ORDER
Subhash Samvatsar, J.
1. This revision is filed by the defendants against whom an injunction order is passed by both the Courts below.
2. The facts giving rise to this revision are as under :--
Respondent Nos. 1 and 2 filed a suit for declaration and permanent injunction against the petitioners and respondent Nos. 3 and 4, regarding agricultural land bearing survey Nos. 66 and 94, situated at Village Badokhar, District Morena. The said property was purchased in the name of Madangopal by registered sale-deed dated 21-7-1944. Petitioner No. 2 and respondent No. 3 are sons of Madangopal, while respondent Nos. 1 and 2 are grand-sons of Madangopal. They are claiming their right to the suit property through their father/respondent No. 3.
3. The suit is filed on the allegation that father of Madangopal, Thakurdas had retired from Calcutta Jute Mill and had received some retiral benefits at the time of his retirement. The suit property was purchased from the said amount and is thus purchased from the joint family funds. Both the Courts below prima facie found that this property was purchased out of the funds received by Thakurdas, who has retired from Calcutta Jute Mill and, therefore, respondent Nos. 1, 2 and 3 have interest in the suit property.
4. After perusing both these judgments, in my opinion, the Courts below have acted with material irregularity in exercise of their jurisdiction and in granting an injunction against Madangopal and petitioners. The respondent Nos. 1 and 2 were aged 33 years and 28 years respectively at the time of institution of the suit and, thus, appears to have born after 1956. The present suit is filed in the year 1996. In 1956 Hindu Succession Act has come into force.
5. The Supreme Court has considered the impact of Hindu Succession Act, 1956 in its judgment in the case of Commissioner of Wealth-tax, Kanpur etc. v. Chander Sen etc., (AIR 1986 SC 1753), and has held as under :--
'19. It is necessary to bear in mind the Preamble to the HinduSuccession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. 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.'
6. The Supreme Court in its judgment in the case of Yudhishtar v. Ashok Kumar (AIR 1987 SC 558), has again considered the question and has held as under :--
'10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567: (AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that 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 grand-father 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 grand-son 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.'
7. In view of the aforesaid pronouncements, it is clear that after coming into force of the Hindu Succession Act, the theory of birth-right does not exist and son gets share in the property only after death of his father.
8. From the record, it is clear that Madangopal expired after filing of this revision while Ramgopal is still alive. In such a situation, respondent Nos. 1 and 2, who have filed the suit, have prima facie no right, title or interest in the suit property. They will not get any interest in the property so long as Ramgopal is alive and, therefore, they have no prima facie case in their favour to seek injunction.
9. Moreover, the injunction sought is restraining the petitioners from alienating the suit property. The interest of the parties pending litigation is always governed by the principle of lis pendence. In view of the fact, I allow this revision and vacate the injunction order passed by Courts below.
10. Revision is, therefore, allowed. The impugned orders are set aside. The injunction orders passed by the Courts below are vacated. There shall be no orders as to costs.