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TMI Blog1993 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding that the partial distribution of the assets effected by the administrator of the estate of the late Maharaja Sir J. M. Scindia, on February 1, 1968, was valid in law ? " The ultimate question is whether the Gwalior estate left behind by His Highness Maharaja J. M. Scindia of Gwalior was his individual property or Hindu undivided family property. The relevant assessment years are 1970-71 to 1973-74. The Maharaja-a Hindu-died on July 16, 1961, leaving behind as legal heirs, Her Highness Maharani Vijaya Raje-a widow, Shri Madhavrao Scindia, a son, and Maharani Padmavati of Tripura, Princess Usha Raje, Princess Vasundhara Raje and Princess Yashodhara Raje-four daughters. The estate duty as well as income-tax returns were filed on the basis that the property was of Hindu undivided family. The Central Board of Direct Taxes obtained an opinion from the then Attorney-General, Shri C. K. Daphtary, in the estate duty assessment proceedings. He opined that the stand of the accountable person was correct, the said opinion was accepted by the Central Board of Direct Taxes and the estate duty assessment was completed on that basis. Following the same, the income-tax returns filed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noji was Mahadji, the illegitimate son. Illegitimacy was a normal bar to his succession, but considering the great qualities of leadership with which he was adorned, Peshwa Madhavrao confirmed him in the family Jagir. Mahadji left behind no son. In keeping with his wishes, Daulatrao, the grandson of Tukoji succeeded to the estate. Daulatrao entered into a treaty of friendship with the East India Company in which Inam lands are described as held by the family. Daulatrao died leaving behind no son. His widow adopted a son by name Mugatrao in accordance with the wishes of Daulatrao. The new name of Mugatrao was Jankojirao. He also died leaving behind no son. His widow Tarabai adopted a son by name Bhagirathrao who was named as Jayajirao. For his services in the mutiny, the British Government made over to Jayajirao several properties including lands. Jayajirao was succeeded by a son, Madhavrao. When Madhavrao died in 1925, the Maharaja, the only son ascended to the throne. (b) The Gwalior estate was a family property having its origin in Jagirs given to the family and the ancestors of Madhavrao had made accumulations and accretions to the estate on the basis of the nucleus of the anc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, that conduct may be assailed but on that basis the character of the property cannot be determined. The certificate issued by the President of India under article 366(22) is merely a recognition as Ruler of Gwalior. The said certificate is not concerned with the rights in private properties of the Ruler particularly when rights of third parties are involved. Hence, the findings of the Tribunal that the property was neither impartible nor subjected to the rule of primogeniture in the matter of succession is based on material on record and is binding on this court. There is yet another important angle to this case and it relates to the effect of the Hindu Succession Act. There can be no doubt that after 1956, Hindu succession is governed by the Hindu Succession Act which is a complete code on the subject. Sections 4(1) and 5(ii) of the Hindu Succession Act are reproduced here for ready reference, since they are vital to the issues. "4. Overriding effect of Act.-(1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imogeniture but not in all cases ; it is only where the estate descends to a single heir by reason only of the terms of the 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. Under the old law of succession an estate could descend to a single heir by the rule of primogeniture by reason of the terms of a grant or custom or usage. This was one of the features of impartible estates. In view of the restricted exclusion under this clause the rule of primogeniture now stands abolished even where primogeniture was recognised by the terms of a grant or custom or usage. Section 5(ii) only excludes from the operation of the Act, estates which descend by the rule of primogeniture in a limited class of cases." There can be no manner of doubt that section 5(ii) has been added in the Hindu Succession Act pursuant to article 362 of the Constitution, the object being to protect the guarantee given by the Government to the Rulers of India at the time of accession. That by the Constitution (Twenty-sixth Amendment) Act, 1971, the said article 362 has been subsequently omitted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by section 6 and other relevant provisions of the Hindu Succession Act under which the legal status of the property is clearly a Hindu undivided family. This takes us to the consideration of the case of Meramwalla [1968] Guj LR 609 (Guj), which has been the basis for the rethinking of the Department. The context was the dispute pertaining to the civil rights of parties in a civil court filed long before the Hindu Succession Act came into force. A perusal of the judgment will indicate that the effect of sections 4 and 5 of the Hindu Succession Act has not been considered in the said judgment, perhaps because the question did not arise. The whole context was different. That apart, there are certain striking distinguishing features which make the ratio of the said decision clearly inapplicable to the matter at hand. That was a case where a common ground was that the entire estate was in a territory over which the chief of the estate had sovereign power and the rule of primogeniture applied to the estate by a long custom up to the lapse of paramountcy. In that very decision, there are observations to the effect that the legal position would be different if the rule of primogenit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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