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TMI Blog2006 (9) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956. Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the Act. Except to the aforementioned extent; in our opinion, the courts below are correct in applying the provisions of Section 6 of the Act and holding that Section 8 thereof will have no application. The appeal is allowed in part and to the aforementioned extent. The decree would be modified accordingly. X X X X Extracts X X X X X X X X Extracts X X X X ..... hands of Babu Ram qua the plaintiffs. The issue is decided accordingly." 5. The suit of the plaintiffs was decreed on the basis thereof. The Appellate Court also affirmed the decree passed by the learned Trial Judge. `On a Second Appeal having been filed by Appellants herein, according to the High Court, the only question which required determination was as to whether the provisions of Section 8 of the Act would apply to the facts of the present case or the law as applicable prior to the enforcement of the 1956 Act would apply. The High Court opined that for the purpose of determination of the said question it was necessary to determine the nature of the property. Having held that the nature of the property must be recorded as Hindu Coparcenary and ancestral property, it was stated that the law applicable before the Act came into force would govern the rights of the parties and not the provisions of the Act. 6. Mr. Nidesh Gupta, learned counsel appearing on behalf of Appellants submitted that the High Court committed a manifest error in arriving at the aforementioned findings in total disregard of the provisions of the 1956 Act. The learned counsel would contend that keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2- Nothing contained in the proviso to this 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." A bare perusal of the said provisions would clearly show that where the deceased had left him surviving a female relative specified in class I of the Schedule, his interest in the Mitakshara coparcenary property shall devolve by intestate succession and not by survivorship. 8. We have noticed hereinbefore that a finding of fact has been arrived at that the properties in the hands of Babu Lal and his brothers were joint family property. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property and thus, would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, it is a separate property, and if the coparcener dies without leaving male issues, it passes to his heirs by succession. A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten." 11. In M.T. Pankaiammal & Anr. v. M.T. Parthasarthv Aiyangar, AIR (33) 1946 Madras 99, it was held : "........If it were necessary I would on the circumstances above adverted be prepared to hold that there was no intention on the part of the executant that the son to be adopted had to share the property with any son that may be born to him subsequently. But as I have already held on a construction of the settlement deed, the plaintiff became entitled to the property only on the death of his father and as an adopted son, according to Hindu Law, he had to share it along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is now well settled, that when Hindu undivided family property is partitioned between the members of a Hindu undivided family, and a share is obtained on such partition by a coparcener, it is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. We are of the opinion that it is not correct to say that the share of the property, upon partition, constitutes the separate property of the coparcener and that it is only subsequently when a son is born that the property becomes ancestral property or Hindu undivided family property: The birth of the son does not alter the nature of the property. The property all along continues to be coparcenary property. But upon the birth of a son all the rights which belong to a coparcener belong to that son, and the enlarged rights hitherto enjoyed by the sole coparcener are now abridged within their normal compass." 13. We may, however, notice that the same learned Judge in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors., [1986] 3 SCC 567, in a case where father and his son constituted a HUF and had been carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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." The said decision has been followed by this Court in Commissioner of Income Tax v. P.L. Karuppan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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