R.S.A.No.3626 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3626 of 2008 Date of Decision : 19.08.2009 Mukhtiar Singh ...Appellant Versus Nahar Singh and Others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. A.S.Jattana, Advocate, for the appellant. Mr. Akshay Jain, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for declaration challenging the decree dated 5.11.1990 and Will dated 30.6.1987 executed by Bhag Singh in favour of defendant Nos.1 and 2, was dismissed. It is the case of the plaintiff that the property measuring 113 Kanals 1 Marla situated at Vilalge Aklia-II and land measuring 1 Kanals 12 Marlas situated at Village Aklia, is the coparcenary property in the hands of Bhag Singh. Therefore, Bhag Singh could not suffer decree in favour of his other two sons nor was competent to execute the Will in favour of defendant Nos.1 and 2 by excluding the plaintiff, his another R.S.A.No.3626 of 2008 2 son. Though the learned trial Court decreed the suit holding that the property is ancestral and coparcenary property, but the first Appellate Court has relied upon the judgment of Hon'ble Superme Court in Commissioner of Wealth-tax, Kanpur etc. Vs. Chander Sen etc. AIR 1986 Supreme Court 1753, to hold Bhag Singh has inherited the property after the commencement of Hindu Succession Act, 1956, and is governed by Section 8 thereof. Thus, qua the sons of Bhag Singh, it is the self- acquired property. Learned counsel for the appellant has vehemently argued that Bhag Singh got the property from his forefathers and, therefore, Section 8 is not applicable as Bhag Singh has got the property by survivorship and not by inheritance. The said question has been examined in Chander Sens's case (supra), referred to above, wherein it has been held that in terms of express words of Section 8 of the Hindu Succession Act, 1956, the law of succession stands amended and the property will cease to be ancestral property qua the sons of a male son. It was held to the following effect : “20. 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 S.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 S.8 to inherit, the latter would by applying R.S.A.No.3626 of 2008 3 the old Hindu law get a right by birth of the said property contrary to the scheme outlined in s.9. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by S. 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 S. 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son: that would amount to creating two classes among the heirs mentioned in Class-I, the mate 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 S. 8 of the Act included widow, mother, daughter of predeceased son etc.” The said judgment has been referred to in Yudhishter Vs. Ashok Kumar (1987) 1 Supreme Court Cases 204, wherein it has been held to the following effect : "10. This question has been considered by this Court in CWT V. Chander Sen, where one of use (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 R.S.A.No.3626 of 2008 4 individual capacity. At pages 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. Pages 924-26 as well as Mayne's Hindu Law, 12th edn. pages 918-19. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th en. at pages 918-19. 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 end. page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 f the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis 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." In view of the aforesaid judgments, the land in the hands of Bhag Singh cannot be treated to be ancestral property qua his sons i.e. the plaintiff and defendant Nos.1 and 2. Thus, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 19.08.2009 (HEMANT GUPTA) Vimal JUDGE