The Hindu Succession Act, 1956 alters and replaces the old rules of Primogeniture and Impartible Estates, and the succession to properties is governed by the provisions of the 1956 Act, except for the imparteable estates covered by Section 5.

Jawahar Lal Gupta, J. - The cleavage of judicial opinion regarding the effect of the Hindu Succession Act, 1956 on the old customary rules of Primogeniture and "Impartible Estates has led to prevarication in the decisions under the Income/Wealth Tax Acts. As a result, the Assessee as well as the Revenue are aggrieved by the orders relating to the different Assessment Years. Thus, these 11 cases.

2. Learned counsel for the parties have referred to the facts as emerging from the record of Wealth Tax Reference Nos. 34 to 38 of 1982. By its composite order of March 30, 1982, the Income Tax Appellate Tribunal has referred the following question for the opinion of this Court :

"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee was to be assessed as an Individual in respect of the imparteable estate on the ground that he was a holder of such an imparteable estate in the assessment years under consideration ?"

3. The facts may be briefly noticed.

Guru Amarjit Singh is the Assessee. He was the holder of an imparteable estate for the last about 40 years which was much before the passing of the Hindu Succession Act. Upto the Assessment Year 1969-70, the Estate was being assessed as belonging to the Hindu undivided family. However, for the five assessment years viz. 1970-71 and 1972-73 to 1975-76, the holder of the Estate was assessed as an individual. The Wealth Tax Officer had taken the view that the Assessee being the holder of an "impartible estate, the value of the estate has to be assessed in his hands in the status of an individual as per provisions of Section 4(6) of the Wealth Tax Act, 1957." The contention of the Assessee that with the passing of the Hindu Succession Act, 1956, the concept of impartible estate had become obsolete was rejected. The value of the estate was, thus, included in the wealth of the Assessee. Copies of the five orders passed by the Wealth Tax Officer are at Annexure A to "A-4

The Assessee appealed. It was contended that in view of the provisions of Sections 4 and 5 of the Hindu Succession Act, 1956, the orders passed by the Wealth Tax Officer could not be sustained. However, the Commissioner of Wealth Tax (Appeals) held that "although the imparteable estate was a joint Hindu property, during the life of the holder of the imparteable estate, it would be holders absolute property". Thus, the appeals were dismissed. Copies of the five orders are at Annexures B to "B-4.

The Assessee challenged the orders before the Income Tax Appellate Tribunal. After consideration of the matter, the Tribunal held that the property belongs to the "joint family but in the circumstances of the case, the holder has to be assessed in his capacity as an individual." Thus, the appeals were dismissed. The Assessee filed a petition under Section 27(1) of the Wealth Tax Act, 1957. It was accepted. Hence, these five References. In the connected cases, the Revenue is the petitioner.

4. Learned Counsel for the parties have been heard.

Mr. Ajay Mittal, counsel for the Assessee contended that Section 4 of the Hindu Succession Act, 1956, gives an over-riding effect to the provisions of the Act. On the promulgation of the Act, the rules of primogeniture and impartible estate had become inoperative. Section 5(ii) carves out a limited exception. The case of the Assessee does not fall within the parameters of Section 5(ii). The Revenue cannot invoke Section 4(6) of the Wealth Tax Act in this case. The provision is applicable only when there is an imparteable estate as contemplated under Section 5(ii) of the Hindu Succession Act. Similar is the position with regard to the provisions of Section 27(ii) of the Income Tax Act, 1961. Learned counsel referred to various decisions.

5. The claim made on behalf of the Assessee was controverted by Mr. R.P. Sawhney, counsel for the Revenue. He contended that the Assessee continues to be the holder of the imparteable estate. The provision