A grandson is not included in Class I heirs under Section 8 of the Hindu Succession Act, 1956, and therefore, he has no right to inherit ancestral property inherited by his father under Section 8.

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