Judgment

HEGDE, J. :- These are appeals by certificate. They arise from a common judgment delivered by the High Court of Patna.

2. The assessee-respondent is the holder of an impartible estate. By an indenture dated November 23, 1950, he granted to his wife two premises at Camac Street, Calcutta for life by way of supplementary Khorposh (maintenance) grant. During the assessment years with which we are concerned viz. 1957-58 to 1960-61 the income from those house properties was included in the total income of the assessee under S. 16 (a) (iii) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act). The assessee challenged the validity of that inclusion firstly on the ground that S. 16 (3) (a) (iii) of the Act is ultra vires Article 14 of the Constitution and secondly on the ground that the income in question cannot be considered as his income for the purpose of the said section. These objections were overruled by the authorities under te Act. Thereafter at the instance of the assessee, the following three questions were referred to the High Court of Patna under S. 66 (1) of the Act.

"(1) Whether the provisions of S. 16 (3) (a) (iii) of the Indian Income-tax Act, 1922 are ultra vires the Constitution of India ?

(2) Whether in the facts and circumstances of the case the Tribudnal was justified in holding that the provisions of Section 16 (3) (a) (iii) applied to the income arising from a property transferred by the holder of an impartible estate to his wife for her maintenance ?

(3) Whether in the facts and circumstances the Tribunal was right in holding that the income under S. 16 (3) (a) (iii) was to be included in the total income for the purpose of computing the net annual value of the residential house at 10 per cent. of the total income under the 1st proviso to section 9 (2) ?"

3. Before the High Court Counsel for the assessee did not press for any answer on the first question evidently in view of the decision of this Court in Balaji v. Income-tax Officer, Special Investigation Circle, Akola, 43 ITR 393. The second question was answered in favour of the assessee and in view of the decision of the High Court on that question, the High Court did not think it necessary to go into the third question. The answer to the third question necessarily depends on the answer to the second question. If we come to the conclusion that the second question was not correctly answered then it follows that the income from the properties in question has to be included in the total income of the assessee and the income from the residential house of the assessee will have to be computed at 10 % of his total income under the Ist proviso to Section 9 (2) of the Act. Hence the material question to be decided is whether the income from the properties in Calcutta is liable to be included in the income of the assessee.

4. The assessee is assessed as an individual. As mentioned earlier, he is the holder of an impartible estate the incidents of impartible estate have been well settled by the decisions of Courts in this country as well as by the decisions of the Judicial Committee. The holder of an impartible estate has uncontrolled power of enjoyment and disposal over the impartible estate as well as over the income arising therefrom; but, yet the estate belongs to the Hindu joint family of which the holder is a member. Subject to any custom to the contrary, on the death of the holder of an impartible estate, the estate devolves by survivorship - See Baijnath Prashad Singh v. Tej Bali Singh, 48 Ind App 195 and Shiba Prasad Singh v. Praved Kumari Debi, 59 Ind App 331. In Commissioner of Income-tax v. Krishna Kishore Rais, 68 Ind app 155 the judicial Committee held that the income of a house property which is a part of an impartible estate cannot be considered as the individual income of an assessee under S. 9 of the Act as it stood then. Therein the Judicial Committee observed :

"Since the decision of the Board in 48 Ind App 195, it has bee