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TMI Blog2001 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... of such an impartible estate in the assessment years under consideration?" The facts may be briefly noticed. Guru Amarjit Singh is the assessee. He was the holder of an impartible estate for the last about 40 years which was "much before the passing of the Hindu Succession Act". Up to the assessment year 1969-70, the estate was being assessed as belonging to the Hindu undivided family. However, for the five assessment years, viz., 1970-71 and 1972-73 to 1975-76, the holder of the estate was assessed as an individual. The Wealth-tax Officer had taken the view that the assessee being the holder of an "impartible estate, the value of the estate has to be assessed in his hands in the status of an individual as per the provisions of section 4(6) of the Wealth-tax Act, 1957". The contention of the assessee that with the passing of the Hindu Succession Act, 1956, the concept of "impartible estate" had become obsolete was rejected. The value of the estate was, thus, included in the wealth of the assessee. Copies of the five orders passed by the Wealth-tax Officer are at annexures A to A-4. The assessee appealed. It was contended that in view of the provisions of sections 4 and 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be rendered redundant. Mr. Sawhney also referred to various decisions in support of his submissions. The primary question that arises for consideration is-Has the Hindu Succession Act, 1956, brought about any change in the rules of Hindu law relating to the rules of "primogeniture" and "impartible property"? "Impartible" in its ordinary sense means "indivisible". In the present context, it implies an estate that cannot be partitioned, by virtue of a restraint imposed by custom or the grant. A property can be indivisible by its very nature. Like an idol. Another property can be totally partible. Like, a piece of land, a house or even money. Land, etc., can be easily partitioned to carve out shares. However, even a par tible property can be made impartible. By law. Even by custom. Where restraint on partition is imposed by custom, it can be effective only when the said custom is ancient, invariable and is established by long usage. Then it has the force of law. One of the recognised customs is embodied in the old rule of "primogeniture" in simple words, it means the primacy of the first born son. He suc ceeds to the estate to the exclusion of all the other survivors. As a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A perusal of the above provision shows that the Act has an overriding effect. On promulgation of the Act, "any text, rule or interpretation of Hindu law or any custom or usage as part of that law... cease to have effect with respect to any matter for which provision is made" in it. Thus, any custom or law which was in force before June 17, 1956, ceased to apply to the Hindus to the extent it was inconsistent with the provisions of the 1956 Act. An exception was carved out in section 5 whereby certain properties were specifically excluded from the application of the Act. For the purposes of this case, the relevant provision is contained in clause (ii). It reads as under: "5. Act not to apply to certain properties--This Act shall not apply to-. . . (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act." A perusal of the above provision shows that if by the terms of an agreement or covenant entered into by the Ruler of an Indian State with the Government of India or under an existing enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Clauses Act, 1897, an Act of Parliament comes into force on the day it receives the assent of the President. In the present case, it is the admitted position that the Act had been promulgated on June 17, 1956. If the contentions of Mr. Sawhney were accepted, the Act would actually remain in abeyance till the date of the death of the holder. In other words, the date of enforcement of the Act would be uncertain. It would vary from family to family and case to case. This would lead to chaos. Such cannot be the state of law. In any case, the courts shall always be reluctant to countenance such a consequence. In this context, it deserves mention that the classes of heirs which were recognised under the old Hindu law have ceased to exist on the coming into force of the Act. Now the heirs are divided into four classes as given in the Schedule. The property devolves in equal shares among the son, daughter, widow and mother of the deceased. The male and female heirs are treated equally. The limited estate possessed by a female Hindu is abolished. Now she holds the property as an absolute owner with full power to deal with it. The heirs generally "take the property per capita." The righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision has been made in that behalf in the Hindu Succession Act, till the succession opens after the said Act coming into force." A similar view has been taken by the Patna High Court in CIT v. Maharaja Chintamani Saran Nath Sah Deo [1986] 157 ITR 358 and by the Rajasthan High Court in Rao Narain Singh v. CIT [2001] 252 ITR 88. Mr. Sawhney contended that if the view as expressed in the aforesaid decisions is accepted as correct, the provisions contained in section 4(6) of the Wealth-tax Act and section 27(ii) of the Income-tax Act, 1961, would be rendered redundant. Is it so? Section 4(6) of the Wealth-tax Act came into force with effect from April 1, 1965. The provision contained in section 27(ii) of the Income-tax Act is in similar terms. Section 4(6) provides as under: "For the purposes of this Act, the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in estate." These provisions introduce a fiction. It is provided that in the case of an impartible estate, it shall be assumed that the holder is the owner of all the properties. The fiction has a limited application. It can be invoked only when the assessee holds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for the reasons given above, we cannot concur with the view taken by their Lordships of the Calcutta High Court. It is the admitted position that the assessee had succeeded to the ancestral property by the rule of primogeniture. Up to the assessment year 1969-70, the estate had been assessed to wealth-tax, etc., as belonging to the Hindu undivided family. The sudden change was made by the Revenue on account of the decision of the Calcutta High Court in U.C. Mahatab's case [1981] 130 ITR 223. For various subsequent years, a contrary view was also taken. For the reasons given above, we are unable to follow the rule laid down by the Andhra and Calcutta High Courts. No other point was raised. In view of the above, it is held that: (i) A perusal of the preamble to the Hindu Succession Act shows that the old law has been amended. The law has also been codified. Thus, the old rules have been altered and replaced by the new provisions. In regard to the matters covered by the provisions of the Hindu Succession Act, 1956, the court cannot rely upon any custom or usage. (ii) Section 4 of the Hindu Succession Act abrogates every text, rule, custom and law which was in force imm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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