TMI Blog1966 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ia ? " Both the learned counsel, for the assessee and the department, however, agreed that the fate of the case turns on the determination of the first question and accordingly they addressed us only on that question. They also agreed that the other two questions really did not arise in the case. The assessment years in question to which the reference relates are 1958-59, 1959-60 and 1960-61. The relevant previous years are the financial years preceding the three assessment years. The Tribunal has narrated the facts with reference to the assessment year 1958-59, which was typical of the three assessment years. The assessee was Thakur Hari Singh who was formerly the jagirdar of Hariadhana in Tehsil Bilara, district Jodhpur. The income of the assessee which was brought to tax in the assessment year 1958-59 was as follows : Income from property ---- 9,670 Income from securities ---- 350 Income from money-lending ---- 800 Income from savings banks ---- 191 Income from fixed deposits 2,040 ----------------- Total income 13,151 ----------------- It was common ground between the assessee and the department that the above income which arose under the several heads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his claim for the status of Hindu undivided family. The Appellate Assistant Commissioner observed that the properties had been inherited by the assessee from his father and they were in the nature of impartible properties governed by the law of primogeniture and, therefore, the assessee held them as his absolute properties with the result that the same were assessable in his hands as an individual. This view was taken in the subsequent assessment years also. The assessee then went up in appeal to the Appellate Tribunal. The Appellate Tribunal noted that in the former State of Jodhpur, property like the one that was held by the assessee was governed by the rule of primogeniture and that the junior members of the family were only entitled to be maintained by custom and to have an allowance which was called " Chhutbhai Bant ". Referring to the grant made by the father of the assessee to his younger son, Shri Ram Singh (vide annexure " A " on the record), it observed that there was no evidence to show that this grant in 1935 was made in recognition of any right in favour of Shri Ram Singh. It, therefore, inferred that the house properties had also been treated as being subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion that the income of the properties in the hands of the assessee was that of the impartible estate and, consequently, it could not be regarded as the income of a Hindu undivided family. In challenging the view taken by the Tribunal, learned counsel for the assessee, Mr. S. C. Bhandari, submits that the Tribunal was in error in thinking that there could be incorporation of self-acquired immovable properties with the impartible estate held by the assessee which, according to the learned counsel, was not an impartible estate by custom, but was a grant, though impartible, from the Rulers of the ex-jodhpur State. Without prejudice to this, the learned counsel submitted that there was no evidence to show that there was any intention at any time to incorporate the other immovable properties with the impartible estate by the erstwhile holders of the jagir or by the assessee. Learned counsel, while granting that the income of the jagir was income of an individual, proceeded to submit that it was like any other self-acquired property of the jagirdar and he could blend the same with the property of the Hindu undivided family of which he was a member along with his descendants. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, into the hotchpotch so that they could belong to the Hindu undivided family. Mr. Lodha placed a number of authorities before us to show as to in what manner a self acquired property could be impressed with the character of a Hindu undivided family and argued that the present case did not fulfil the required test. The cases cited by him were Commissioner of Gift-tax v. C. Satyanarayanamurthy, Duggirala Sadasiva Vittal v. Bolla Rattain, Keshvlal Lallubhai Patel v. Commissioner of Income-tax, R. Subramania Iyer v. Commissioner of Income-tax, Damodar Krishnaji Nirgude v. Commissioner of Income-tax M. K. Stremann v. Commissioner of Income-tax Commissioner of Income-tax v. M. M. Khanna A. Natesan v. Commissioner of Income-tax, Jai Narayan Jai Govind v. Controller of Estate Duty and Mallesappa Bandeppa Desai v. Desai Mallappa alias Mallesappa. Before we proceed to deal with the cases placed before us, we would like to address ourselves to the incidents of jagirs in the former State of Jodhpur and then see whether they afford any guidance in the matter. The Marwar Land Revenue Act was enacted in 1949 and came into force from April 6, 1949. As observed by this court in Akhey Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. The term " estate " has been defined by the Marwar Land Revenue Act, in section 4(iii) of the Act. According to this definition, the term " estate " means a mahal or mahals held by the same landlord and the definition of the term " mahal " is as follows : " 'Mahal' means (a) any area not being a survey number which has been separately assessed to land revenue, whether such land revenue be payable or has been released, compounded or redeemed in whole or in part and (b) any other area which the Government may by general or special order declare to be a 'mahal'." Thus, what is an estate is an area not being a survey number which has been separately assessed to land revenue. The term " survey number " need not detain us and it is sufficient to say that it is an area held by or intended to be settled with a holder under a separate assessment of land revenue in a khalsa village or land. Now, according to Chapter X, what devolves by the rule of primogeniture is the grant made by the ruler and " grant " according to section 172 means an estate. In other words, it is the area of land granted by the ruler that is dealt with in Chapter X, and it is that which descends to a single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Lordships of the Supreme Court reviewed the several decisions in Mirza Raja Pushpavathi Vijayaram v. P. Visweswar and, after referring to the Privy Council case, just referred, observed as follows : " Unless the power is excluded by statute or custom, the holder of a customary impartible estate, by a declaration of his intention, can incorporate with the estate, self-acquired immovable property and thereupon, the property accrues to the estate and is impressed with all its incidents, including a custom of descent by primogeniture. It may be otherwise in the case of an estate granted by the Crown subject to descent by Primogeniture." (Underlining is ours). Their Lordships have thus made it quite clear that the holder of a customary impartible estate can incorpoarte his self-acquired immovable property with the impartible estate by a declaration of his intention. But their Lordships made it absolutely clear that it may be otherwise in the case of an estate granted by the Crown subject to descent by primogeniture ; Regarding incorporation, their Lordships then observed as follows : " It is clear that incorporation is a matter of intention and it is only where evidence has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the law of primogeniture. It seems to be quite manifest from the above that there was a custom whereby the impartible estate itself and the properties, movable and immovable, acquired out of the income from the impartible estate devolved on the eldest son by the law of primogeniture. The fact that the original impartible estate and the accretion thereto out of its income were never partitioned and descended to and were held by the eldest son in the eldest line leads to a strong presumption that not only was succession of the original impartible estate governed by the law of primogeniture but the succession to the properties acquired out of the savings and income of the impartible estate was also governed by the same law." By the reasoning embodied in this passage, the Appellate Assistant Commissioner reached the conclusion that the properties inherited by the assessee from his father were in the nature of impartible properties or otherwise governed by the law of primogeniture. It has, however, been overlooked by the Assistant Commissioner that this was not a partition between the two brothers. If it were so, then the disparity in the shares of the younger brother and the elde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the income derived by a holder of an impartible estate is the income of an individual. Mr. Lodha has also candidly conceded that if the property cannot be said to have been incorporated with the impartible estate, then it could be treated by the holder as his self-acquired property and in that situation be would be free to blend it with the Hindu undivided family properties by expression of a clear intention. Mr. Lodha also did not dispute the position that if the properties, which were in the hands of late Thakur Jaswant Singh, did not form part of the impartible estate, then on succession ... by the assessee they became the joint family properties vis-a-vis the sons of the assessee. In view of this, we need not refer to the several cases that have been cited by both the learned counsel. The bone of contention between the learned counsel ultimately centred on the blending of these properties with the property of the Hindu undivided family. We may now refer to the cases that were cited on this aspect of the case. In R. Subramania Iyer v. Commissioner of Income-tax, the learned judges observed as follows : " Under the Hindu law, there is no necessity for joint family pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded family for quite a number of years. In the assessment year preceding the assessment year we are considering, the department had accepted the status of the assessee as that of a Hindu undivided family. Therefore, the course of conduct of the assessee as also what he had declared in the returns show that he had expressed the intention about this property being treated as the property of the Hindu undivided family. According to rule 19A of the Income-tax Rules, the return has to be verified and the assessee has to sign the same as a solemn document. Mr. Lodha strenuously contended that the mere giving of one's status in the return is not tantamount to a declaration of an intention to blend one's property with that of the Hindu undivided family. In a solitary instance this may not be so, because the assessment is done on the basis of the income of the previous year and the declaration in the return alone will be of no help for judging the status of the assessee in the year of account, but when this is repeated over a pretty long time and if, in the preceding year, the department itself accepted that return, then we fail to see how it can be predicated that the assessee had not expr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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