his father, the learned trial court has decided the issues ignoring the facts on the record. A perusal of the impugned order reveals that the learned trial court has not discussed the correct legal position & relevant facts in detail. Without deciding the said issues here itself, it is considered expedient to set aside the impugned order dated 4/5/2009 and remit back the case to the trial court for decision afresh after referring to the facts of the case in correct legal perspective. Accordingly, this writ petition is allowed. No order as to costs. (DR.VINEET KOTHARI), J. item no.1 baweja/-