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Commissioner of Wealth-tax Vs. Thakur Bhairon Singh - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberCivil Wealth-tax Reference No. 29 of 1959
Judge
Reported in[1984]147ITR32(Raj); 1974(7)WLN889
ActsWealth Tax Act, 1957 - Sections 4(6); Wealth Tax (Amendment) Act, 1964
AppellantCommissioner of Wealth-tax
RespondentThakur Bhairon Singh
Advocates: S.C. Bhandari, Adv.
Cases ReferredIn State of U.P. v. Raj Kumar Rukmini Raman Brahma
Excerpt:
.....wealth tax act, 1957 - section 4--joint hindu family property cannot be treated as an individual's property--compensation is joint hindu family property.; the jagir of barkana was an impartible estate and, therefore, we are fortified in our inference that it was the joint hindu family property which could not be treated as individual's property excepting under the amended provisions of section 4 sub-section (6) of the act.; the assessee has merely said that this amount is the joint hindu family property of himself and his sons and from this declaration it is easy to infer the intention of the assessee that he has impressed the compensation and other assets included in the returns with the character of undivided joint hindu family property. - - rani prayag kumari ,it must be taken to be..........of a grant unless the succession was recognised. the rule of primogeniture is firmly ingrained in jagir estate and merely because a recognition affirmed a succession it does not destroy the impartibility of the estate. so far as thakur bhairon singh is concerned, he had been recognised and what was granted to him was an impartible estate. 14. the case of thakur gopal singh was sought to be distinguished on the ground that it related to mewar state although it was not disputed that its circumstances were almost similar to the facts before us. we havereferred to the 'mewar's qanum mal act no. 5 of 1947'. chapter 11 thereof creates almost the same incidents of the jagirs in mewar which are of the jagirs in marwar. section 107 of the mewar qanum mal act reads as under: 1fbdkusnkj ;k.....
Judgment:

B.P. Bert, C.J.

1. By this court's order dated December 16, 1968, the Appellate Tribunal was required under Section 27(3) of the W.T. Act, 1957 (hereinafter called 'the Act'), to state a case to this court in respect of the assessee's assessment for the years 1957-58 to 1964-65, and refer the following question of law :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that all the wealth of the assessee including the compensation received by him under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, for which the assessee was assessed foreach assessment year starting from 1957-58 to 1964-65 belonged to him in the capacity of the karta of a Hindu undivided family or it belonged to him as individual ?'

2. We might notice a few facts for answering the question aforesaid which covers all the assessments under examination. Thakur Bhairon Singh was a scheduled jagirdar in the erstwhile State of Jodhpur of the Jagir of Barkana in District Pali. He received certain compensation consequent to the abolition of the jagir under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter called ' the Abolition Act'), and he included the amount of the compensation in his return of wealth claiming that it was an asset of his HUF consisting of himself and his sons. The WTO by separate orders for each year but all dated March 31, 1965, rejected the contention of the assessee on the ground that the assessee having succeeded to the jagir on the rule of primogeniture prior to the year 1940 he was not governed by the Hindu Succession Act of 1956 or Hindu law but was governed by the personal law prevalent in the Jodhpur State and, as such, his status was that of an individual. Dissatisfied, the assessee preferred appeals before the AAC, who, however, found that the assessee was the holder of an impartible estate which he had inherited from his father. On the principle laid down in CIT v. Krishna Kishore [1941] 9 ITR 695 , Shiba Prasad Singh v. Rani Prayag Kumari Debi and Mirza Raja Pushpavathi Vijayaram v. Pushpavathi Visweswar AIR 1964 SC 118, the AAC upheld the assessee's contention that the estate was owned by the HUF of which the assessee was the karta. Against the order of the AAC dated April 25, 1966, the Department took up an appeal before the Tribunal who, on the principles indicated in Mayne's Hindu law and on the authorities of Baijnath Prasad Singh v. Tej Bali Singh AIR 1921 PC 62, Collector of Gorakhpur v. Ram Sunder Mal and Raja Pushpavathi's case AIR 1964 SC 118, upheld the decision of the Assistant Commissioner. The Department came up to this court and prayed for a direction for referring the aforesaid question for answer.

3. We have heard Mr. S.C. Bhandari for the Department. No body has appeared on behalf of the assessee.

4. Mr. Bhandari's contentions, briefly stated, are that the property in this case was the Jagir of Barkana; that the compensation arising from this jagir retained the character of the estate of which it was the compensation, that the nature of the estate will have to be ascertained by reference to the Marwar Land Revenue Act, 1949 (hereinafter called 'the Marwar Act'), and because such a jagir enured only for the lifetime of theholder and no person was entitled to succeed to such jagir until his succession was recognised and the grant was renewed by His Highness, the jagir or its compensation could not acquire the character of undivided Hindu joint family property. For the aforesaid reason he endeavoured to distinguish the case of this court in Thakur Gopal Singh v. CWT and so also Raja Pushpavatki's case AIR 1964 SC 118.

5. The Marwar Act was intended to consolidate and amend the laws relating to tenancies and other matters connected therewith in Marwar, i.e., the former Jodhpur State. The assessee had already succeeded in 1940, and the jagir was abolished in 1952, and we have our great doubts whether the Marwar Act of 1949 as such would apply for ascertaining its characteristics. Assuming for the sake of argument that the characteristics of a jagir in the erstwhile Jodhpur State were those which are enunciated in the Marwar Act, let us examine some of its provisions. Section 169 provides that the ownership of all lands vest in His Highness and all jagirs shall be deemed to be held as grants from His Highness. Section 170 lays down that all grants shall be held by the original grantee or his successors during His Highness' pleasure. Section 171 refers to the scheduled jagirs and the assessee's jagir was one of them. Section 172 lays down that subject to the provisions of this Act and of any other law for the time being in force, succession to all estates called 'grants' shall be in accordance with the personal law to which the deceased landlord was subject. Section 173 speaks of escheat of the estate of an heirless grantee and Section 174 provides that when the grant is resumed under Section 173, the widow or dependant of the deceased grantee were to be granted maintenance allowance. Section 175 provides that a grant may at any time be resumed by His Highness if it was held by a person who was not entitled to hold it as an heir. Section 176 lays down that 'no person shall be entitled to succeed to a grant as heir whether by adoption or otherwise :

(a) if he is not a natural lineal descendant in the male line of the original grantee;

(b) if he is dumb and deaf, blind or insane; or

(c) if it is proved that he murdered, attempted or abetted the murder, or abetted an attempt to murder, the last holder or his issue.'

6. We are not concerned with Sections 177 to 181. Sections 182, 183 and 184 read-

'182. Succession shall be governed in the case of scheduled jagirs by the rule of primogeniture.

183. All grants of scheduled jagirs are only for the lifetime of the holder, and no person is entitled to succeed to such jagir until his succession is recognised and the grant is renewed in his favour by His Highness.

184. Subject always to His Highness' pleasure, the grant of a scheduled jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of this Act.'

7. The argument built by the learned counsel for the Department on Sections 182 and 183, when analysed, amounts to this that the said jagirdar held jagir only for the lifetime and no person was entitled to succeed to such jagir until his succession was recognised and the grant was renewed by His Highness and, therefore, it was an individual's property.

8. We are in complete agreement with the principle that conversion' will not alter or change the nature of the estate. Reference in this connection may be made to Ramachandra Rao v. Ramachandra Rao [1922] ILR 45 Mad 320, where their Lordships of the Judicial Committee observed that 'piece of land represented by a sum of money paid into court' was a mere conversion of the property which did not alter the character thereof. The foundation for this principle is to be found in the English law that money paid into court in regard to real property continue to remain real property. Reference in this connection may be made to White and Tudor's Leading Cases on Equity, 9th Edn., p. 325. This principle has been accepted by this court in Thakur Gopal Singh's case . It has also been followed in Krishna Ranga Rao v. State of Madras AIR 1953 Mad 185.

9. It has also not been disputed, and cannot be disputed, that the jagir of Barkana was an impartible estate. Section 182 firmly lays down the rule of primogeniture and it lends the character of impartiality to the estate. Nor can it be disputed that consequent to the resumption of the jagir of Barkana under the Abolition Act the assessee received compensation which he included in the wealth-tax returns.

10. The question, therefore, shrinks itself into this : Whether a compensation of a scheduled jagir received by the assessee is the property of the joint undivided Hindu family or the property of the assessee as an individual

11. Without elaborating the principles that have been laid down with clarity and certainty in a number of Privy Council decisions regarding the character of an impartible estate, it should be sufficient to note what their Lordships of the Supreme Court have held in this connection. The head note in Mirza Raja Pushpavathi's case AIR 1964 SC 118, admirably sums up the position thus :

'Since the decision of the Privy Council in Shiba Prasad v. Rani Prayag Kumari , it must be taken to be well settled, that an estate which is impartible by custom cannot be said to be the separate orexclusive property of the holder of the estate, If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the HUF. In the case of an ordinary joint family property, the members of the family can claim four rights : (1) the right of partition; (2) 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. It is obvious that from the very nature of the property which is impartible the first of these rights cannot exist. The second is also incompatible with the custom of impartibility. Even the right of maintenance as a matter of right is not applicable. The fourth right, viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible has, in the eyes of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis. Unlike spes successionis, the right of survivorship can be renounced or surrendered. Sartaj Kuari v. Deoraj Kuari [1888] LR 15 IA 51; ILR 10 All 272 (PC), Rama Krishna Rao v. Court of Wards [1899] LR 26 IA 83; ILR 22 Mad 383 (PC) and Rama Rao v. Rajah of Pittapur [1918] ILR 41 Mad 778 ; AIR 1918 PC 81.'

12. In State of U.P. v. Raj Kumar Rukmini Raman Brahma AIR 1971 SC 1687, it has been observed in para. 8 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 has succeeded to it by primogeniture it will be part of the joint estate of the HUF.

13. Mr. Bhandari's emphasis is that because a scheduled jagirdar held the property for his life and a grant to his successor was not a grant until his succession was recognised and the grant was renewed, it was a case of an obstructed succession and such property cannot be the property of the joint HUF. It is on this ground that he also tried to distinguish the case of Thakur Gopal Singh's case , decided by this court. He stressed that there could be no renewal of a grant unless the succession was recognised. The rule of primogeniture is firmly ingrained in jagir estate and merely because a recognition affirmed a succession it does not destroy the impartibility of the estate. So far as Thakur Bhairon Singh is concerned, he had been recognised and what was granted to him was an impartible estate.

14. The case of Thakur Gopal Singh was sought to be distinguished on the ground that it related to Mewar State although it was not disputed that its circumstances were almost similar to the facts before us. We havereferred to the 'Mewar's Qanum Mal Act No. 5 of 1947'. Chapter 11 thereof creates almost the same incidents of the jagirs in Mewar which are of the jagirs in Marwar. Section 107 of the Mewar Qanum Mal Act reads as under:

1fBdkusnkj ;k tkxhjnkj ds ejus ij mudk fBdkuk ;k tkxhj bl dkuwu ;k blds uhps cusfu;eksa ds vuqlkj muds ,sls okfjl dks Hkh th gtwj dh eatqjh ls feysxh tks ewyiq:'k ftls fBdkuk ;k tkxhj vrk gqbZ gS mlds ujhuk vkSykn esa gks A

2 fdlhHkkSfe;s ds ejus ij mldk gd HkkSe mlds okfjl dks mlds [kkunku ds fjokt dseqrkfod bl dkuwu ;k blds uhps cus fu;eksa ds vuqlkj fojklr ls feysxk] c'krsZ fddog ewy iw:'k ftldh HkkSe feyh gks] mldsss ujhuk vkSykn esa gks A

15. The succession to the Mewar jagirs had also to be recognised by His Highness, Udaipur, before the grant could continue. In this view of the matter, there is no distinction between the decision in Thakur Gopal Singh's case and the one before us. We accordingly accept the decision of our own court and see no reason to depart from the view taken therein.

16. The Wealth-tax (Amendment) Act, 1964, amended Section 4 of the Act by introducing Sub-section (6) according to which, for the purposes of W.T. Act, the holder of an impartible estate shall be deemed to be an individual owner of all the properties comprised in the estate. This amendment by the Legislature is a known aid in the matter of construction of a statute. Maxwell says, 'Not only may the later Act be construed by the light of the earlier, but it sometimes furnishes a legislative interpretation of the earlier, if it is in pari materia and the provisions of the earlier Act are ambiguous.' (Cf. Maxwell on the Interpretation of Statutes, 10th Edn., p. 35). The Legislature had recognised that an impartible estate could not be treated as individual's property and, therefore, it felt the necessity of introducing a deeming clause. We have already observed that the jagir of Barkana was an impartible estate and, therefore, we are fortified in our inference that it was the joint Hindu family property which could not be treated as the individual's property excepting under the amended provisions of Section 4, Sub-section (6) of the Act.

17. Learned counsel for the Department also urged that, under the Abolition Act, grant of maintenance allowance to certain persons was availableand compensation was given to them in lieu thereof. By declaring this compensation to be joint Hindu family property, the assessee was inviting a liability to pay the maintenance twice over. This argument has no substance. Section 27 of the Abolition Act reads as under :

'27. Amount of maintenance.--(1) Any person who, under any existing jagir law, is entitled to receive a maintenance allowance out of the income of any jagir, shall be entitled to receive, out of the compensation and rehabilitation grant payable to the jagirdar, such amount for maintenance annually as the Jagir Commissioner may fix after taking into consideration.-

(i) the amount of maintenance allowance which that person used to receive from the jagirdar before the date of resumption or was entitled to receive ;

(ii) the net income of the jagirdar from the jagir at the time of fixing the said maintenance allowance ;

(iii) the net amount of compensation and rehabilitation grant payable to the jagirdar ; and

(iv) such other matter as may be prescribed.

(2) Notwithstanding anything contained in Sub-section (1), the Government may, in the case of a widow who is entitled to such maintenance allowance continue to pay to her out of the Consolidated Fund of the State the whole or any part of the maintenance allowance during her lifer time even after the full compensation and rehabilitation grant payable under this Act have been paid to the Jagirdar.'

18. We have not been shown that the sons of the assessee were entitledto any maintenance or were receiving any independent maintenance. Theassessee has merely said that this amount is the joint Hindu family proparty of himself and his sons and from this declaration it is easy to inferthe intention of the assessee that he has impressed the compensation andother assets included in the returns with the character of undivided jointHindu family property.

19. No other point was pressed.

20. In the result, we are of the opinion that the question formulated by this court must be answered in favour of the assessees.

21. There will be no order as to costs.


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