1. These two references made by the Appellate Tribunal in connection with the proceedings for the assessment of estate duty payable by the accountable person, Smt. Sheila Prasad, can be conveniently dealt with and disposed of by a common judgment.
2. The facts, in so far as are material for these two references, are that one Col. Ajit Prasad died on 1st September, 1971 and Smt. Sheila Prasad is his widow and the accountable person. In the account furnished it was claimed that, among other properties, orchard (6'75 acres) and land (2.34 acres) were properties of an HUF. The coparcenary interest of the deceased in the HUF properties was shown as 1/6. However, the Asst. Controller found that the contention of the accountable person, that the orchard and the land were HUF property, was not corroborated from the land records as the names of Yatish Prasad and Col. Ajit Prasad alone were mentioned as owners. Accordingly, he held that the deceased had a half share in this property. On appeal, the Appellate Controller observed that there was nothing to show that in thisproperty any other member of the HUF was interested or anybody else was disputing the deceased's right over the property to the extent included in the estate. In these circumstances, he confirmed the action of the Asst. Controller and rejected the contention of the accountable person. On further appeal, the Appellate Tribunal, following its earlier decision dated 10th November, 1978, in E.D.R. No. 19 of 1977-78, held that the agricultural land in dispute did not belong to the HUF and that it belonged to all the coparceners who became joint owners of the bhumidhari rights as one single unit. It was held that the members of the family on whom such rights were conferred under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, became the separate owners of their shares as tenants-in-common and, being so, the conferment of such right on the member of the HUF could not be denied to him only because in the revenue records his name was not entered and only the joint name of Yatish Prasad and Col. Ajit Prasad was entered there. In view of these facts and on a consideration of the admitted genealogical table, the Tribunal held that the deceased's share in the agricultural land was 1/4 in place of 1/2 as taken by the authorities below and allowed the appeal accordingly.
3. The Controller of Estate Duty then made an application to the Tribunal requesting it to state the case and refer the following two questions of law for the opinion of this court:
'1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the agricultural land did not belong to the Hindu undivided family; rather it belonged to all the coparceners and they were joint owners of the bhumidhari rights and
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the deceased's share in such property was 1/4 and not 1/2 as assessed by the Assistant Controller of Estate Duty '
4. The Appellate Tribunal held that so far as the first question mentioned above was concerned, the result of the appeal disposed of by it was not likely to be affected as a result of its answer to it in reference, that question would be academic. It accordingly declined to refer the same for opinion of this court. It, however, stated the case and referred the secend question mentioned above for the opinion of this court (E.D.R. No. 283 of 1982).
5. The Controller then approached this court and obtained orders requiring the Tribunal to state the case and refer the first question as well for the opinion of the court. Thereupon the Tribunal drew up a further statement of the case and has referred the first question also for the opinion of this court (E.D.R. No. 233 of 1981).
6. So far as the first question (namely, that involved in E.D.R. No. 233 of 1981) is concerned, it pertains to the interest that the deceased shared in certain agricultural properties in respect whereof bhumidhari rights had been acquired after the U.P. Zamindari Abolition and Land Reforms Act was made applicable in the concerned area. The view of the Tribunal that the bhumidhari rights created under Section 18A of the U.P. Zamindari Abolition and Land Reforms Act were new rights and that such rights were not possessed by the deceased prior to the conferment thereof by the said Act, and that, whatever right the deceased had in such property in his capacity as karta came to be extinguished on the vesting of that estate in the Government, and further that the bhumidhari rights conferred by the U.P. Zamindari Abolition and Land Reforms Act belonged to co-owners and not the HUF, is based on the decision of the Supreme Court in the case of Rana Sheo Ambar Singh v. Allahabad Bank Ltd., AIR 1961 SC 1970. Learned counsel for the Revenue could not advance any argument in support of the case that the said view of the Tribunal was erroneous. Accordingly, agreeing with the Income-tax Appellate Tribunal, we answer the said question in the affirmative.
7. Coming now to the second question (subject-matter of E.D.R. No 283 of 1982), we are of opinion that the extent of bhumidhari interest of Ajit Prasad, deceased, in the agricultural plots would depend upon whether his son, Anil Prasad, was born before the date on which the U.P. Zamindari Abolition and Land Reforms Act became applicable to the area wherein the concerned plots were situate. In case Anil Prasad was born before the date of vesting, he being the son of Ajit Prasad, would, before that date, acquire an interest by birth in the agricultural holdings of the HUF, but in case he was born after that date, he would not acquire any interest in the bhumidhari plots of Ajit Prasad by birth. We have carefully gone through the judgment of the Tribunal and it appears to us that the aforementioned aspect of the case for determining the extent of the bhumidhari rights of Ajit Prasad in the agricultural properties involved in the case on the basis of the genealogical table set up by the parties has not been considered by the Tribunal. Learned counsel for the accountable person agrees that the Tribunal has in this regard neither referred to the evidence indicating the date on which the U.P. Zamindari Abolition and Land Reforms Act became applicable to the area where the plots were located nor the evidence indicating the date of birth of Anil. The Tribunal certainly was not justified in recording a finding with regard to the extent of the interest of the deceased in the agricultural plots without adverting to the questions as to on what date the U.P. Zamindari Abolition and Land Reforms Act became applicable to the area where the agricultural plots were situated and as to whether or not Anil Prasad,son of Ajit Prasad, had been born before that date. The Tribunal will have to deal with this question again when the case goes back to it.
8. In the result, we answer the question referred to us by saying that the judgment of the Tribunal holding that the share of the deceased, in the agricultural land was 1/4 cannot, in the circumstances of the case, be sustained. The matter will go back to the Appellate Tribunal, Allahabad, for doing the needful in the light of the observations made by us above. Parties are directed to bear their own costs.