JUDGMENT :- This second appeal has been preferred by the plaintiff/appellant against the respondents impugning the judgment and decree dated 2-12-1997 rendered by Additional District Judge, Sabalgarh, distt. Morena in Civil Appeal No. 16-A/89, affirming the judgment and decree passed by the trial Court in original Civil Suit No. 28-A/84. Vide impugned judgment and decree the suit filed by the appellant for declaration of title and injunction has been dismissed. 2. During the course of arguments, both the parties have admitted the following factual status of the case. 1. That the whole of the land Survey numbers 37,236/3, 237, 238, 239, 240 and 241, total survey numbers 7, total land 14 bigha and 9 biswa situated in village Parvati Badoda, Tehsil Vijaypur distt. Morena (presently distt. Sheopurkalan) which has been mentioned in para No. 1 of the plaint was owned by one of the three brothers, Lalji, Budhi and Moti. Moti died without any heirs. Budhi is defendant No. 2 and plaintiff Patiram is son of defendant No. 2 Budhi. Lalji also died and defendant No. 1 Mula is his son. 2. That, Mula defendant No. 1 has sold a part of the above land to his daughters respondents Nos. 3 and 4 Basanti and Bhagvanti. Hence they are also arrayed as respondent/defendants. Respondent No. 5/the State being formal party has been arrayed as respondent No. 5. The main dispute is between respondent/defendant No. 1 Mula at one side and appellant/plaintiff defendant No. 2 Budhi at another side. It is the contention of the appellant that after death of Moti, the whole of his share in land will devolve to the respondent No. 2 Budhi, while as per the respondent No. 1 Mula, only half share will go to him. 3. It is also not disputed that both the Courts below have come to the conclusion that disputed land has not been partitioned, that deceased Moti did not give his share to the appellant before 16 years of his death, that the appellant is not in exclusive possession in the nature of hostile possession on a part of the disputed land, that respondent No. 1 Mula and respondent No. 2 Budhi are having shares in the disputed property and that the sale deed dated 28-5-1984 executed in favour respondents No. 3 and 4 by respondent No. 1 has no adverse affect to the interest of the appellant. 3. 3. Considering this dispute between the parties, the following point of law has been framed vide order dated 5-4-2006 :- "Whether the entire share left by deceased Moti could go to Mula on his death?" 4. It being second appeal, this Court is not required to look into the concurrent finding of the Court below nor it has been pressed. 5. On perusal of the pleadings, as well as admitted by both the parties during the course of arguments, the disputed land has not been mentioned by the parties as ancestral property. It is only mentioned that in the disputed land, all the three brothers are having equal shares. It is also not disputed that one brother Lalji died seven years before filing of the suit and, thereafter, another brother Moti died before two years of the suit. Still the disputed land is undivided as per the concurrent findings of both the Courts below. It is also agreed by both the parties, during the course of arguments that parties are governed by Hindu Succession Act (hereinafter referred to as the Act). In view of the fact that the disputed land has not been mentioned as coparcenary property, Section 6 of the Act will not apply. The relevant provisions of Sections 8, 9 and 11 of the Act and heirs mentioned in Class I and Class II of the Schedule are as under :- 8. General rules of succession in the case of males :- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 9. 9. Order of succession among heirs in the Schedule - Among the heirs specified in the Schedule, those in class I shall simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession. (Emphasis supplied) 11. Distribution of property among heirs in class II of the Schedule - The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally. (Emphasis supplied) Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased 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; (son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son). Class II I. Father. II. (1) Son's daughter's son, (2) son's daughter's daughter; (3) brother, (4) Sister. III. (1) Daughter's sons's son, (2) daughter's Son's daughter, (3) daughter's daughter's son, (4) daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister. (Emphasis supplied) 6. The substantial question of law, as quoted hereinabove, it is to be decided as to whether the entire share left by deceased Moti could go to Mula on his death ? On perusal of the above provisions, it appears that after the death of male intestate, his property will devolve to the heirs specified in class I of the Schedule. Admittedly Moti was unmarried and died issueless. On perusal of the entries of class I in the Schedule, neither of the parties including Mula come under class I. As provided by Section 9 of the Act, in case no heir is available of class I, then the property will go to the heirs mentioned in class II. Admittedly Moti was unmarried and died issueless. On perusal of the entries of class I in the Schedule, neither of the parties including Mula come under class I. As provided by Section 9 of the Act, in case no heir is available of class I, then the property will go to the heirs mentioned in class II. On perusal of the heirs of class II of Schedule, it appears that brother of the deceased has been mentioned in second entry of class II as highlighted hereinabove. In the first entry only father has been mentioned, who was not alive. Status of Mula is of nephew, that is, brother's son and that has been mentioned in fourth entry of class II, as highlighted hereinabove. It is very specifically provided in the highlighted part, under Section 9 of the Act, that if any heir is available in second entry of class II, he will be preferred and thus he will exclude any other heir of any subsequent entry of class II. Respondent No. 2 Budhi was alive who was the brother of deceased Moti at the time of his death. Mula being in forth entry, will be excluded, as Budhi in second entry of class II was available. Cumulative effect of the provisions as quoted hereinabove, is that in case, no heir of class I is available then there will be a search of any heir in class II. In class II of the Schedule total nine entries have been mentioned. Budhi being brother comes in second entry and when the heir in second entry is available, he will exclude the heirs of other subsequent entries in class II. 7. In view of this the question is decided in negative. It is concluded that share of Moti after his death, will go to his brother Budhi, the respondent No. 2. Although, Respondent No. 2 has died during the pendency of this appeal, as it appears by the cause title as well as order dated 13-11-2006 by which his name has been deleted. Yet, this subsequent death of Budhi has no effect, so far as the devolution of the share of Moti is concerned. 8. This suit has been filed by the appellant for declaration of his title on particular survey numbers of the disputed land. Yet, this subsequent death of Budhi has no effect, so far as the devolution of the share of Moti is concerned. 8. This suit has been filed by the appellant for declaration of his title on particular survey numbers of the disputed land. As it is concluded by both the Courts below, partition of the disputed land has not been taken place till date. In view of this to settle the dispute it is concluded that in total disputed land, appellant who is the only son of deceased Budhi will have 2/3rd share in the property (1/3 share of Budhi and 1/3 share of Moti, which has already been devolved in the share of Budhi) and respondent No. 1 Mula will have 1/3rd share of his father deceased Lalji, in the property as and when the partion will take place. As a part of the disputed land has been sold by Mula vide registered sale deed Ex. P-2 dated 28-5-84 to his daughters respondents No. 3 and 4 Basanti and Bhagavanti, this sale deed will not affect the above share of appellant, at the time of partition, if any. For the sake of convenience, it is further directed, that as far as possible, at the time of partition, if any, the land sold vide registered sale deed Ex. P-2 or a part thereof, will be allowed to the share of Mula. 8A. Consequently, appeal is partly allowed as indicated herein above and that part of the decree passed by Court below, which is inconsistence with the above direction, is set aside. Appeal partly allowed.