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TMI Blog1974 (10) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... nherited the properties in question and other properties also which formed part of the impartible estate. The relevant assessment years for the purposes of this reference are 1965-66 and 1966-67, the years of accounts being S. Ys. 2020 and 202 1, respectively. The assessee was filing returns of his income as an individual right from the assessment year 1949-50 to the assessment year 1964-65, and he was assessed accordingly. For the assessment year 1965-66, the assessee filed his return of income as an individual. However, in the course of assessment proceedings, the assessee claimed a status as that of a " HUF ". It appears that by his letter of June 2, 1967, he contended before the ITO that he had ceased to be a ruler and that since the rule of primogeniture was no longer applicable to his properties, his estate ceased to be impartible. He further contended that his right in lands and villages was also abolished in 1957. There was no Gaddi to which the rule of primogeniture could apply and, therefore, in the circumstances, it was not correct to assess him as an individual. According to the assessee, he had inherited the properties from his father and, therefore, the said propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing two contentions: 1. The Tribunal wag clearly in error in holding that the assessee was not entitled to the status of a HUF as it has lost sight of appreciating the true effect of s. 5(2) read with ss. 4 and 6 of the Hindu Succession Act on the character of the estate involved in this reference. Precisely stated, the contention of the assessee was that the effect of the said statute was to abolish impartible estates except those which are expressly saved by s. 5(2) of the said Act. 2. The Tribunal has erred in not addressing itself to the question that by the operation of S. 5(2), the character of impartibility having gone, other rights of the members of the joint Hindu family qua the properties in question revived. On behalf of the Revenue, these contentions have been repelled by Mr. Kaji, the learned advocate appearing on behalf of the Revenue. His contention was that the effect of the Hindu Succession Act on the estate in question can be relevant only when succession opens after the demise of the last holder, and cannot be relevant for purposes of this reference in the lifetime of the holder. Neither S. 4 nor S. 6, nor other sections of the Hindu Succession Act, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility. In other words, the contention was that junior members had a present interest in the impartible estate and were entitled to share in the estate once impartibility was removed. In our opinion there is no justification for this argument. The law regarding the nature and incidents of impartible estates is now well settled. Impartibility is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estates take no right in the property by birth and, therefore, have no right of partition having regard to the very nature of the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to section 4 of the Madras Impartible Estates Act in the case of impartible estates governed by the Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee of his absolute ownership. The Tribunal, as stated above, did not go into the real question, whether the impartibility of the estate ceased or not and merely proceeded on the basis that the impartible estate is of the absolute ownership of its holder. The question of ownership of an ancestral impartible estate has been considered by the Supreme Court in State of U.P. v. Raj Kumar Rukmani Raman Brahma, AIR 1971 SC 1687. It has been held therein that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate, and if the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be part of the joint estate of the undivided Hindu family. Mr. justice Ramaswami (as he then was), speaking for the court, observed in para. 8 as under: " Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi [1932] LR 59 IA 331 ; AIR 1932 PC 216, it must be taken to be well-settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession.' " The Tribunal was, therefore, not justified in observing that the impartible estate in question, to which the assessee has succeeded on the death of his father by primogeniture, was of absolute ownership of the assessee. Mr. Kaji, the learned advocate on behalf of the Revenue, pointed out to us that what the Tribunal meant was that the income of the properties was of the absolute ownership of the assessee. Be that as it may, however, the real question, which has been raised and to which, as rightly contended by the learned Advocate-General on behalf of the assessee, the Tribunal ought to have addressed itself is, whether the estate involved in this reference ceased to be impartible or not. The important question raised on behalf of the assessee is, whether the Hindu Succession Act, 1956, has brought about a radical change in the rules of Hindu law relating to impartible estates. The Hindu Succession Act, no doubt, provides mainly for succession of a Hindu dying intestate. It also provides for succession of a male Hindu having interest in a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w except with respect to matters for which provision is made in the said Act. The contention of the assessee was that by the combined operation of s. 5(ii), read with ss. 4 and 6 of the Hindu Succession Act, the effect is that the character of impartibility of the estate having gone, the character of joint family property is regained and all the rights of the members in the said property qua the joint family property revived. In this connection, our attention has been drawn by the learned Advocate-General to the note preceding the Chapter relating to impartible property in Mulla's Hindu Law at p. 621. The relevant part of the note reads: " The Hindu Succession Act, 1956, has brought about radical changes in the rules of Hindu law relating to impartible property. The effect of that enactment is to abolish impartible estates save those which are expressly saved by s. 5(ii) of the same. Only estates which descend to single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Govt. of India or by the terms of any enactment passed before the commencement of the Act are exempted from the operation of the general law relating to successi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of the Schedule to the said Act, s. 5(ii) read with ss. 4 and 6 completely abrogate the impartible estate which after everything said and done is a creature of custom and also the rule of primogeniture which is the rule of succession in this estate. The learned Advocate-General, therefore, was right and Mr. Kaji, on behalf of the Revenue, also fairly conceded that the question required to be examined, whether the impartible estate in question ceased to be impartible or not. Mr. Kaji, however, reserves his right to contend that even if the estate loses its impartibility, the other rights of the members of the joint family as regards partition and the right to object to alienation would not be revived. In support of this contention, Mr. Kaji relied on the decision of this court in D.S. Meramwala Bhavawala v. Ba Shri Amarba Jethsurbhai [1966] 9 GLR 609. Two courses are, therefore, open to us, either to call for a supplementary statement of the case from the Tribunal to answer the questions which have been referred to us for our opinion or to decline to answer the questions raised by the Tribunal and to leave it to the Tribunal to take appropriate steps under the relevant section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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