Mehta, J.
1. We are concerned in this reference with assessment years 1967-68 to 1971-72, the appropriate previous years being Samvat years 2022 to 2026, respectively. This very Bench was concerned with the questions arising in the course of assessment years 1965-66 and 1966-67 pertaining to the assessment of Shri Pratapsinhji N. Desai, the present applicant in this reference, who died on November 21, 1978. It would be necessary to refer shortly to the questions which had arisen in the course of assessment years 1965-66 and 1966-67, pertaining to the status of Shri Pratapsinhji N. Desai.
2. The question which had arisen in the course of assessment years 1965-66 and 1966-67 was in connection with the status of the said Shri Pratapsinhji. The father of the said Pratapsinhji was the ruler or Darbar of the erstwhile State of patdi in Saurashtra. He died in the year 1941, and Pratapsinhji ascended to the gaddi and became the ruler or darbar of the said State of Patdi. He inherited certain immovable properties on the demise of his father, Narendrasinhji, which are involved in both these references and situate in the City of Ahmedabad as well as in the town of Viramgam and in different villages of Viramgam Taluka including Patdi, as also movable properties comprising jewellery, etc.
3. Pratapsinhji was making a return of his income in the status of 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, he also filed his return as an individual. However, in the course of the assessment proceedings, the assessee claimed the status of a HUF (hereinafter called as 'the HUF') since by his letter of June 2, 1967, he had contended before the ITO that he ceased to be a ruler and that the rule of primogeniture was no longer applicable to his properties, and his estate ceased to be impartible. He also contended in the said letter that 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. Since he inherited the properties from his fathers Narendrasinhji, they should be treated as a part of the estate of his HUG consisting of himself, his wife and his seven sons. He, therefore, requested that he should be assessed in the status of a HUF.
4. The ITO concerned was not impressed with this contention as he was of the opinion that the properties and the estate in question were in the absolute ownership of Shri Pratapsinhji and, therefore, income from the said properties was his individual or separate income, he was, therefore, assessed in the status of an individual.
5. In appeal, however, the AAC accepted the claim of Shri Pratapsinhji to assess him in his status of a HUF.
6. The Revenue, therefore, carried the matter in appeal before the Appellate Tribunal. The Tribunal reversed the order of the AAC. Since in its opinion the properties continued to be the absolute properties of Shri Pratapsinhji and the question whether the estate would cease to be impartible would not assume significance till his death. The Tribunal further held that merely because the properties ceased to be impartible, they would not be impressed with the character of a joint family property so as to divest the assessee of his absolute ownership. The Tribunal, therefore, did not go into the question whether the impartibility of the estate ceased or not. The Tribunal, therefore, allowed the appeal of the Revenue and remanded the matter to the AAC for deciding the question which he had kept open in appeal.
7. Pratapsinhji, therefore, sought reference to this court which was granted by Income-tax Reference No. 38 of 1973 (Darbar Pratapsinhji v. CIT (see p. 96 infra), where the questions referred to this court were as to whether the properties involved in the said reference were the individual or separate properties of Pratapsinhji and whether the income derived from the said properties was his personal income and whether his status should be that of an individual.
8. This very Division Bench, by its order of October 3/4, 1974, referred to the relevant legal position about impartible estates and the effect of the Hindu Succession Act on such estates. In the opinion of this Bench two questions were relevant for answering the reference : (i) who was the owner of the impartible estate in question and (ii) Did it cease to be impartible at any time, and, if so, what is the effect of such cessation The Division bench considered various authoritative pronouncements of the Supreme Court and the Privy Council in connection with the characteristics of an impartible estate and also to the relevant sections of the Hindu Succession Act, namely, ss. 4, 5, and other relevant provisions connected therewith. The Division Bench emphasised and noted certain observations made in Mulla's Hindu Law by Desai and also Hindu Law of Succession by S. V. Gupte, where it was observed that the Hindu Succession Act, 1955, had brought about a radical change in the rules of Hindu law relating to impartible estates and its effect as to the abolition of impartible estates save those which were expressly saved and excluded by s. 5(ii) of the Hindu Succession Act. Since it was common ground between the parties that the Tribunal has not gone into the question, whether the impartible estate in question ceased to be impartible or not, the Division Bench found itself funable to answer the question and. Therefore, declined to answer the questions referred to it for its opinion. This court, therefore, left the matter to the Tribunal to examine the question whether the said estate has lost its impartibility, and if so, from which year with reference to the provisions contained in ss. 4, 5 and 6 of the Hindu Succession Act after ascertaining necessary relevant facts and more particularly what was precisely the custom of the said impartible estate, the custom of the rule of primogeniture, the terms of the convenant entered into by the rulers of the erstwhile State of Kathiawar and whether the properties in question were part of the Gaddi.
9. In view of the course which this court had adopted in the aforesaid Income-tax Reference No. 38 of 1973 (Darbar Pratapsinhji v. CIT) (see p. 96 infra), the Tribunal remanded the matter to the AAC for determining the questions in the light of the judgment of this court.
10. The AAC has accepted the claim of the assessee to the status of a HUF and held that the income from the properties in question was the income of the HUG and not liable to be taxed in the hands of the assessee as an individual.
11. The department has preferred an appeal from the said order of the AAC and the appeal is kept pending till this reference is determined by this court.
12. For the immediate succeeding assessment years, to those with which we were concerned in the aforesaid Income-tax Reference No. 38/73, namely, 1967-68 to 1971-72 which are the subject-matter of the present reference before us. The same question regarding the status of the said Pratapsinhji arose before the ITO, more particularly because of two circumstances : In the first place, the assessee relied on his letter of June 2, 1966, addressed to the ITO, Ahmedabad, to assess him in the status of a HUF for his income of the estate inherited by him from his father, Narendrasinhji, being the eldest son under the rule of primogeniture and, consequently, having an impartible character inasmuch as the said rule ceased to be effective as a sequel to the abolition of the Gaddi in 1948, and Inam rights in 1957. Secondly, the assessee relied on the two partial partitions effected on October 13, 1972, and January 1, 1973, in respect of the Immovable properties situate at Ahmedabad and patdi in Viramgam taluka of Surendranagar district, respectively. The ITO refused to entertain the claim of the assessee to be assessed in the status of a HUF and assessed the income from the said properties in his hands as an individual.
13. In appeal, however, the AAC accepted the claim of the assessee to be assessed in the status of a HUF. The department, therefore, carried the matter in appeal before the Appellate Tribunal from the said order of the AAC and in the course of the hearing of the appeal it was contended on behalf of the department that the Tribunal had reversed a similar order of the AAC made for the assessment year 1965-66 and negatived the claim of the assessee to the status of a HUF. On behalf of the assessee, it was urged that there were additional circumstances to support his claim which have ensued subsequent to the said order of the Tribunal. He, inter alia, relied on the facts of the above-mentioned letter of June 2, 1967, to the ITO and the Hindu Succession Act, having been placed on the statute book in 1956, with the result that the estate ceased to be impartible and all the attributes of joint family property revived in all their vigour. And, in any view of the matter, the statement in the letter of June 2, 1967, in effect and substance, impressed the estate, assuming it to be the absolute and individual property of the assessee, with all the characteristics of joint family property. The Tribunal rejected both these contentions of the assessee and held that the estate did not cease to be impartible inasmuch as the convenants entered into by the rulers of the erstwhile Kathiawar State ensured and guaranteed the rule of primogeniture which was neither repealed nor disturbed by the Hindu Succession Act. The alternative contention was rejected also. As, in the opinion of the Tribunal, no one could impress the character upon a thing which it already possessed, the Tribunal allowed the appeal of the department and rejected the claim of the assessee to the status of a HUF.
14. At the instance of the assessee, therefore, the following two questions have been referred to us for our opinion, of which question No. 1 is a common question arising for all the assessment years under reference while question No. 2 is the one arising for the assessment years 1968-69 to 1971-72 only :
'(1) Whether, on proper construction of the provisions in the covernants entered into by the rulers of Kathiawar as contained in the white paper of the States and the provisions of s. 5 of the Hindu Succession Act, the properties held by the assessee, the income from which has been included in the assessment and which admittedly formed part of the impartible estate inherited by him on the death of his father under the rule of primogeniture, ceased to be governed by the law applicable to impartible properties and acquired the character of joint Hindu family properties under the normal rule of Hindu law and, therefore, the Tribunal was not correct in law in holding that the income derived from such properties were the personal or individual income of the assessee and not of his Hindu undivided family
(2) Whether, the Tribunal was correct in law in holding that the question of impressing the properties held by the assessee with the character of joint Hindu family property or treating them as such by his unilateral action by his letter and returns submitted does not arise because the properties are held to belong to the joint Hindu family and nothwithstanding that the properties so belong to the HUF, they are, for all purposes, to be regarded as the individual and separate property of the present holder and the income derived therefrom exclusively belongs to him as his individual property ?'
15. Before we deal with the contentions raised by the learned Advocate-General, appearing on behalf of the assessee, it would be profitable to shortly refer to what the Tribunal has found as a matter of fact in this reference. The Tribunal has found that there was no dispute with regard to the fact that the properties, the income of which has been assessed in the hands of the assessee, are part of the impartible estate which the assessee inherited under the rule of primogeniture on the death of his father in 1941. The Tribunal further found that the question as to whether the properties ceased to be impartible on the merger of Kathiawar State in 1948 and the abolition of the assessee's right over land in 1957 in the absence of any express provisions specifically abolishing impartible estates would be a matter of construction as to the effect of the merger and abolition of the assessee's right over the land by the relevant legislation or an interpretation thereof and Civil Appeal No., not be said to fall within the realm of a finding of fact. The Tribunal also found, on a consideration of the relevant terms of the covenant entered into by the erstwhile rulers of Kathiawar State that the said covenant. far from abolishing the custom of impartibility or rule of primogeniture, seeks to ensure and guarantee the same, and no material or evidence was placed to show that the custom of impartibility or the rule of primogeniture was, in fact, done away with. The Tribunal found that certain parts of the estate or properties representing the interests and rights of the assessee over the lands and certain villages have been abolished. Even then the properties in question, in the opinion of the Tribunal, continued as impartible estate of the assessee and the Hindu Succession Act did not effect any change in the legal position in this respect. It is in the context of these findings that the learned Advocate-General has addressed us at length. He broadly urged the following two main contentions :
(1) The properties of the assessee in question are admittedly HUF properties but he was filing his return all along up to assessment year 1966-67 as an individual since he inherited the properties under the rule of primogeniture. However, on the coming into force of the Hindu Succession Act, the customary rule of primogeniture stood abrogated and, therefore, the estate in question revived all its attributes and incidence of joint family properties and. Therefore, the Tribunal was in error in holding that the estate continued to be an impartible estate.
(2) In any case, having regard to the conduct of the assessee as evidenced in the letter June 2, 1967, and the two partial partitions effected in October, 1972, and January, 1973, he decided to treat the said estate as a joint family property in his lifetime since all the heirs were entitled to succeed as the estate had lost its impartible character.
16. In support of his second alternative contention, he relied on a number of decisions to which we shall refer at the appropriate time.
17. It is a matter of surprise that the Tribunal reached the conclusion in spite of the principles clearly laid down and indicated in our earlier judgment while disposing of Income-tax Reference No. 38/73 (Darbar Pratapsinhji v. CIT) (see p. 96 infra) pertaining to assessment year 1965-66. That the estate continued to be an impartible estate, it is not necessary for us to trace the entire case law on the subject of impartible estates, but it would be sufficient for the present purpose to refer to one decision of the Supreme Court where the entire legal position as to the nature of impartible estates has been succinctly stated.
18. In State of U.P. v. Raj Kumar Rukhmini Raman Brahma AIR 1971 SC 1687, a question arose whether a gujaranama executed by malgujar, who was the proprietor of an impartible estate which he inherited, being the eldest son of the Raja, was hit by s. 23(1)(a) of the U.P. Zamindari Abolition and Land Reforms Act. 1950, since it granted a right to maintenance to the younger sons who were given a reasonable share of the estate in lieu thereof. In that context, Ramaswami J., speaking for the court, stated the exact nature of impartible estates under the Hindu law. He held as under (p. 1690) :
'8. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi , it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or the exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights : (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist, the second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari [1888] LR 15 IA 51; ILR 10 All 272 and the first Pittapur case [1899] LR 26 IA 83; ILR 22 Mad 383 (PC). The right of maintenance and the right of survivorship, however, still remain and it is by reference to these rights that the property. Though impartible has, in the eye of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis. Unlike spes successionis the right of survivorship can be renounced or surrendered. It was held by the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal , that the right of maintenance to junior members out of an impartible estate was based on joint ownership of the junior members of the family. In that case, lord Blanesburgh, after stating that the Judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh [1921] LR 48 IA 195; AIR 1921 PC 62, had definitely negatived the view that the decisions of the Board in Sartaj Kuari's case [1888] LR 15 IA 51; ILR 10 All 272 and the First Pittapur case [1899] LR 26 IA 83; ILR 22 Mad 383 (PC were destructive of the decided onctrine that an impartible zamindari could be in any sense a joint family property, went on to observe :
'One result is at length clearly shown to be that there is no reason why the earlier judgments of the Board should not be followed, such as for instance the Challapali case (Raj Yarlagadda Mallikarjuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu [1900] LR 27 IA 151; ILR 24 Mad 147 (PC), which regard their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family, with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession.' Lord Blanesburgh said : 'The recent decisions of the Board constitute a further landmark in the Judicial exposition of the question at issue here. While the power of the holder of an impartible raj to dispose of the same by deed (Sartaj Kuari's case [1888] LR 15 IA 51 ) or by will (the First Pittapur's case [1899] LR 26 IA 83 and Pratap Chandra Deo v. Jagdish Chandra Deo . Remain definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As pointed out in Baijnath Prasad Singh's case [1921] LR 48 IA 195; AIR 1921 PC 62, when before the Allahabad High Court, the junior members of a great zamindari enjoy a high degree of consideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family. And until the decisions above referred to beginning in 1888 supervened they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zamindari in possession.'
19. The full connotation of the term 'impartible estate' has been summarised in Mulla's Hindu Law by S. T. Desai, 14th edition. In para. 584, the following principles have been digested :
'584. Impartible property. - (1) Property, although partible by nature, may, by custom, or by the terms of a grant by Government, be impartible, in the sense that it always devolves on a single member of the family to the exclusion of the other members.
(2) An impartible estate may be ancestral, or it may be self-acquired.'
In para. 587 of the same book, it has been digested as under :
'587. Impartible property whether coparcenary property. - An impartible estate is not held in coparcenary though it may be joint family property. But at times it is referred to as coparcenary and a distinction is drawn between present rights, that is, the right to demand a partition and the right to joint enjoyment, and future rights, in the case of an impartible estate, the right to partition and the right of joint enjoyment are from the very nature of the property incapable of existence, and there is no coparcenary to this extent. No coparcener, therefore, can prevent alienations of the estate by the holder for the time being either by gift or by will nor is he entitled to maintenance out of the estate, But as regards future rights. That is, the right to survivorship, the property is to be treated as coparcenary property, so that on the death intestate of the last holder, it will devolve by survivorship according to the rules stated in 591 below. The right of a junior member to succeed to the estate by survivorship is not a mere spes successionis but a right of property which can be transferred.
The incidents of impartible estate were stated by the Privy Council in Rani Prayag Kumar Debi's case [1932] LR 59 IA 331 and as the Supreme Court observed in the undermentioned case (Thyagasundaradoss Thevar v. Sevuga pandia Thevar. : AIR1965SC1730 and Pushpawati v. Visweswar AIR 1964 SC 118), a full statement of the law on the subject is to be found there. The law as there stated was reaffirmed in subsequent decisions of the Privy Council. Some of the rules relating to the nature and incidents of an impartible estate and the right of survivorship were summarised by the Supreme Court in a recent decision (Krishna v. Sarvagna Kumara Krishna : [1970]3SCR88 and State of U.P. v. Rukhmini Raman, AIR 1971 SC 1687).'
20. It is clear from the settled legal position stated above that the property. Though partible by nature, may, by custom or terms of a Government grant, be treated as impartible in the sense that it always devolves on a single member of the family to the exclusion of others. If the custom or the grant, as the case may be, is not clear as to on which single heir of the last holder the property should devolve. The property will go by the rule of primogeniture. The real question to which we directed, in our earlier decision, the Tribunal to address to and answer it was, whether the estate in question was excluded by the operation of s. 5 of the Hindu Succession Act and, therefore, not abolished. As a matter of fact we had set out two passages in our earlier decision to indicate that the impartible estate, except those recognised by s. 5(ii) of the Hindu Succession Act, ceased to be impartible. Before referring to those paragraphs we will read the relevant sections of the Hindu Succession Act so as to decide whether the observations which we have digested in our earlier decision from the book of Mulla's Hindu law by S. T. Desai and the Hindu Succession Act by Gupte were warranted in view of the provisions contained in the said sections.
21. The material parts of ss. 4 and 5 of the Hindu Succession Act, 1956, as far as relevant for the purposes of this reference, provide as under :
'4. Overriding effect of Act. - (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...'
'5. Act not to apply to certain properties. - This Act shall not apply to - ... (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the term of any enactment passed before the commencement of this Act...'
22. Section 6 provides for devolution of interest in the coparcenary property. Section 8 provides for the general rules of succession in case of males. We are not concerned with the other sections of the Hindu Succession Act for the purpose of this judgment. The clear effect of s. 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 the Act with reference to the rule of inheritance by a single heir. If any provision is made contrary to classical Hindu law in that behalf in any of the sections of the Hindu Succession Act, that provision would prevail against the earlier law as ordained by custom, usage or interpretation of Hindu law as in force immediately before the commencement of the Act. The effect of s. 5(ii), read with s. 4, is that any custom or usage which enjoined the devolution of an estate on a single heir unless it is by the terms of a convenant or agreement entered into by a Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of the Hindu Succession Act, would stand repealed. Section 5(ii) saves and excepts only that estate which descends to a single heir by the terms of any convenant or agreement entered into by the ruler of an Indian State with the Govt. of India, or by the terms of any enactment passed before the commencement of the Hindu Succession Act. In other words, the conjoint reading of ss. 4 and 5
23. drives us to the conclusion that any custom or usage, which enjoins the devolution of an estate on a single heir is no more effective, except in those cases where in respect of an estate such a descent is to a 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 and terms of an enactment passed before the commencement of the Hindu Succession Act.
24. What are the principles governing succession to an impartible estate has been considered by the Supreme Court in Dayaram v. Dawalatshah. : [1971]3SCR324 . The contest in the said matter was between the descendants of the two branches of the original holder of the impartible estate, in that context, Shah C. J., speaking for the court, held as under in para. 15 at p. 686 :
'15. On the death of Amarshah, there were two male relatives : they were Pratapshah. Father of the plaintiffs, and the 1st defendant, Dayaram. The contest between them had to be adjudged in the light of the rules of lineal primogeniture governing an impartible estate which are well established : Succession is governed by the rules which govern succession to partible property subject to such modifications only as flow from character of the impartible estate; the only modification which impartibility suggests in regard to the right of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogeniture furnishes a ground of preference'.
25. Rule of primogeniture may be again general or lineal but ordinarily an impartible estate is governed by lineal primogeniture, rather than general (vide Sahebgouda v. Basangouda : (1931)33BOMLR580 and Baijnath Singh v. Tej Bali Singh [1921] LR 48 IA 195. Unless, therefore, a particular estate the devolution of which is to a single heir is saved and excepted under s. 5(ii) of the Hindu Succession Act, it cannot be claimed successfully that that estate continues to be impartible. In other words, if a covenant or an agreement entered into by the ruler of any Indian State with the Govt. of India or by any enactment passed before the commencement of the Hindu Succession Act recognises the devolution of an estate to a single heir, then only that estate would be outside the purview of the Hindu Succession Act. If it is within the purview of the Hindu Succession Act, as not being excepted under s. 5(ii) of the said Act, the custom or usage about the impartibility of the estate would not continue to grant protection to that estate after the Hindu Succession Act was put on the statute book. The Tribunal, in our opinion, was, therefore, clearly in error in not appreciating, in the first instance, this aspect of the question.
26. In Hindu Law of Succession by S. V. Gupte, 2nd Edn., in the commentary on clause (ii) of s. 5 of the Hindu Succession Act, the learned author has observed as under at p. 464 :
'77. Certain specified impartible property excluded. - The second category of property excluded from the operation of this Act is any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act. The object is to exclude from the operation of the Act succession to the estate which goes by the rule of primogeniture but not in all cases; it is only where the estate descends to a single heir by reason only of the terms of the covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act. Under the old law of succession, an estate could descend to a single heir by the rule of primogeniture by reason of the terms of a grant or custom or usage. This was one of the features of impartible estates. In view of the restricted exclusion under this clause the rule of primogeniture now stands abolished even where primogeniture was recognised by the terms of a grant or custom or usage. Section 5(ii) only excludes from the operation of the Act estates which descend by the rule of primogeniture in a limited class of cases.'
In para. 81 of the same book at p. 466, the learned author has observed as under :
'81. Impartible estates abolished. - Thus barring the impartible and other estates mentioned in clauses (ii) and (iii) of s. 5. succession to all other impartible estates would be governed by this Act; the old rule of succession by single heir stands thus abrogated.'
It is pertinent to note here that at foot-note (r) at p. 464 of Gupte's Hindu Law of Succession. The following remark is found :
'(r) Under the original Bill, every estate which descended to a single heir by a customary rule of succession or by the terms of any grant or enactment, that is to say, all the impartible estates were sought to be excluded from the Act. Under the Act, however, only a specific class of impartible property is now excluded. All other impartible property would be governed by this Act.'
To the same effect is the observation to be found in Mulla's Hindu Law, at p. 621, which is as under :
'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 section 5(ii) of the same..........'
27. In view of this clear legal position which can be spelt out by a mere reading of the relevant sections, we are of the opinion that the only question which requires to be considered is, whether the estate with which we are concerned in this reference has been saved and excepted under s. 5(ii) of the Hindu Succession Act. In order to answer this question, we have to examine what is provided in the covenant entered into between the rulers of the erstwhile States of Kathiawar. The said covenant is to be found at p. 239 of the volume of the White paper on Indian States, issued by the Govt. of India in the Ministry of States. The covenant was entered into for purposes of implementing the resolution of the erstwhile rulers of certain States of Kathiawar to entrust to a Constitutent Assembly consisting of elected representatives of the people, the drawing up of a democratic Constitution for that State within the framework of the Constitution of India and to secure for that purpose the establishment of a State comprising the territories of the numerous States, Estates and Talukas in Kathiawar with a common executive, legislature and judiciary. Article VI of the covenant enjoined that the ruler of each covenanting State would, as soon asmay be practicable, and in any event not later than April 15, 1948, make move the administration of his State to the Raj Pramukh, with the result that all rights, authority and jurisdiction belonging to the ruler which appertained, or were incidental, to the Government of the covenanting State would vest in the United States of Kathiawar, as it was formerly called. And also all the assets and liabilities of the covenanting State would be the assets and liabilities of the United State of Kathiawar of the said new State. Article X entitled the ruler of each covenanting State to receive annually from the revenue of the United State a certain sum by way of his privy purse. Article XI entitled the ruler of each covenanting State to the full ownership, use and enjoyment of his private properties as distinct from State properties. Articles XII and XIII are relevant for purposes of this reference and, therefore, they are reproduced in extenso :
'Article XII. - The ruler of each covenanting State. As also the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the August 15, 1946.
Article XIII-(1) The succession, according to law and custom, to the Gaddi of each covenanting State, and to the personal rights, privileges, dignities and titles of the ruler thereof, is hereby guaranteed.
(2) Every question of disputed succession in regard to a covenanting State shall be decided by the council of rulers after referring it to the high Court of Kathiawar and in accordance with the opinion given by that High Court.'
28. The other articles are not material for the present purposes. Article XIII, inter alia, ensured and guaranteed the succession to the Gaddi of each covenanting State. According to law and custom. We have not been able to appreciate how the Tribunal reached the conclusion that this covenant has ensured and guaranteed the rule of primogeniture for succession to all other properties. Rule of primogeniture, as stated above, may be general or lineal and by and large the lineal rule of primogeniture would govern the question of succession to impartible estates. Article XIII, in our opinion, only guaranteed the succession to the Gaddi of each covenanting State according to the law and custom. In our opinion, therefore, it is absolutely unwarranted to read in this article that the rule of primogeniture has been guaranteed in general for succession to all types of estates by the descendants of the erstwhile rulers of Kathiawar. The learned Advocate-General for the assessee urged that s. 5(ii) of the Hindu Succession Act exempts only that estate which descends to a 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 any enactment passed before the commencement of the Hindu Succession Act, and in his submission if the terms of the relevant covenant or the agreement do not prescribe devolution of a particular estate to a single heir. The benefit of the exception is not available, there is considerable force in this contention of the learned Advocate-General, but, in our opinion, this larger question is not required to be gone into and determined since art. XIII of the covenant, with which we are concerned in this reference. Guarantees only that law or custom of succession which was applicable to the Gaddi of each covenanting State. It did not recognise the rule of primogeniture for succession to all and every estate of the rulers of Kathiawar, much less specify the estate which descended to a single heir by the terms of the said covenant or agreement. It should be noted at this stage that the Constitution (26th Amend. Act), 1971, by its s. 3 introduced art. 366 by which the recognition granted to the rulers of Indian States ceased and the privy purses were abolished. This 26th Amendment was an event of historical importance and it is really surprising how the Tribunal overlooked such a significant event in the history of this country and reached the conclusion that since art. XIII guaranteed the law and custom of succession to the Gaddi, all estates, whatever they may be, were impartible estates, the succession to which was governed by the rule of primogeniture. In our opinion. The Tribunal clearly erred in construing this article and reaching the conclusion as it did in clear disregard of the apparent provisions contained in ss. 4 and 5 of the Hindu Succession Act, and the effect thereof.
29. It was contended on behalf of the Revenue before us that assuming that the conjoint effect of ss. 4 and 5 of the Hindu CHF Succession Act is to abolish all impartible estates, save and except those which are within the terms of s. 5(ii) of the Hindu Succession Act, even then, the properties involved in this reference, which have been inherited by the assessee, Pratapsinghji Desai, by the rule of primogeniture. Continued to be impartible till the succession opening under the Hindu Succession Act. In other words, it was contended that the impartible estate, though abolished by the Hindu Succession Act, would continue during the lifetime of its holder since the Succession Act applies only to the succession opening after the Hindu Succession Act was put on the statute book, that is, on June 17, 1956, we are afraid we cannot agree with this submission made on behalf of the Revenue having regard to the clear provisions made in s. 4 in that behalf. Section 4 gives an overriding effect to the Act over 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 the Act. Section 4(1)(a) prescribes that save as otherwise expressly provided in the Hindu Succession Act, 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 the said Act 'shall cease to have effect with respect to any matter for which provision is made in this Act'. On a plain reading of this sub-s. (1)(a) we are unable to agree with the contention urged on behalf of the Revenue that the classical Hindu law as contained in the custom or usage would continue to be in operation even though a contrary provision has been made in that behalf in the Hindu Succession Act, till the succession opens after the said Act coming into force. This is plainly against the provision made in s. 4(1)(a) of the said Act and would lead to a number of absurd results which we do not think the Legislature could have provided for. The view which we are taking is fortified by three decisions of the Supreme Court, the first is in R.B.S.S. Munnalal v. S. S. Raj Kumar, AIR 1962 SC 1493. The Supreme Court in that case was concerned with the question as to what is the exact connotation of the expression 'property' in s. 14(1) of the Hindu Succession Act. The court ruled that the expression 'property' should be given the widest connotation so as to include the share declared by a preliminary decree for partition in favour of a Hindu female, in that context, the Supreme Court referred to s. 4(1)(a) of the said Act and observed as under at p. 1500 :
'Manifestly the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act.'
30. The second decision which has taken a still clearer view on this aspect of the question is in Punithavalli Ammal v. Minor Ramalingam : [1970]3SCR894 , the Supreme Court in that case was concerned with the doctrine of relation back as to whether an adopted son acquired all the rights of an aurasa son and whether those rights related back to the date of the death of the adoptive father so as to circumscribe the rights of a Hindu widow which she acquired under s. 14 of the Hindu Succession Act. Hegde J., speaking for the court, ruled as under : (pq 1731)
'4. It is undisputed that the fiction of relation back in the case of adoption under Hindu law is based on Hindu law texts or rule or at any rate it is based on interpretation of Hindu law. Therefore, that rule ceased to have effect from the date the Act came into force with respect to any matter for which provision is made under the Act.'
31. In Sundari v. Laxmi : [1980]1SCR404 , the Supreme Court was concerned with the effect of the Expln. to s. 7(2) of the Hindu Succession Act on the undivided interest in the property of a Hindu in Aliyasanthana, Kutumba or Kavaru, and whether the members of such a family would be deemed to have been entitled to it absolutely. Kailasam J., speaking for the court, briefly referred to the salient features of Aliyasanthana and Kutumba and observed as under at p. 201 in para. 9 :
'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 commencement of this Act ceases to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. It is, therefore, clear that the provisions of Aliyasanthana law whether customary or statutory will cease to apply. In so far as they are inconsistent with the provisions of the Hindu Succession Act.'
32. Same view has been taken by the Punjab High Court in two decisions in (1) Smt. Taro v. Darshan Singh AIR 1961 P&h; 145, and (2) Hans Raj Basant Ram v. Dhanwat Singh Balwant Singh. .
33. We are in respectful agreement with the observations made in the decision of the Punjab High Court as to the construction and true effect of s. 4 of the Hindu Succession Act. We must. Therefore, reject the contention of the Revenue that the estate would still continue to be impartible estate till the succession opened on the demise of Narendrasinhji (sic). This view impressed the Tribunal in its earlier decision when it allowed the appeal of the Revenue pertaining to the assessment of 1965-66. We are of the opinion that the present contention of the Revenue is merely a projection of that view which, in our opinion, with respect, not warranted by the clear provisions of s. 4 of the Hindu Succession Act. The first contention of the learned Advocate-General must, therefore, be accepted.
34. If the properties with which we are concerned in this reference, though impartible at one time, ceased to be impartible in view of the provisions made in the Hindu Succession Act as referred to by us hereinabove, the said properties will regain all their attributes of joint family properties, since the properties. Though partible, were treated as impartible estate, having regard to the custom as to its descent and devolution on a single heir, in our opinion, the second contention, though urged by the learned Advocate-General as an alternative contention, merely states the same position of law which, even according to the Revenue. Would arise on the interpretation which has appealed to us at the time of opening of succession on the demise of Pratapsinhji. Now, if having regard to that position the holder of the impartible estate prays to the ITO to treat the properties as the properties of the undivided Hindu family and subject to tax the income therefrom as that of a HUF. We do not think that the ITO would be justified in refusing that prayer. The Tribunal has rejected this contention on the ground that no one can impress or attribute that character to any property or thing which it already possessed. In our opinion, it is not a question of merely attributing or impressing the character which the property had already possessed; it was as a matter of fact a contention which was urged in the alternative before the Tribunal that even if the property is considered to be separate or individual property, by the letter of June 2, 1967, the assessee was in effect and in substance impressing it with the characteristic of a joint Hindu family property. As stated by us while extracting the passage from the decision of the Supreme Court in Raj Kumar Rukmini Raman Brahma's case, AIR 1971 SC 1687, it was 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. It is only under the fiction of law, provided under s. 27(2) of the I.T. Act, 1961, that the holder of an impartible estate is deemed to be the individual owner of all properties comprised in the estate. It is, however, not tantamount to saying that even though the estate lost its characteristics of being impartible. It should still be treated as the separate or individual property of the holder.
35. A Division Bench of the Rajasthan High Court in Thakur Gopal Singh v. CWT [1976] 99 ITR 354, was concerned in a reference made under the W.T. Act as well as the G.T. Act with a similar contention urged on behalf of one jagirdar Thakur Gopal Singh about this status on the resumption of his jagir under the Rajasthan land Reforms and Resumption of jagirs Act, 1952. The jagir was held to be the absolute property of the assessee since the rule of primogeniture governed the succession to the said jagir and. Therefore, compensation paid to the jagir was his wealth. A question further arose in the G.T. assessment about the division of the amount of Rs. 2,00,000 being the sale proceeds of the private property allotted to the said jagirdar on resumption of the jagir, the Tribunal held that the jagir was owned by the HUF and the transaction did not involve any transfer creating any liability for gift-tax as it was a case of partition amongst the members of the HUF. In the W.T. proceedings, the reference was made at the instance of the assessee, while in those pertaining to G.T., proceedings the reference was made at the instance of the CIT. In that context, the Division Bench held that the impartibility of the property did not destroy its nature as joint family property or render it the separate estate of the last holder so as to destroy the right of another member of the joint family to succeed to it upon his death in preference to those who would be his heirs if the property were separate and. Therefore, the jagir was not the absolute property of the jagirdar but belonged to the HUF. The order of the Appellate Tribunal in wealth-tax Pradesh High Courts in the matter of Thakur Hari Singh v. CIT proceedings gift-tax was held to be erroneous in law while that in the was held to be valid. We are, therefore, of the opinion that the second contention of the learned Advocate-General merely advances the position of law that if the property was to be treated as a joint family property for purposes of succession on the death of the assessee, Pratapsinhji, it could as well be treated as joint family property for all intents and purposes even in the lifetime of the holder thereof, in support of his contention, he relied on the decisions of the Rajasthan and Andhra and Gundlapalli Mohan Rao v. Gundlapalli Satuanarayana [1973] 84 ITR 685 , respectively, where it has been held that if a property is not an impartible estate and is a separate or self-acquired property of the holder, it can be blended with other property and a statement in the return claiming the status of a HUF is sufficient to blend the self-acquired property with the characteristic of joint family property. We do not think that we must refer to these decisions in detail in the view which we are taking on the matter on the first contention.
36. The result is that this reference is accepted and we answer question No. 1 in the affirmative and, in view of that answer, the second question need not be answered at all, the Commissioner of Income-tax shall pay costs of this reference to the assessee.