JUDGMENT Rakesh Kumar Garg, J. (Oral):- This is defendants’ second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff for declaration to the effect that judgment and decree dated 27.8.1994 passed by the Sub Judge First Class, Dhuri in civil Suit No.33 of 7.1.1994 titled as Tota Singh v. Sarwan Singh is illegal and for declaration that plaintiff is owner and in joint possession of 1/3rd share out of the property of Sarwan Singh at the time of his death as detailed in the head note of the plaint, further restraining the appellants from alienating the share of the plaintiff, was decreed. 2. As per the averments made in the civil suit, Pritam Singh (plaintiff, i.e., predecessor in interest of respondents No.1 to 4) and Tota Singh (i.e., predecessor in interest of appellants) along with Sarwan Singh their father constituted a joint Hindu family and the suit property was coparcenary property of the parties in which the plaintiff had a birth right. It was further alleged that the property in the hands of Sarwan Singh had come from his fore-fathers and the plaintiff along with his brother and defendants were owners in joint possession of the suit land in equal shares and as such plaintiff was entitled to declaration of joint possession. It was further alleged that the property in dispute was inherited by the defendant Sarwan Singh from Phuman Singh who further inherited the same from Lehna Singh and the plaintiff-respondent and other family members were joint in mess and residence. It was alleged that Sarwan Singh during his life time without any legal necessity suffered a consent decree dated 27.8.1994 in civil suit No.33 of 7.1.1994 in favour of Tota Singh with respect to land measuring 15 bighas 12 biswas 7 biswansis. Sarwan Singh died on 9.9.1995. It was the case of the plaintiff that the aforesaid judgment and decree was illegal and not binding upon him. It was further alleged that Tota Singh died on 25.6.1995 and defendants (i.e. appellants) were his legal heirs. It was also alleged that the defendants were threatening to alienate the suit property and they refused to admit the claim of the plaintiff. Hence, the present suit was filed. 3. In the written statement, appellants denied that the parties constituted joint Hindu family or that the suit property was a coparcenary property of the parties. It was also alleged that the defendants were threatening to alienate the suit property and they refused to admit the claim of the plaintiff. Hence, the present suit was filed. 3. In the written statement, appellants denied that the parties constituted joint Hindu family or that the suit property was a coparcenary property of the parties. It was also denied that the plaintiff had a birth right in suit property. It was further alleged that the appellants were owners in exclusive possession of the suit property and plaintiff had no concern with the same. It was also denied that the defendants had inherited the property from his common ancestors. It was further submitted that decree dated 27.8.1994 passed in favour of Tota Singh was legal and valid. It was also pleaded that Sarwan Singh executed a registered Will dated 15.11.1989 registered on 31.1.1990 in favour of Tota Singh bequeathing his entire moveable and immovable property and Tota Singh has become owner in possession of the properties left by Sarwan Singh. Other facts were denied and prayer for dismissal of the suit was made. 4. After hearing the arguments of the learned counsel for the parties, the suit of the plaintiff was dismissed by the then Sub Judge First Class, Dhuri vide judgment and decree dated 18.8.1993 against which an appeal was filed and the case was remanded back vide judgment dated 30.8.1996 after framing the issues. After remand, the evidence was led, however, amendment application filed by the defendants was allowed and additional issues were framed. After remand and amendment, the defendants also led evidence. 5. On appreciation of evidence and after hearing learned counsel for the parties, the trial Court decreed the suit on 26.5.2006 vide impugned judgment and decree. 6. Feeling aggrieved of the impugned judgment and decree passed by the trial Court, the appellants preferred an appeal before the lower appellate Court which was also dismissed. While dismissing the appeal, the lower appellate Court observed that Section 8 of the Hindu Succession Act, 1956 will not materially affect the rights of plaintiff as property at the hands of Sarwan Singh was Hindu coparcenary property which was inherited by way of survivorship. 7. Still not satisfied, instant appeal has been filed by the appellants challenging the judgment and decrees of the Courts, submitting that the following substantial questions of law arise in this appeal:- 1. 7. Still not satisfied, instant appeal has been filed by the appellants challenging the judgment and decrees of the Courts, submitting that the following substantial questions of law arise in this appeal:- 1. Whether after the death of Phuman Singh in the year 1988 the Estate of the deceased Phuman Singh will devove upon his legal heris as per Section 8 of the Hindu Succession Act, 1956 or it can be said to be HUF property/ coparcenary? 2. Whether after the death of father of Swaran Singh i.e. Phuman Singh the property succeeded by the three brothers in equal shares as shown in mutation (Annexure A -1) will be the coparcenary property or the self acquired property in the hands of Sarwan Singh who has executed the Will and the consent decree in favour of the predecessors of appellants before his death? 3. Whether the findings of the learned trial Court without appreciating the proposition of law regarding the property in the hands of Sarwan Singh are illegal and are liable to be set aside? 8. In support of his appeal, learned counsel for the appellants vehemently argued that as per the mutation dated 22.12.1988 (Ex.P6), the property from Phuman Singh went in equal shares to Hajura Singh, Santa Singh and Sarwan Singh by way of natural succession/inheritance amongst the sons of Phuman Singh. Therefore, the property no more remained coparcenary property in the hands of Sarwan Singh. According to learned counsel for the appellants, once the property stood divided amongst the sons of Phuman Singh, including Sarwan Singh who was father of Pritam Singh and Tota Singh, it did not constitute the joint Hindu coparcenary property as the same had come to Sarwan Singh after the enactment of the Hindu Succession Act, 1956. In support of his case, learned counsel has relied upon a judgment of the Hon’ble Supreme Court in Commissioner of Wealth Tax, Kanpur v. Chander Sen, AIR 1986 SC 1753 and Yudhishter v. Ashok Kumar, AIR 1987 SC 558. On the basis of the aforesaid argument, learned counsel for the appellants has contended that the judgment and decrees of the courts below are liable to be set aside and suit of the plaintiff-respondent was liable to be dismissed. 9. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. 10. On the basis of the aforesaid argument, learned counsel for the appellants has contended that the judgment and decrees of the courts below are liable to be set aside and suit of the plaintiff-respondent was liable to be dismissed. 9. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. 10. The basic controversy to be decided in this case is, “whether the suit property at the hands of Sarwan Singh which he admittedly inherited from his father Phuman Singh was joint Hindu family/coparcenary property qua the rights of the plaintiff-respondents. 11. Sections 6 which is applicable in the present case (as it stood prior to the amendment by Act 39 of 2005) and 8 of the Hindu Succession Act, 1956 read as under:­- 6. Devolution of interest of coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: PROVIDED that, if the deceased had left him survIvmg 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 the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1: For the purposes of this section, the interest of Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 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. 8. General rules of succession in the case of males. Explanation 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. 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 two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 12. The Apex Court, in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen (supra), observed as under:- “... 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 separate 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 Kar of his own undivided family but takes it in his individual capacity....” 13. The aforesaid ratio of law was reiterated by the Hon’ble Supreme Court in Yudhishter v. Ashok Kumar’s case (supra). 14. However, it may be noticed that the concept of coparcenary property/joint Hindu family property was saved by Section 6 of the Hindu Succession Act, 1956. The aforesaid ratio of law was reiterated by the Hon’ble Supreme Court in Yudhishter v. Ashok Kumar’s case (supra). 14. However, it may be noticed that the concept of coparcenary property/joint Hindu family property was saved by Section 6 of the Hindu Succession Act, 1956. A bare perusal of Section 6 of the Hindu Succession Act, 1956 would clearly show that when a male Hindu dies having an interest in a Mitakshra coparcenary property at the time of his death, his interest in the property shall devolve by survivorship upon the surviving coparcener and not according to this Act and it is only where he left surviving a female relative specified in Clause I of the Schedule, his ­interest in the Mitakshara coparcenary property shall devolve by intestate succession and not by survivorship. 15. It may be relevant to mention at this stage that in Chander Sen’s case (supra), there was a partition of the joint family assets between father and his only son. Thereafter, they continued the business in the name of partnership firm. The son formed a joint family with his own sons. The father died and amount standing to the credit of the deceased father in the account of the firm devolved on his son. The Wealth-tax authorities while assessing the wealth tax in respect of the family of the son, i.e., the assessee included the amount in computing the wealth after noticing the provisions of Section 8 of the Hindu Succession Act, 1956. The Apex Court held that son inherited the aforesaid property as an individual and not as Karta of his own family and therefore, it could not be included in computing the assessee’s wealth. Thus, in the aforesaid case, the effect of Section 6 of the Hindu Succession Act, 1956 was not considered as there was not dispute with regard to the share of the father which after partition had devolved upon the son, whereas in the present case, the property was inherited by Sarwan Singh from his father by way of survivorship along with others. 16. 16. In the present case, there is no dispute that at the time of succession of Phuman Singh, there was no female heir as specified in Clause I of the Schedule attached to the Hindu Succession Act, 1956 and his property went in equal shares to Hazura Singh, Santa Singh and Sarwan Singh (predecessor in interest of the parties) and thus by virtue of Section 6 of the Hindu Succession Act, 1956, Section 8 of the said Act had no applicability and property in dispute devolved upon Sarwan Singh by way of survivorship. Mutation No.1290 (Ex.P6), the property in dispute was inherited by Sarwan Singh from his father Phuman Singh by way of survivorship. Thus, from the revenue record also it has been proved that after the death of Phuman Singh, his property was inherited by his sons (including Sarwan Singh) by way of survivorship after the Hindu Succession Act, 1956 came into force. Thus, Section 8 of the Hindu Succession Act, 1956 has no applicability in the present case and will not affect the rights of the Pritam Singh - plaintiff as coparcener in the suit property in the hands of his father Sarwan Singh as he inherited the suit property by way of survivorship under Section 6 of the Act. Argument raised by learned counsel is without any merit. No other point was argued. No substantial question of law arises in this appeal. No merit. Dismissed. -----------------------