The Hindu Succession Act, 1956, abrogates the Mitakshara rule of survivorship and the Mitakshara rule of intestate succession to the separate property of a male Hindu, including the nature and character of an ancestral property and the capacity of a son in which he inherits the property of his deceased father under that law.

( 1 ) THE question in this reference under Section 256 (1) of the I. T. Act, 1961, reads as follows :" Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share of income from property at Nohar in Rajasthan, share of income from Thirani building, Darjeeling, and share of income from the firm, M/s. Maheswari and Co. , could be included in the assessment of the assessee in the status of the HUF ? "

( 2 ) PRIOR to the partition hereinafter stated, the properties at Nohar and the Thirani building (hereinafter referred to as the " house properties ") mentioned in the question were the Mitakshara coparcenary properties of the assessee, Malchand Thirani, his two brothers and his father, Iswardas Thirani, since deceased.

( 3 ) ISWARDAS had a separate property, namely, a share in the firm, M/s. Maheswari and Co. , in which he was a partner. He was assessed as an individual in respect of his share of income from this firm during his lifetime. Iswardas, his wife, his three sons, and two unmarried daughters were members of a HUF. This undivided family was divided and all the properties were duly partitioned by a registered deed of partition dated February 23, 1959, in which Iswardas, his wife, his aforesaid sons and daughters were parties. This partition was duly recorded by the ITO, Darjeeling, under Section 25a of the Indian I. T. Act, 1922.

( 4 ) UNDER this deed Iswardas got the aforesaid house properties and was thereafter assessed as an individual in respect of the income of these two house properties.

( 5 ) HIS wife got some other properties under this deed. Similarly, his three separated sons also got some other properties and provision for maintenance was-also made for his two unmarried daughters.

( 6 ) ISWARDAS died intestate on June 3, 1963. He left the aforesaid persons and two other married daughters. Thereafter, the widow and the four daughters relinquished their interests in all the properties which are the subject-matter of this reference in favour of the sons of Iswardas by executing deeds of disclaimer.

( 7 ) IN the assessment proceedings, the ITO held that on the death of Iswardas, his widow, three sons and four daughters inherited in equal shares the properties left by him under Section 8 of the Hindu Succession Act, 1956, and the sons became the owners of one-third share in these properties in view of the aforesaid deeds of disclaimer. He further held that the house properties were ancestral properties and the one-third share of the firm became the ancestral property in the hands of the sons and, therefore, under the Mitakshara law one-third share of all these properties became the properties of the HUF of the assessee and his sons. He, therefore, assessed the one-third income of all these properties as income of the HUF of the assessee and his sons by rejecting the claim of the assessee that the income of these properties was not includible in the assessment of the assessee in the status of a HUF.

( 8 ) BOTH the appellate authorities have dismissed the appeals filed by the assessee. As Mr. B. K. Bagchi, learned counsel for the revenue, has discarded the reasons given by the Tribunal as untenable in law and has argued the case from his own point of view, we will, therefore, deal only with his arguments, for, in our opinion, the question should be answered in favour of the assessee.

( 9 ) MR. Bagchi argues that the one-third income of all these properties is includible in the assessment of the assessee in the status of a HUF. In support of this contention, he argues that the Hindu Succession Act, 1956, does not apply to these two house properties, for, according to him, Iswardas became the sole coparcener of these two house properties after the partition and these two house properties did not become the separate properties of Iswardas but remained as ancestral properties in his hands and, therefore, on his death these two properties have passed by surviv