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TMI Blog1978 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... -law, constituted a Hindu undivided family. There was a partition in this family on March 22, 1954, by and under which Palaniappa Chettiar was allotted certain properties as and for his share and he got separated. This partition was recognised by the income-tax department under section 25A of the Indian Income-tax Act, 1922. Thereafter, Karuppan Chettiar, son of Palaniappa Chettiar, and his wife and their subsequently born sons and daughter constituted a Hindu undivided family which is the assessee in the present reference and has been assessed in that status. Palaniappa Chettiar, the father, died on September 9, 1963, leaving behind his widow, Anandavalli Achi, and Karuppan Chettiar, his son, who is also the karta of the assessee-Hindu undivided family, as his legal heirs. These two persons succeeded to the properties left by Palaniappa Chettiar under section 8 of the Hindu Succession Act and divided the same between themselves. In the assessments made on the assessee-Hindu undivided family for the assessment years 1966-67 to 1970-71, the Income-tax Officer included in the computation of the total income, the income received from the properties inherited by Karuppan Chettiar from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed standing counsel submitted that the earlier decision in Additional Commissioner of Income-tax v. Manicka Mudaliar would require reconsideration as the said decision had proceeded on the basis that there were only two decisions of the Allahabad and Assam High Courts and no decision taking a contrary view had been brought to the notice of the court. According to the learned standing counsel if the decision of the Gujarat High Court had been brought to the notice of the court, then possibly a different conclusion would have been arrived at. He brought to our notice also a decision of the Supreme Court in V. V. Narendranath v. Commissioner of Wealth-tax [1969] 74 ITR 190. It is not necessary to go into the question as to how far that decision would throw further light on the matter before us. It is enough for us for the present to state that the matter involves consideration of important questions of law in the light of the decision of the Gujarat High Court also. In these circumstances we think that the matter may be considered by a fuller bench and direct that the papers may be placed before the learned Chief justice for appropriate posting orders. JUDGMENT OF THE FULL BENCH T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties inherited by Karuppan Chettiar from his father, Palaniappa Chettiar. The assessee-family appealed to the Appellate Assistant Commissioner contending that the said properties did not belong to the Hindu undivided family as such but only to Karuppan Chettiar as an individual and consequently the income derived therefrom could not be assessed as the income of the assessee-Hindu undivided family. The Appellate Assistant Commissioner rejected this submission and thereafter the matter was taken on appeal to the Appellate Tribunal. The Tribunal, following a decision of the Allahabad High Court in Commissioner of Income-tax v. Ram Rakshpal Ashok Kumar [1968] 67 ITR 164, held that the properties did not form part of joint family properties so that the income therefrom could be assessed as the income in the hands of the family consisting of Karuppan Chettiar and his sons and other members. It is this order of the Tribunal which is sought to be challenged by the Commissioner of Income-tax by raising the question set out already. There is a direct authority on the question arising from the above facts of this court in T.C. No. 276 of 1972 (Additional Commissioner of Income-tax v. V. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Mysore High Court in Commissioner of Income-tax v. Smt. Nagarathnamma [1970] 76 ITR 352. But that court was concerned with section 6 of the Act and not with section 8 of the Act. Therefore, this decision is not helpful in answering the question. Before dealing with the Allahabad High Court decision and the Gujarat High Court decision, we would like to, refer to the salient provisions of the Act. Referring to the preamble to the statute, it is clear that what was intended by enacting the statute was to provide for intestate succession among Hindus. The preamble reads : " An Act to amend and codify the law relating to intestate succession among Hindus. " Now, turning to section 4 of the Act, we find that only a limited overriding is intended by the passing of the Act. Section 4(1)(a) says : (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 to have effect with respect to any matter for which provision is made in this Act. " It is seen from section 4(1)(a) that the same limitation is contained in section 4(1)(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs under class I and this is clear from the facts as already stated. The question is only, therefore, as to how those heirs take the property under section 8. If the mode of division provided by the section is different from that which obtained before the Hindu Sucession Act came into operation, in accordance with the principles of Hindu law in view of what is categorically stated in section 4 of the Act, it is section 8 of the Act that should prevail and not the principles of Hindu law. If there is difference in scope and effect regarding the mode or method of devolution that is provided in section 8, it is section 8 which should be applied and not the principles of Hindu law. We should, therefore, try to formulate what are the principles of Hindu law applicable in the circumstances of this case. This is a case where a person who had obtained the property under partition deed. His name was Palaniappa. When he died, his son, Karuppan, was alive. We are concerned with the property which Palaniappa had obtained in the partition. In that partition, Karuppan was also a party. We are concerned with the question of devolution of the property of Palaniappa which he obtained in the partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his individual and not the income of the Hindu undivided family consisting of himself and his son. main reliance in support of this conclusion was placed by the Allahabad High Court on the provisions of sections 6 and 8 of the Hindu Succession Act. The Allahabad High Court accepted the principle that if it had not been for the Hindu Succession Act, on the death of a father whatever was inherited by his son by way of succession became ancestral property in the son's hands and this ancestral property in the hands of the son belonged to the coparcenary or the joint Hindu family consisting of the son and his own male issue. " After discussing the matter at some length, the learned Chief Justice observed at page 422 : With respect to the learned judges of the Allahabad High Court, it is impossible to read into the words of section 8 any provision which interferes with the scheme of Hindu law as it prevailed prior to the enactment of the Hindu Succession Act. Neither section 6 nor section 8 nor section 30 affect this principle of Hindu law as to in what capacity or in what character the son would enjoy the property once he received it from his father in succession." Proceeding furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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