A Hindu who declares (for the purpose of the Special Marriage Act, 1872) that he is not a Hindu does not cease to be a Hindu and Hindu Law remains applicable to him.

Bishan Narain, J.

1. On the application of the Commissioner of Income-tax, the Income-tax Appellate Tribunal (Delhi Branch) has drawn up the case and has referred the following question to this Court under Section 66 (1) of the Indian Income-tax Act :

"Whether on the facts and in the circumstances of the case, the assessee Partap Chands male issue by his marriage solemnised in 1947 under the Special Marriage Act of 1872 on his declaring that he did not profess the Hindu religion, acquired an interest by birth in the assessees ancestral properties?."

2. Partap Chand assessee filed two returns for the assessment year 1953-54, one in the status of an individual showing therein his income from salary etc., and the other as Karta of a Hindu Undivided Family consisting of himself and his minor son showing therein income from ancestral property. In this case we are only concerned with his return as Karta of Hindu Undivided Family and not with his return as, an individual. The facts relevant for this purpose are these. The assessees father was Somer Chand. There was a family arrangement between Somer Chand and Partap Chand and thereunder Partap Building, Connaught Circus, New Delhi, and some shares were allotted to Partap Chand with effect from 18-4-1946. This family arrangement has been recognised by the Income-tax authorities. The property so allotted to Partap Chand has been held in the present case to be ancestral property in his hands. In 1947, Partap Chand was married under the Special Marriage Act (No. III) of 1873. At the time of marriage Partap Chand made a declaration that he did not profess Hindu religion. His son was born sometime in 1948. On these facts the assessees case is that he with his minor son constitute a Joint Hindu Family under the Hindu Law while the case of the Income-tax Authorities is that succession to Partap Chands property, self acquired or ancestral, must be regulated by the provisions of the Succession Act i.e., by succession and not by survivorship.

3. It was argued on behalf of the Income-tar Commissioner that the assessee, by his declaration at the time of the marriage under the provisions of the Special Marriage Act that he did not profess Hindu religion abjured and renounced the Hindu Law as applicable to him. It is argued that after this declaration he ceased to be a Hindu and the succession to his property must be governed by the provisions of the Indian Succession Act, 1925.

4. Now, the Special Marriage Act as originally enacted in 1872 enabled Hindus who did not approve of the religious marriage rites to take advantage of this Act by declaring under Section 10 of the Act that they did not profess the Hindu religion. This is no longer necessary after the enactment of the Amending Act of 1923. Under Law it was not necessary for Partap Chand, at the time of his marriage in 1947, to declare that he did not profess Hindu religion but he chose to make that declaration. Now, the 1872 Act as originally enacted does not specifically lay down the effect of the declaration on the applicability of Hindu law relating to succession to the declarants ancestral properly or on his membership of the Joint Hindu Family.

The Act was amended by the Amending Act of 1923. It amended Section 1 of the Act whereby Hindus professing Hindu religion could also get married under the Act without declaring that they did not profess the Hindu religion. The Amending Act added Sections 22 to 26 which in certain respects modified the applicability of Hindu Law to Hindus who professed themselves to be Hindus at the time of their marriage under the Special Marriage Act. The Amending Act did not in any way lay down any rule, by modifying previous provisions of the Act or by adding any new provision, by which the effect of declaration on the Hindus who got married under the Act by declaring that they did not profess Hindu religion, could be determined.

The effect of declaration under Section 10 made before 1923 has been disc