The Hindu Succession Act, 1956, abolished the custom of impartibility and lineal primogeniture, and thus the assessee's status changed from 'individual' to 'Hindu undivided family' after the enactment of the Act.

Uday Sinha, J.

1. This is a reference under Sec.256(1) of the Income-tax Act at the instance of the Revenue. The question referred for the opinion of this court is as quoted below :

"Whether, on the facts and in the circumstances of this case, the Tribunal was correct in law in determining the status of the assessee as Hindu undivided family ?"

2. In this reference, we are concerned with the assessment years 1967-68 to 1969-70. The assesses succeeded to the Gaddi of late Maharaja Pratap Udai Nath Sahdeo of Ratu Raj on March 7, 1950, on the latters death. The late Maharaja being holder of an impartible estate and governed by the law of lineal primogeniture was assessed as an individual. The assessee having succeeded to the Gaddi with all the incidents thereto, like his predecessor, was also assessed as an individual. In the assessment years 1965-66 and 1966-67, the assessee claimed the status as that of a Hindu undivided family. The Income-tax Officer rejected his claim. In the years under reference (1967-68 to 1969-70) also, the assessee claimed the same status. The contention of the assessee was that on coming into force of the Hindu Succession Act in September, 1956, the impartible estate governed by the lineal primogeniture disappeared. Thus, all the incidents of a joint Hindu family became operative. The income of the estate became the income of the Hindu undivided family consisting of the assessee, his wife, daughters, widowed mother and widowed grandmother.

3. The Income-tax Officer rejected the claim of the assessee. His view was that the assessee had succeeded to the estate in the year 1950 as an individual and, therefore, he would be treated as such till succession opened after his death.

4. The Appellate Assistant Commissioner on appeal held that with the passing of the Hindu Succession Act, the customary right of impartibility and lineal primogeniture in the matter of succession disappeared--excepting such estates as were saved by Sec. 5 of the said Act. Other members of the joint family also got a right in the property and its income. He, therefore, held that the property and income of the Hindu undivided family of the assessee did not belong to him in his individual capacity after the passing of the Hindu Succession Act. The Appellate Assistant Commissioner also referred to the fact that in earlier years also, the status of the assessee had been held to be that of a Hindu undivided family.

5. The Income-tax Appellate Tribunal, on appeal by the Department, in agreement with the Appellate Assistant Commissioner held that the status of the assessee was to be taken as that of a Hindu undivided family. The Revenue thereafter moved the Tribunal for making a reference to this court. Thus arises the reference falling for consideration before us. The question referred to us for our opinion has been quoted earlier.

6. It is not in controversy that the assessee succeeded to an impartible estate--impartible by custom--governed by the law of lineal primogeniture. The property was ancestral and there had been no partition. The matter in controversy has to be decided on the basis of the scope and effect of Section 4(1) of the Hindu Succession Act, 1956 , which reads as follows :

" 4(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;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

7. By the force of the above provision, the custom of impartibility and lineal primogeniture ceased to have effect. The shakles on the joint family thus fell apart.

8. In Shiba Prasad Singh V/s. Rani Prayag Kumari Debi, AIR 1932 PC 216, it has been laid down as