1. JUDGMENT : C. S. P. Singh, J. - The Income Tax Appellate Tribunal. A Bench, Allahabad had referred the following question for opinion of this Court -
"Whether on the facts and in the circumstances of the case, the Tribunal was right in holing that the land owned by the deceased belonged to his HUF and not to him in his individual status."
2. Gajanand Jhunjhunwala died on 18-5-1959. Apart from other properties he owned 340 acres of agricultural land in U.P. and 50 acres in Bihar. At the time of his death he left behind two sons, who filed an account of the estate of the deceased. A dispute arose before the Asstt. Controller as to whether the land belonged to the deceased as Karta of a HUF or it was owned by him in his individual capacity. The Asstt. CED relying on the report of the Tahsildar Hatta, District Deoria, and the Anchal Adhikari, Bagaha-1, Champaran (Bihar) held that the land was owned by the deceased in his individual capacity, as his name alone was shown in the revenue records as the owner of the land. The appeal filed by the accountable person against this order failed. The matter then came up before the Tribunal. The Tribunal referred to an order passed u/s 25 of the IT Act, 1922, of the ITO, Gorakhpur on 30-8-1937 by which he accepted the partition of Zamindari and other properties between Gajanand and his three brothers, and the fact that in the assessment of estate duty of Madan Lal, one of the brothers, it was held that Madan Lal owned the agricultural land received by him on partition as Karta of HUF, and not in his individual capacity. Taking these facts into consideration it held that as the land which had been received by the deceased was ancestral property, the deceased had only one-third share in the land, the remaining being that of his two sons, in doing so it followed the decision of the Court in the case of Ram Chander & Ors. v. Commr. and Director of Consolidation, Meerut.
3. For reasons to be stated hereinafter it is not possible to answer to answer the question referred to in the absence of certain inquiries that the Tribunal should have made before disposing of the appeal. So far as the agricultural land in U.P. is concerned it has been held by the Supreme Court in the case of Rana Sheo Amber Singh v. The Allahabad Bank Ltd., Allahabad that after the issue of a notice u/s 4 of the U.P. Zamindari Abolition and Land Reforms Act all agricultural and vested in the State, and thereafter fresh rights including Bhumidhari rights were created in favour of persons holding such land. The Tribunal has recorded a finding that the land was Bhumidhari land. In the case of Mahendra Singh v. Attar Singh and others a Division Bench of this Court has held that notice of Hindu and Mohammedan Law which are applicable to other properties cannot be imported into rights created under the U.P. Zamindari Abolition & Land Reforms Act. In another decision of this Court in the case of Ram Chander and others a Division Bench of this Court has held that so far as joint and ancestral Khudkast and Sir land is concerned the father and the sons who were existing on the date of vesting, i.e. on 1-7-1952 would become co-Bhumidhari of the land, and the mere circumstances that the name of the sons was not recorded in the village papers would not deprive the sons of their rights in the land. It is worth while pointing out that the decision in Mahender Singhs case was not concerned with Khudhkast land, while Ram Chanders case specifically dealt with khudkast and sir land. But before Ram Chanders case can be applied it has to be found as a fact that the land was either sir or khudkast land before the date of vesting, and further that the sons who claimed an interest in the land had been born before the date of vesting. In the present case although there is indication that the agricultural land in U.P. was either sir or khudkast land of the deceased, as the deceased appears to have got this land on a partition of zamindari, none of the authorities have inquired into the nature of the holding before the abolition of Zamindari. In the circumstances, it was necessary to do so, for if the land was such, as was not governed by the personal law, the principle laid down by the Ram Chanders case would not be applicable and the case should be governed by the dictum of Mahendra Singhs case. The Tribunal has, while applying the decision of Ram Chanders case not recorded any finding as to nature of the land before the abolition of Zamindari, nor as to whether sons of the deceased had been born before the date of vesting, It was necessary to do so.
4. So far as the land in Bihar is concerned the question as to whether the deceased owned the land in his individual capacity or the sons also had a share in the land would depend upon the provisions of the Tenancy Act as prevailing in the State of Bihar before the abolition of Zamindari in that State, and the provisions of the Bihar Zamindari Abolition Act. The Tribunal having without examining the provisions of those Acts, applied the decision of Ram Chanders case to land held by the deceased in Bihar. This could not be done, as there is nothing on the record to indicate that the Tenency Acts of the State of U.P. and State of Bihar are in pari materia.
5. The Tribunal as such will have to dispose of the appeal after examining this respect of the matter. We accordingly return the reference unanswered. The parties shall bear their own costs.