1. When asked Law is not there as a Law then how do you expect clear answer?
2. However if answer is sought under present operating Laws then let us refer to paragraph 222 of Mulla's "Principles of Hindu Law," thirteenth edition. In that paragraph, while dealing with the incidents of separate or self-acquired property of a Hindu, the ld author has made an observation to the following effect:
"A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the co-parcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners."
3. It would thus appear that the above observation has been made on the assumption that no member of the co-parcenary, not even a male issue, acquires any interest in the separate property of a Hindu by birth. With all respect to the ld. author, this observation is not quite correct and I can do no better than refer to the following observation of their Lordships of the SC in ref. C. N. Arunachala Muda-liar v. C. A. Muruganatha Mudaliar [AIR 1953 SC 495]
"It is undoubtedly true that according to Mitakshara, the son has a right by birth both in his father's and grand-father's estate, but as has been pointed out before a distinction is made in this respect by Mitakshara itselt In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same."
4. Thus, it would thus appear that the observation in paragraph 222 of Mulla's Hindu Law is not quite correct. It appears to have been made with reference to the power of the father to sell or gift away his separate property or to bequeath it by a will, and it cannot be said that the ld. author was of the view that the undivided son has no interest, by birth, in the self-acquired property of his father, so as to make a divided son eligible to its inheritance on the father's death. I may, in this connection, refer to paragraphs 43 (iii) and 341 of Mulla's Hindu Law which makes the position quite clear.
5. At any rate, as it is well settled that a son has a right by birth in his father's self-acquired property, that property would go to the undivided son to the entire exclusion of the divided son, because the divided son had ceased to have any interest in it on partition or separation As the father was joint with one son, the ancestral and self-acquired property of the father belonged to the joint family and on the death of the father there could therefore be no question of his separated son getting any share in it.
