1. The Income-tax Appellate Tribunal, Jaipur Bench, Jaipur ('the Tribunal' herein), has referred the following question for the decision of this court:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the interest of the appellant in the property was ancestral and as such constituted Hindu undivided family property in his hands ?'
2. The Mahantship was originally conferred on the ancestors of the assessee-respondent by Her Highness the Rajmata of Jodhpur. The relevant part of the grant reads as under :
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3. The English translation of the material portion of the grant is as under:
'Her Highness the Rajmata, the third 'Bhatiyaniji' pays her respects to Shri Mahant Motiramji and declares that there is a temple of Shri Raghunathji constructed by me on Gulabsagar. The sewa, supervision and control of the said temple has been gifted to you by me by my free will.
You and your disciples, sons, grandsons, great grandsons would do 'Sewa' to this temple.'
4. The pedigree table may also be stated :
Someshwar (aged 16 years).
5. The assessee claimed that the properties are held by him on behalf of his family as its karta. The assessment years involved are 1972-73 and 1973-74. The Wealth-tax Officer did not accept the status of the assessee-respondent as the karta of a Hindu undivided family. According to him (WTO),the grant was made to the original grantee (ancestor of the assessee) in his individual capacity and after his death the property has passed on from Guru to Chela and that it was merely by coincidence that the chela each time turned out to be the son of the Guru. He, therefore, recorded the finding that the properties were not ancestral in the hands of the assessee-respondent. He, therefore, assessed him in his capacity as an individual regarding the properties granted to him by the aforesaid grant. The assessee filed an appeal. The Appellate Assistant Commissioner after examining the terms of the grant came to the conclusion that the property was ancestral in the hands of the assessee-respondent and, therefore, he should have been assessed as the karta of the Hindu undivided family. The Department filed further appeal before the Tribunal. The Tribunal agreed with the Appellate Assistant Commissioner and dismissed the appeal. The Tribunal has observed in its order dated December 28, 1977, as under :
'A reading of the aforesaid grant clearly shows that the property in question was given to Shri Motiramji and it was to remain in his family from son to grandson. It did not pass from the Guru to the Chela. What is the nature of the property granted the succession to which passes from father to son is not in dispute in the present appeals. We, therefore, express no opinion as to the nature of the property which was given by Her Highness the Rajmata of Jodhpur to Mahant Motiram by virtue of the aforesaid grant. Sufficient to say that the interest which the present appellant, Shri Tulsi Das, derived in the aforesaid property was ancestral and as such constituted Hindu undivided family property in his hands. The decision of the Appellate Assistant Commissioner on this point is correct.'
6. We have heard Mr. B.R. Arora for the Revenue as nobody has appeared on behalf of the assessee non-petitioner.
7. A perusal of the pedigree table shows that Sita Ram was the father of the assessee-respondent. All properties inherited by the assessee from his father are ancestral property in his hands as regards his issues. Someshwar is the son of the assessee-respondent and, therefore, the property inherited by the assessee-respondent became Hindu undivided family property as soon as Someshwar was born. A perusal of the grants shows that the properties were given absolutely and unconditionally by way of gift to the original grantee Motiram. He was to do 'sewa puja' of the deity and also to perform other religious ceremonies. This was to be continued by his chela, sons, grandsons and great grandsons. It is thus clear that the interest which devolved on the assessee-respondent in the properties was ancestral. The properties granted to Motiram devolved from generation to generation. The properties in the hands of the assessee arethus ancestral and as such belong to the Hindu undivided family of which he (assessed) was a karta.
8. Having considered the reasons given by the Tribunal in its order dated April 28, 1977, we are of the opinion that the Tribunal was justified when after construing the grant it came to the conclusion that the interest of the assessee-respondent in the properties was ancestral and, as such, it constituted Hindu undivided family properties in his hands.
9. We, therefore, answer the aforementioned question in the affirmative, i.e., in favour of the assessee and against the Revenue.
10. There will be no order as to costs.
11. The Tribunal should be informed about this decision in accordance with Section 260(1) of the Act.