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TMI Blog1984 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a Hindu undivided family. The Income-tax Officer rejected his claim. In the years under reference (1967-68 to 1969-70) also, the assessee claimed the same status. The contention of the assessee was that on coming into force of the Hindu Succession Act in September, 1956, the impartible estate governed by the lineal primogeniture disappeared. Thus, all the incidents of a joint Hindu family became operative. The income of the estate became the income of the Hindu undivided family consisting of the assessee, his, wife, daughters, widowed mother and widowed grandmother. The Income-tax Officer rejected the claim of the assessee. His view was that the assessee had succeeded to the estate in the year 1950 as an individual and, therefore, he would be treated as such till succession opened after his death. The Appellate Assistant Commissioner on appeal held that with the passing of the Hindu Succession Act, the customary right of impartibility and lineal primogeniture in the matter of succession disappeared-excepting such estates as were saved by section 5 of the said Act. Other members of the joint family also got a right in the property and its income. He, therefore, held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... To this extent, the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains ...... and to this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered." It is plain from the law laid down by the Privy Council that the joint family of a Mitakshara Hindu family persisted all along and the estate retained its character of joint family property. Of course, the general law of the Mitakashara in regard to joint family property was superseded by the custom of impartibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts attaching to an impartible estate would continue to be enjoyed by him." On the basis of the above two cases, learned standing counsel submitted that the holder of an impartible estate cannot be divested of the estate of which he was possessed. According to him, section 4 of the Hindu Succession Act would remain inoperative and in abeyance till the death of the holder of the impartible estate, i.e., the assessee. I regret, I have considerable difficulty in accepting the submission urged on behalf of the Revenue. In Sundari v. Laxmi, AIR 1980 SC 198, the Supreme Court had the occasion to consider whether the provisions of section 4(1) read with section(2y of the Hindu Succession Act would remain in abeyance or not. Kailasam J., speaking for the court, after setting out the salient features of Aliyasanthana Kavaru, observed in paragraph 9, at page 201, as follows: " Section 4 of the Act gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard. The position thus is that the assessee was holding an impartible estate with the incident of lineal primogeniture till September, 1956, by custom not by grant. On the enactment of the Hindu Succession Act in September, 1956, the restraint on the members of the joint family disappeared. In terms of the law laid down by the Privy Council in Shiba Prasad Singh's case, AIR 1932 PC 216, there were four incidents of joint family property. Three of them had become eclipsed or were dormant by custom. They fell apart on the enactment of section 4 of the Hindu Succession Act. The shackles cannot persist till the death of the assessee. The Gujarat High Court had to deal with a similar situation in Pratapsinhji N. Desai v. CIT [1983] 139 ITR 77. Mehta J. with whom Divan C.J. concurred observed as follows (p. 87): " The clear effect of section 4 is that if there is any provision made in the Act in respect of any matter governed by the custom or usage of Hindu law previously, then the said provision would prevail and the previous Hindu law to the extent it related to those matters would stand nullified. The question, in the present reference, is whether any provision has been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act lays down who shall be deemed to be the owner of house property. Clause (ii) thereof lays down that the holder of the impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. It was submitted that the assessee having inherited the impartible estate of Ratu Raj, he must be deemed to be an individual owner of the properties in the estate including house property. The submission, with respect to learned counsel for the Department, is fallacious. Section 27(ii) deals only with property of the holder of an impartible estate. The assessee did inherit an impartible estate and was assessed accordingly for some years, but the impartible estate towards the end of 1956 evaporated under the impact of the Hindu Succession Act. In the assessment years, therefore, there was no impartible estate. The assessee was not the holder of an impartible estate and, therefore, the properties held cannot be treated as individual property of the assessee. In reply thereto, learned standing counsel submitted that if that be the view of the law, as I have enunciated, then section 27(ii) must be held to be a dead letter. Mr. Rajgarhia submitted that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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