JUDGMENT 1. - This appeal is directed against judgment and decree dated 12.05.2009 passed by Additional District Judge No.1, Chittorgarh, whereby, the appeal filed by the appellant against the judgment and decree dated 07.02.2003 passed by Additional Civil Judge (Senior Division) No.2, Chittorgarh has been dismissed. 2. The facts in brief may be noticed thus : a suit was filed by the plaintiff-appellant seeking cancellation of sale deed dated 03.11.1979 and for possession of the suit property; it was, inter alia, claimed in the plaint that plaintiff's great grand-father was Moolchand, whose son, his grand-father was Ram Narayan, who had three sons - Arjun, Khyali Lal and Punam Chand; Khyali Lal had two sons - Mahendra Kumar, the plaintiff and Narendra Kumar - defendant No.3 and defendant No.2 Khyali Lal is his father; it was claimed that the suit property - shop was ancestral property as on account of death of Moolchand, the same was succeeded by Ram Narayan; on death of Ram Narayan, the property came to defendant No.2 Khyali Lal, which was sold by him on 03.11.1979 for a sum of Rs. 15,000/-; the defendant No.2 father did not seek his consent or that of his mother and brother; the defendant was minor then and he became major on 29.08.1994 and gave notice to defendant No.1, to which, no reply was given and, therefore, the suit was filed seeking cancellation of the sale deed and possession. 3. A written statement was filed and the existence of joint Hindu family was denied; it was stated that after death of Ram Narayan, the joint family disintegrated and defendant No.2 became owner of the suit property by partition and as the shop was owned by defendant No.2, for his requirements, the same was sold; ultimately, it was prayed that the suit be dismissed. 4. The father and the brother remained ex parte. 5. The trial court framed six issues and after evidence was led by the parties and after hearing the parties, it came to the conclusion that the suit was filed within limitation, the plaintiff had no right in the suit property as the property was partitioned by Ram Narayan in his life time and the same fell in the share of defendant No.2 and was, therefore, a self acquired property. Even if, Ram Narayan had died intestate, the property would have devolved on defendant No.2 Khyali Lal only and the plaintiff being grand-son has no right in the suit property as in Class I heirs the grand-son is not included. Based on the said finding, the other issues were also decided in favour of the defendants and the suit was dismissed. 6. Feeling aggrieved, the plaintiff filed first appeal before District Judge, Chittorgarh, who after hearing the parties came to the same conclusion and dismissed the appeal. 7. It is submitted by learned counsel for the appellant that both the courts fell in error in coming to the conclusion that the suit property was not ancestral and the defendant No.2 had right to sale the property as a self acquired property and, therefore, both the judgments impugned stand vitiated. 8. I have considered the submissions made by learned counsel for the appellant. 9. Though the appellant came out with a case that the property in question belong to Moolchand his great grand-father, however, in the oral evidence, it was clearly averred by the plaintiff that the property belong to his grand-father Ram Narayan and, therefore, it was ancestral property. The said plaintiff in cross-examination admitted that Ram Narayan partitioned the properties amongst his sons Arjun, Khyali Lal and Punam Chand and, therefore, on account of said partition the suit property in the hands of Khyali Lal was rightly held by the courts below as self acquired only. 10. Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen & Ors. : (1986) 3 SCC 567 held and observed as under:- "10. The question here, is, whether the income or asset which a son inherits from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his individual income. There is no dispute among the commentators on Hindu law nor in the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. But the question, is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and class I of the Schedule provides that if there is a male heir of class I then upon the heirs mentioned in class I of the Schedule. Class I of the Schedule reads as follows: Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son. 11. The heirs mentioned in class I of the Schedule are son, daughter etc. including the son of a predeceased son but does not include specifically the grandson, being a son of a son living. Therefore, the short question, is, when the son as heir of class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family? 21. It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus. 22. 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 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 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 Act would be HUF in his hand visa-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and visa-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 Section 8 of the Act included widow, mother, daughter of predeceased son etc. 24. 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 include son of a predeceased son cannot be ignored." 11. In view of the above undisputed fact and the law laid down by the Hon'ble Supreme Court, the plaintiff had no right in the suit property and, therefore, both the courts below were justified in dismissing the suit/appeal filed by the appellant.Consequently, there is no substance in the appeal and the same is, therefore, dismissed.Second Appeal Dismissed. *******