ORDER :

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property and postulates that when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. In terms of the proviso however if the deceased had left him surviving 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 the Act and nor by survivorship.

2. It is common ground that Section 6, as substituted by Act 39 of 2005 w.e.f. 9th September, 2005, has made the daughter of a coparcenar also entitled to claim as a male coparcenar. That provision was not in existence earlier. Be that as it may the question that falls for determination in the present appeal shall have to be answered by reference to Section 6 as it stood before the said amendment.

3. The High Court has placing reliance upon the decision of this Court in Commissioner of Wealth-Tax, Kanpur, etc. v. Chander Sen etc., AIR 1986 SC 1753; held that succession to the property in the case at hand shall be governed by general rule of succession as stipulated in Section 8 of the Hindu Succession Act, 1956. In Chander Sen's case (supra) while dealing with the provisions of the Wealth Tax Act and the effect of partition of joint family between the father and his only son, this Court noticed the cleavage in the judicial opinion expressed by several high courts in the country and resolved the same by accepting the view taken by the High Courts of Allahabad, Madras, Madhya Pradesh and Andhra Pradesh while overruling that taken by the High Court of Gujarat. This Court observed:

"20. In view of the preamble to the Act, i.e., that 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 would be HUF in his hand vis-a-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 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 section 8 of the Act included widow, mother, daughter of predeceased son etc.

21. Before we conclude we may state that we have noted the obervations of Mulla's Commentary on Hindu law 15th Edn. dealing with section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition pages 918-919.

22. 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 included son of a predeceased so