1. The assessee, who is the Maharaja of Morvi, succeeded his father, who was the then Ruler of Morvi, on his death on August 17, 1957. The assessment years in question for the purposes of the assessment to wealth-tax are 1959-60 to 1965-66, and the relevant valuation date is March 31 each of the respective previous years. The only dispute between the department and the assessee, who was a minor, related to the which may or may not be used by a Ruler. When the United States of Kathiawar was formed and Morvi became a part of the said United Stated of kathiawar, an inventory of the immovable property belonging to the Ruler of Morvi came to be made. The assessment proceedings have proceeded on the footing that Darbargadh in question is governed by the formula which was mooted by the Raj Pramukh and which is made a part of the statement of the case as annex. 'B'. Annexure 'B' is a letter addressed by the Raj Pramukh to the Maharaja of Morvi forwarding the inventory and what is called the Darbargadh formula. The inventory prepared shows that some properties and the Darbargadh or the city place was said to be governed by the formula. The relevant part of the formula relating to the Darbargadh provided as follow :
'When the Ruler has a Darbargadh or Darbargadh in addition to his own places, then his title to and use of them should in may view be settled in the following manne :
(a) The legal title should always vest with the dynasty of the Ruler, and the property shall be inalienable and impartible.'
2. In the assessment proceedings, the case of the assessee before the WTO was that a nominal value should be put on the Darbargadh as the same was not readily saleable being a place used for the residence of the Maharaja of Morvi in succession. He had also contended that the palace was situated in a small town and would not fetch the same price which, it could, if located in the city. Since the late Maharaja had agreed to the value of the Darbargadh being taken at Rs. 5,50,000 in the return submitted for the assessment year 1957-58, the WTO adopted the same value for the assessment years in question.
3. In the appeal by the assessee, the AAC held that the value of the buildings, Darbargadh, was not liable for inclusion in the wealth-tax assessment of the assessee. He took the view that the legal title in respect of the Darbargadh was to vest with the dynasty of the Ruler and the property was to be inalienable and impartible. The Ruler had only the right to use the palace as his official residence and this right had no market value. The right was held to be a personal right which the Ruler could enjoy during his tenure as a Ruler. He, therefore, excluded the value of the Darbargadh from assessment.
4. The revenue challenged this order of the AAC before the Tribunal. The Tribunal confirmed the view that the title of Darbargadh vested in the dynasty of the Ruler and it belonged to the family of the assessee, holding that the ownership of the Darbargadh did not vest in the Ruler and the Ruler did not have any power of alienation. It was held that the Darbargadh could not be included as a part of the net wealth of the Assessee as it was no in the nature of an asset in his hands. It was argued before the Tribunal on behalf of the revenue that the right of the Ruler in the Darbargadh should at least be valued as a life interest which contention was also rejected by the Tribunal holding that the right to occupy the Darbargadh was a personal right attached to the Ruler and not to any individual. The revenue being aggrieved by this view of the Tribunal had asked for a reference and at the instance of the revenue the two following question have been referred to this cour :
'1. Whether, on the facts and in the circumstance of the case, the value of the building known as 'Darbargadh' was includible in the net wealth of the assessee for wealth-tax purpose ?
2. If the answer to question No. 1 is in the negative, whether the assessee has any life interest in the said property, and as such the value of such life interest was includible in the net wealth of the assessee ?
5. A two-fold argument was advanced by Shri Joshi appearing on behalf of the revenue. Firstly, his contention was that, notwithstanding the fact that the Darbargadh was an impartible property, the property must be considered as belonging to the Ruler himself, because the essential incidents of joint family property, viz., the right of the coparcener to challenge the alienation were absent in the case of an impartible property and reliance was placed on the observation of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi . The other limb of the argument of the learned counsel was that the Legislature had amended s. 4 of the W.T. Act by the addition of cl. (6) in s. 4 with effect from April, 1, 1965, and this clause inserted by amendment was really in the nature of a declaratory declaring the pre-existent legal position in respect of the holder of an impartible property. Section 4(6) reads as follow :
'For the purposes of this Act, the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate.'
6. In any case, according to the learned counsel, at least for the last assessment year 1965-66, the Darbargadh was liable to be treated as part of the net wealth property of the assessee.
7. Now, as is well known, the concept of net wealth contained in s. 2(m) of the W.T. Act, takes in only those assets which belong to the assessee on the valuation date. It is, therefore, necessary to ascertain whether the Darbargadh which was impartible and inalienable in the hands of the assessee can be said to belong to the assessee. Shri Dastoor appearing on behalf of the assessee has contended that the property was the property of that dynasty as was provided in the Darbargadh formula and, in any case, according to the learned counsel, the Darbargadh cannot be said to be owned individually by the assessee who had a different legal personally apart from his individual personality, the legal property being that of a ruling chief. The learned counsel contended, relying on certain observations in Shripatprasad Beharilalji Acharyashri v. Lakshmidas Dungarbhai barot : AIR1924Bom193 , that the ruling chief should be considered as a corporation sole. Shri Joshi has seriously contested the argument that the concept of a corporation sole could be invoked by the assessee and our attention was invited to a decision of the Supreme Court in CIT v. H. E. H. Mir Osman Ali Bahadur  59 ITR 66, in which, according to the learned counsel, the claim of the Nizam to any preferential treatment was rejected and his assessment as an individual was upheld. We were also referred to a decision of the Madras High Court in S.C. Sree Manavikraman Raja v. CED : 32ITR1(Mad) in which, according to the learned counsel, the concept of corporation sole has been considered and it was held that there was no warrant for importing the English law in relation to the concept of a corporation sole into Indian and that the common law of India had not recognised such a concept. However, having regard to the vie which we are inclined to take about the nature of the impartible estate of the assessee in this case, we do not think it necessary to consider the argument advanced on behalf of the assessee that the Darbargadh cannot be included as part of the his net wealth because under the inventory and the formula it was treated as the property of the dynasty or because the property must be held to belong to the corporation sole which was an entity different from the individual, viz., the assessee in the instant case.
8. The controversy involved in this case can be effectively decided, in our view, if the correct nature of the impartible estate is appreciated. There is no dispute that the Darbargadh places was to be held as an impartible and inalienable property with the result that the assessee was not entitled to alienable it and it was not liable to be partitioned. The concept of an impartible property has been considered by several courts but that concept has been admirably explained by the Privy Council in Shiba Prasad Singh's case (col. 2) cited supra, as follow :
'Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family hav : (1) the right of partition; (20 the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kuari's case ILR  All 272 and Rama Krishna v. Venkata Kumara Surya Rao ILR  Mad 383 and so also the third as held in Gangadhara v. Rajah of Pittapur, AIR 1918 PC 81. To this extent the general law of Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incident of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains, and this is what was held in Baijanath's case, AIR 1921 PC 62. To this extent the estate still retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property.'
9. It is clear from the decision of the Privy Council that the real nature of the impartible property is that of a joint family property though certain incidents which are attached to the joint family property are not attached to such property but, as pointed out by the Privy Council, in spite of certain incidents of joint family property being absent, the property still retains it character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property.
10. We, may further refer to the observations made by the Supreme Court in State of U.P. v. Raj Kumar Rukmini Raman Brahma, AIR 1971 SC 1687, where the Supreme Court has clearly pointed out that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. Approving the decision of the Privy Council in Shiba Prasad Singh's case , the Supreme Court observed in para. 8 (p. 1690) as follow :
'Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi , it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he had succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family.'
11. With this statement of the law made by the Supreme Court if it difficult to see how it is now open to the revenue to argue that the impartible property must be treated as the personal property of the holder. The pronouncement of the Supreme Court with regard to the nature of an impartible estate really, in out view, concludes the controversy which is involved in the instant case. Impartible property cannot be treated as the personal property of the assessee at all unless it is artificially included by the Legislature, as it is now contended on behalf of the revenue, by enacting sub-s (6) in s. 4 of the W.T. Act.
12. We must now consider the argument on behalf of the revenue that s. 4(6) must be held to be applicable right from the time the W.T. Act came into force because, as pointed out, the contention is that the amendment is merely declaratory of the prevailing position of law. Shri Joshi has relied on a decision of the Andhra Pradesh High Court in P.V.G. Raju v. CWT : 78ITR601(AP) . The Division Bench of the Andhra Pradesh High Court was considering the question whether an impartible property was the individual property of the owner and in that context it was urged before the Andhra Pradesh High Court that the amended s. 4(6) of the W.T. Act was more or less of a declaratory or explanatory nature and this contention was accepted by the learned judges. The learned judges noticed the fact that originally there was no provisions in the W.T. Act similar to the provisions of s. 9(4) of the Indian I.T. Act, 1922, the corresponding provisions in the 1961 Act being s. 27(ii). Section 9(4) of the Indian I.T. Act, 1922, provided, inter alia, that for the purposes of s. 9, 'the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate', Clauses (ii) of s. 27 of the I.T. Act, 1961, is in identical terms. The Division Bench pointed out that from the two provisions, viz., those contained in s. 4(6) of the W.T. Act and s. 9(4) of the Indian I.T. Act, 1922, the intention of the Legislature became abundantly clear and the Legislature wanted an impartible estate to be treated as the individual property of the holder and not as his joint family property for the purposes of tax. For arriving at this conclusion the Divisions Bench relied on the principle that whenever there is an ambiguity in an Act, it is proper to refer to an earlier Act in pari materia or an Act of analogous character and assistance in ascertaining the meaning of an enactment may be obtained by comparing its language with that used in an earlier statute relevant to the same or analogous subject Having set out this principle on the authority of a passage from Maxwell on the Interpretation of Statutes, at p. 33, the Division Bench observed as follows (p. 616 :
'On the same principle, while considering the question whether as impartible estate is the individual property of the owner under the Wealth-tax Act, in view of the ambiguity existing in that Act at the time of the assessment, it becomes permissible to take assistance from section 9(4) of the Income-tax Act, which Act is an analogous Act and on the same the question relates to the understanding of the character of the impartible estate. The subsequent legislation, which is more or less a declaratory or explanatory one, would further strengthen such an approach. The irresistible conclusion is that from these provisions also it becomes abundantly plain that impartible estate is an individual property of the holder and not a joint Hindu family property for the purposes of income-tax as well as wealth-tax.'
13. With respect to the learned judges who decided this case we find it difficult to agree with the view taken by them with regard to the provisions of s. 4(6) of the W.T. Act apart from the fact that that statement of the law that impartible estate is the individual property of the holder is contrary to the pronouncement of the Supreme Court in Raj Kumar Rukmini Raman Brahma's case, AIR 1971 SC 1687. The deeming fiction in s. 9(4)(a) of the Indian I.T. Act, 1922, and in the corresponding provisions in s. 27(ii) is for the limited purposes of determining the income from a house property. It is no doubt true that in those provisions income of the holder of an impartible property is fictionally made his income as an individual owner of that property. But it is difficult for us to see how those provisions can be utilised for construing the provisions of s. 4(6) of the W.T. Act when the use of the fiction is made only for a very limited purpose. The subject-matter of the two enactment and their scope are also different and the two enactment are not at all in pari materia.
14. We also find that there is intrinsic evidence in the amended provisions itself which would fully indicate that s. 4(6) could not be construed as a mere declaratory provisions setting out the prevalent legal position with regard to the ownership of an impartible estate. The Legislature has taken recourse in the newly added provisions to a fiction and it is now by the introduction of the fiction that the holder of an impartible estate is deemed to be the individual owner of the properties comprised in the estate. The very fact that the Legislature had taken recourse to the deeming provision clearly indicated that but for the deeming provisions the holder of an impartible estate was not considered to be the individual owner of the properties comprised in the estate. There is no doubt that the was the correct position even according to the decision of the Privy Council in Shiba Prasad Singh's case , where, as already pointed out, the Privy Council has clearly held that to a limited extent the impartible estate retains its character of a joint family property. We do not think it is necessary to say anything more in order to accept the contention that s. 4(6) of the W.T. Act cannot be construed as a declaratory provision and consequently it must operate only from the time it was brought into force, i.e., from April 1, 1965.
15. The learned counsel for the assessee has also drawn our attention to a similar view taken by the Rajasthan High Court in Thakur Gopal Singh v. CWT , where the argument that s. 4(6z) could be considered as being effective in respect of the years 1957-58 and 1958-59 was summarily rejected. The argument that his provision should be made applicable for the years 1957-58 and 1958-59 was advanced on the analogy of s. 9(4) of the I.T. Act and the contention was negatived by the Rajasthan High Court in the following words (p. 368 :
'We have already noticed above that the provisions in section 4(6) of the W.T. Act was enacted corresponding to section 9(4) of the Income-tax Act with effect from April 1, 1965. We are not at all impressed by a submission that the fiction can be made applicable in assessing wealth-tax in the years 1957-58 and 1958-59. From a persual of section 9(4) of the Indian Income-tax Act, 1922, it is abundantly clear that the fiction was created for purposes of section 9 alone. Its applicability cannot be extended to the Wealth-tax Act till a similar provision was made in that Act.'
16. In the course of the argument, Shri Joshi appearing for the revenue has referred us to the provisions of s. 5, cl. (2) of the Hindu Succession Act. Section 5 of the Hindu Succession Act is not made applicable to 'any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of an Indian State with the Government of India or by the terms of any enactment passed before the commencement of the said Act'. The section was referred to in order to point our that in the matter of succession now, the succession will be government by the provisions of the Hindu Succession Act unless the estate is of the kind described in s. 5(2). Now, so far as the present case is concerned, the provision of the Hindu Succession Act do not appears to us to be relevant because in the formula and the inventory it appears that the Darbargadh was to be occupied by the Ruler for the time being and the Ruler alone was supposed to enjoy the property.
17. Since we have reached a conclusion that the impartible property cannot be the property of the Ruler individually before sub-s. (6) was added in s. 4 and it was the joint family property, no question as to the life interest of the assessee in such property can arise for the assessment years prior to 1965-66.
18. It is, however, difficult to see how the Darbargadh palace can be excluded from the net wealth of the assessee for the assessment year 1965-66. It can hardly be disputed that the assessee is the holder of the impartible estate. The amended provision in s. 4(6) of the W.T. Act became effective from April 1, 1965, and, therefore, for the assessment year 1965-66, the Darbargadh placed will have to be included as a part of the net wealth of the assessee. We are not concerned with the valuation of the Darbargadh because that question obviously did not arise either before the AAC or the Tribunal as the finding on the basic question of includible was recorded in favour of the assessee by the AAC and the Tribunal. So far as that question is concerned, it will be open to the assessee to pursue that matter when the question arises for a decisions before the appropriate authority. Having regard to the view which we have taken, the questions, referred to us are answered as follow :
Question No. 1 (a : In the negative for the assessment years 1959-60 to 1964-65.
Question No. 1 (b : In the affirmative for the assessment year 1965-66.
Question No. : does not arise.
19. The assessee to get the costs of this reference.