S.N. ROTHO, A.M. This appeal has been filed by assessee against order dt. 24th Feb., 1983 of CIT (A) relating to asst. yr. 1979-80, previous year of which ended on 31st March., 1979. assessee is individual. He had been assessee during year under consideration on income derived from house property, business and other sources. One of items included in his total is income derived from property inherited by him from has father, late Shib Sahay Kapur. case of assessee was that said property belonged to HUF of which he was Karta and so same could not be included in his total income assessed in his individual capacity. ITO did not agree. He observed that Shib Sahay Kapur died intestate in 1971 leaving behind aforesaid house which was his self-acquired property. assessee inherited portion of said property under Hindu Succession Act. According to ITO assessee became absolute owner of said property in his individual capacity and his son or grand-son did not have any interest in that property. In this view of matter, he included income from aforesaid property in total income of assessee assessed as individual assessee appealed to CIT (A) and contended that action of ITO was not justified. Reliance was placed by assessee on decision of Gujarat High Court in case of CIT vs. Babubhai Mansukhbhai (1977) 108 ITR 417 (Guj). ld. Representative for assessee argued that though decision of Allahabad High Court in case of CIT vs. Ram Rakhpal Ashok Kumar (1968) 67 ITR 164 (All) was against assessee yet that case was distinguishable on facts. Similarly, it was urged that decision of Calcutta High Court in of Malchand Thirani & Sons vs. CIT (1980) 121 ITR 976 (Cal) was no doubt against assessee but here gains facts were distinguishable. According to assessee, distinguishable features in latter two decisions which went against assessee was due to fact that son in both those cases was already sperated from father on date of death of father. On other hand, in instant case, son, i.e., assessee before us, was alleged to be living jointly with his father on date of death of father. CIT (A) considered above contentions but did not agree. According to her, facts of instant case came within ratio of decision of Calcutta High Court in case of Malchand Thirani & Sons (supra). Respectfully following aforesaid decision, CIT (A) upheld decision of ITO and dismissed appeal. In this further appeal before us, Sri J. Pathak, learned representative for assessee urged before us that Revenue authorities erred in their decision. He stated that s. 4 of Hindu Succession Act, 1956 lays down that well recognised principles of Hindu law remained unaffected except in respect of matters enacted in said Act. That Act, especially ss. 6,8 and 30 was to deal with person who were entitled to succeed property of Hindu male dying intestate and quantum of their shares. said Act does not deal with character of property in hands of person who inherits same. Hence, old principle of Hindu Law will apply to determine nature of property in hands of inheritor. Then he referred to principle of Hindu Law which says that even self-acquired property inherited by son form his ancestor is joint family property in his hands qua his male issue. Sri. J. Pathak pointed out that on date on which father of assessee died, assessee already had son and same position continued even during previous year under consideration. Hence, he urged that property under consideration should have been treated as belonging to HUF of which assessee was Karta and not to assessee in his individual capacity. Sri J. Pathak, ld representative for assessee relied on decision in case of Babubhai Mansukh Bhai (supra) wherein under similar circumstances, Gujarat High Court has held such inherited property to be joint family property. He also referred to decision of Allahabad in case of Radheyshyam (1978) Tax LR 1021 (All) in this connection. Then he referred to decision of Gujarat High Court in case of CWT vs. Harshadlal Manilal (1974) 97 ITR 86 (Guj) wherein also similar decision has been taken. Then, he referred to decision of Special Bench of Tribunal in case o f S.R. Kirloskar published in June, 1984 issue of TAXMAN wherein, Special Bench, after reviewing entire case law on subject and after noting that there is difference of opinion on issue amongst High Courts, decided issue in favour of assessee. He also pointed out that decisions of Allahabad High Court in case of Ram Rakhpal Ashok Kumar (supra) as well as decision in case of Malchand Thirani & Sons. (Supra) were distinguishable on facts because in those cases son was already separated from father on date of death of father. According to Sri Pathak, son was not separate from his father in instant case. If son is not separated, he argued that he got unobstructed heritage. Further, he urged that in case of unobstructed heritage, property belongs to joint Hindu family. In support of this contention he also referred to fact that s. 31 of Hindu Succession Act has repealed Hindu Woman's Right to Property Act thereby conferring full ownership on females. His point was that there is change in character of property introduced by Hindu Succession Act only in respect of females. But in case of male inheritor, property would be joint family property in his hands, if he remained joint with his father at time of death of father because of nature of his heritage which is unobstructed. Hence, he urged that claim of assessee deserved to be upheld. Sri S.K. Lahiri, ld. Representative for Departmental on other hand supported order of CIT (A). In addition to cases of Ram Rakhpal Ashok Kumar (supra) and Malchand Thirani & Sons (supra), he also relied on cases of Addl. CIT vs. P.L. Karuppan Chettiar 1978 CTR (Mad) 311: (1978) 114 ITR 523 (Mad) and CIT vs. Mukundgirji (1983) 144 ITR 18 (AP): (1983) 37 CTR (AP) 84. In these cases, it has been held that properties of type inherited by assessee before us will be held by inheritor as individual property. He stated that facts of case come within ratio of decision in case of Malchand Thirani & Sons (supra) and that decision of Calcutta High Court is binding on us. He pointed out that assessee in Calcutta case had both ancestral as well as self-acquired property and High Court has held both types of property to be individual property in hands of inheritor. Hence, he urged that there is no force in argument that facts of that Calcutta case were different. Again, he urged that it has not been found as matter of fact that assessee before us in fact was living jointly with his father on date of death of latter. Even otherwise, decision of Calcutta High Court in case of Malchand Thirani & Sons (supra) laid down general law and it did not rest upon fact that assessee therein was separated from his father on cuscial date. Finally, he stated that even if son remains aspirated on cuscial date, still Calcutta decision will apply and property will have to be held as individual property. Because of observations of their Lordships at page 984 to following effect: "Under Mitakshara Law coparcener cannot dispose of his interest in coparcenary property by will but this bad has been totally removed by s. 30 o f Act and where proviso to main s. 6 applies, his interest in coparcenery property on his death devolves by testamentary succession and not by survivorship." Sri Lahiri urged that when person inherits property by succession and not by survivorship he gets property in his individual capacity as absolute owner. We have considered contentions of both parties as well as facts on record. We find force in arguments raised for Department. Sitting at Calcutta we are indeed bound by decision of Calcutta High Court in case of Malchand Thirani & Sons (supra). In this case, several other cases cited before us have been considered. Their Lordships have held that person inheriting property from his father under s. 8 of Hindu Succession Act gets it as his individual property and not as join family property because he is absolute owner thereof and is capable of disposing same in any manner he likes. In our opinion, issue raised before us is covered by aforesaid decision and must be answered in favour of Department. We have considered argument of Sri J. Pathak about distinguishing feature between this case and said Calcutta case. We have gone through assessment order, appellate order as well as written submissions given by assessee before CIT (A). We do not find any thing in those documents or anywhere else in record to suggest that assessee was living jointly with his father on date of death of his father vis-a-vis property under consideration. Quite apart from above, we must say that we are unable to see any distinction between fact of this case and Calcutta case on ground that son was joint with his father on crucial date in instant case. decision of Calcutta High Court did not turn upon fact that son was separate from his father. If said judgment of Calcutta in is read as whole, it would be quite apparent that decision therein is based on interpretation of provisions of Hindu Succession Act. Insofar as they determine nature of self-acquired property of father inherited by son in his hands even when he has male issues. We have also considered argument bases upon obstructed and unobstructed heritage but we are not able to accept same. When person gets right in property by his very birth, then heritage is said to be unobstructed. On other hand, when person is likely to get right in property only after death of one or more persons, then he is said to have obstructed heritage. We do not see any connection between this concept and question as to whether self- acquired property of father inherited by son is individual property or joint family property in hands of son. For above reasons, respectfully following decision of Calcutta High Court in case of Malchand Thirani & Sons (supra), we hold that Revenue authorities were quite correct in holding assessee to be owner of property under consideration in his individual capacity. Hence, we uphold order of CIT (A). In result, appeal is dismissed. *** SURESH KAPUR v. INCOME TAX OFFICER