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TMI Blog1983 (2) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... e bypassed his son, Chaturgirji, who had three sons, viz., Chandrabhangirji, Mukundgirji and Ghanshamgirji. . Maheshgirji died on January 30, 1949. His will was not probated. Chaturgirji filed a suit in the City Civil Court, Hyderabad, contesting the will and claiming the guruship in himself. A compromise was arrived at in this suit whereunder Ghanshamgirji renounced his guruship in favour of his father, Chaturgirji. Certain business assets and properties left by Maheshgirji were divided amongst Chaturgirji and his three sons on 31-10-1951. In respect of two business assets, a partnership was formed consisting of the father and three sons and the income from this firm was assessed individually in the hands of each of the partners. Chaturgirji died on December 24, 1956, intestate. The properties left by him were divided equally by his three sons. For wealth-tax purposes, the properties which devolved upon the assessee on the death of his father were assessed as his individual properties. But from the assessment year 1967-68 onwards, the assessee did not include these properties in his individual wealth-tax return. Instead, he filed a separate return for these properties in the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon his son of course, the son of the son, whether born before the death of the grandfather or later, had a right in this property, by birth. It did not matter whether these properties were obtained (by the grandfather) on a partition with his father/brother/son, or whether they were obtained under a will or a gift, or whether acquired by his own skill and exertions. In all these cases, the properties constituted his separate or self-acquired properties, as they may be called. On his death, they devolved upon his son. But, because these properties constituted ancestral properties in the hands of the son, the grandson had share in those properties by birth-whether he was born before the death of the grandfather, or thereafter. In other words, in the hands of the son, these properties constituted HUF properties vis-a-vis the grandson(s). In paragraph 43 of Mulla's Hindu Law (14th Edn.), dealing with the order of succession among Sapindas, s. Nos. 1 to 3, in so far as they are relevant, read as follows (p. 118 of 15th Edn.): "1-3. Son, grandson (son's son) and great-grandson (son's son's son), and (after 14th April, 1937) widow, Predeceased son's widow, and Predeceased son's Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her's estate, but as has been pointed out before, a distinction is made in this respect by Mitakshara itself. 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; vide Mayne's Hindu Law, 11th Edn., p. 336. It is obvious, however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his lifetime. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands." That this is the position in Hindu law is agreed to by both the counsel. The same statement of law occurs in Addl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to s. 9, the heirs specified in the Schedule in class I take simultaneously and to the exclusion of all other heirs. Similarly, the heirs mentioned in the first entry in class II are to be preferred to those in the second entry; and those in the second entry shall be preferred to those in the third entry and so on. Section 10 sets out the Rules according to which the properties, shall be divided among the heirs in class I of the Schedule. Section 19 says that if two or more heirs succeed together to the property of an intestate, they shall take the property per capita and not per stirpes unless otherwise expressly provided in the Act. It is also provided that they shall take the property as tenants-in-common and not as joint-tenants. It is relevant to notice that class I of the Schedule mentions the son but not son's son. The son of a predeceased son is mentioned but not the son of a son who is alive. It is true that this was also the position even prior to the Hindu Succession Act; but what makes the difference is the following features : (a) section 4(1)(a) declares that with respect to any matter for which provision is made by this Act, any text, rule or interpretation of Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal with this very question. Govindan Nair C.J. referred to the pre-existing position in Hindu law and to the relevant provisions of the Hindu Succession Act, in particular to s. 8, and observed thus (p. 530): " From this section, it is clear that when a male Hindu dies intestate, his property shall first devolve upon his heirs, being the relatives specified in class I of the Schedule and what is said in this section and in section 9 will show that among the heirs specified in the Schedule, those in class shall take simultaneously and to the exclusion of all other heirs ; those in the first entry in class II shall be preferred to those in the second entry those in the second entry shall be preferred to those in the third entry and so on in succession. The relatives specified in class II will get chance only if there is no heir of class I and if there is no heir of any of the two classes, the agnates of the deceased will get the chance, and, lastly, if there is no agnate, the cognates of the deceased will take the property. We are not concerned in this case with the effect of succession opening to relatives specified in class II, or to agnates or cognates. There are heirs under cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, the earlier interpretation of the Hindu law giving right by birth in such properties ceases to have effect, and on the further principle that, in construing a codification Act, the law which was in force earlier should be ignored and the construction should be confined to the language used in the new Act. It was held that s. 8 should be taken as a self-contained provision laying down the line of devolution of property of a Hindu dying intestate. This view has been reiterated in CIT v. Ratanlal [1982] 138 ITR 680 (MP). The conclusion arrived at by these courts is consistent with the one arrived at by us though it may be that, in the matter of reasoning, there may be some difference in approach and emphasis. The only other court which has taken a contrary view is the Gujarat High Court in CWT v. Harshadlal Manilal [1974] 97 ITR 86 (Guj), and more elaborately in CIT v. Dr. Babubhai Mansukhbhai [1977] 108 ITR 417 (Guj). The ratio of the Gujarat High Court's view is to be found in the following passage occurring at pp. 421 and 422. Divan C.J., speaking for the court, said : " It will be noticed that both section 6 and section 30 deal with the undivided share of a Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein, question No. 2 was to the following effect: " 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is justified in holding that the properties devolved on the deceased through a will were ancestral properties in which the deceased's minor son acquired an interest and accordingly only 1/8th value of the properties is includible in the 'estate passing' and not 1/4th share as adopted by the Assistant Controller of Estate Duty ? " This question was dealt with and answered in, the following paragraph, at p. 816 "The answer to the second question turns on the interpretation of the will dated March 18, 1936. The English translation of the will the relevant recital-speaks in the following words: 'The other half shall be enjoyed by my wife, Seshamma, for her lifetime and after her lifetime, the share that fell to her, in the upstair house, pati peradu, my adopted son, Suryarao's family shall have the rent of the immovable properties that fell, to my wife's share to my father-in-law, Manyam Surayya, or in his place his sons or grandsons with full rights of sale, gift etc. When succession opened or when the will became operative on the death o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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