1. The facts of this case are not subject of dispute. The zemindari of Kurupam is an impartible estate in the Vizianagaram District being one of the zemindaris mentioned in the schedule to the Impartible Estates Act. The assessee is a brother of the last zemindar of Kurupam (being the second son of his predecessor) and uncle of the present zemindar who is a minor under the Court of Wards. By an award in 1920, he was given an annual maintenance of Rs. 6,000 by his elder brother; and this award was made the subject of a decree. The question now referred to us is:
Whether the sum of Rs. 6,000 received as maintenance by the petitioner as the brother of the late Rajah of Kurupam entitled under the law to receive maintenance out of the ancestral impartible estate of Kurupam is a sum received by him as a member of Hindu undivided family within the meaning of Clause (1) Section 14 of the Act.
2. The identical question has been the subject of a decision by a Bench of the Allahabad High Court See In the matter of the Income Tax Reference of Maharaj Kumar of V(sic)nagram, 140 I. C. 306--[Ed.] in connection with another zemindar in the same District, viz., Vizianagaram and as we substantially agree with the conclusion arrived at by the learned Judges of the Allahabad High Court it is not necessary to deal with the matter very elaborately. It will be enough to indicate the salient points. The nature of an impartible estate has been the subject of consideration in a series of decisions by the Privy Council. In Baijnath Prasad Singh v. Tej Bali Singh 60 Ind Cas 531 : 43 A 228 : 9 A L J 7 : 33 C L J 388 : 40 M L J 37 : (1921) M W N 30 : 25 C W N 564 : 2 P I T 357 : 23 Bom. L R 604 : 3 U P L R P O 35 : 29 M L T 358 : 48 I A 195 (P C) Lord Dunedin considers these decisions and groups them in chronological order. The 1st group extending from 1865 to 1885 need not be referred to now. In that year the decision in Sartaj Kuar v. Devraj Kuar 10 A 272 : 15 I A 51 : 5 Sar. 139 : 12 Ind. Jur. 213 (P. C.) was passed by the Judicial Committee and it was held that an impartible zemindari is alienable at the pleasure of the holder of the zemindari. This was followed and applied in the case of a zemindari from the Presidency, viz., Sri Raja Rao Venkataswamy Mahipathi Ramakrishna Rao Bahadur v. The Court of Wards 22 M 383 : 26 I A 83 : 1 Bom. L R 277 : 3 C W N 415 : 7 Sar. 48 : 9 M L J 1 Sup. (P. C.) where it was held that, the holder of an impartible estate can devise the whole of the estate or a portion of it be will. In spite of these decisions there are other decisions passed alongside of these holding that the impartible estate still continues joint family property. It is enough to refer to one of such decisions, viz., Sri Rajah Lakshmi Devi Garu v. Sri Raja Surya Narayana Bahadur Garu 20 M 256. There Lord Davey observed:
Even if impartible it may still be part of the common family property and descendable as such.... The real question, therefore is whether it has ceased to be part of the joint family property of the family of the first zemindar.
3. These observations of Lord Davey were relied on with approval by Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind Cas 531 : 43 A 228 : 9 A L J 37 : 33 C L J 388 : 40 M L J 3(sic)7 : (1921) M W N 3(sic)0 : 25 C W N 564 : 2 P I T 357 : 23 Bom. L R 604 : 3 U P L R P O 35 : 29 M L T 358 : 48 I A 195 (P C). The next decision to which we may refer is another decision of Lord Dunedin in Rama Rao v. Rajah of Pittapur 47 Ind. Cas. 354 : 41 M 778 : 35 M L J 392 : 24 M L T 276 : 16 A L J 833 : 28 C L J 428 : 5 P L W 267 : 20 Bom. L R 1056 : 23 C W N 173 : (1918) M W N 922 : 45 I A 148 (P C), known as Second Pittapur case. At p. 784 Page of 41 M.--[Ed.] we have got the following observations:
It follows that the right to maintenance, so far as founded on or inseparable from the right of co-parcenery, begins where co-parcenery begins and ceases where co-parcenery ceases.
4. The learned Advocate for the Commissioner of Income-tax relies on this sentence and argues that, as there is no co-parcenery, therefore, there is no undivided family. The inference does not follow. Though persons may have co-parcenery rights in joint family property they may still be members of undivided family, for instance, the female members of an undivided family and disqualified heirs such as persons who are blind, deaf, dumb and soon. However, at p. 785 page of 41 M.--[Ed.], Lord Dunedin observes;
Just as the impartiality is the creature of custom, so custom may and does affirm a right to maintenance in certain members of the family.
5. Lower down he says:
In the matter in hand their Lordships do not doubt that the right of sons to maintenance in an impartible zemindari has been so often recognised that it would not be necessary to prove the custom in each case....
6. For example, in the case of Yarlagaddu Mallikarjuna Parasada Nayudu v. Yarlagadu Durga Prasada Naidu 21 M 147 : 2 Bom. L R 945 : 5 C W N 74 : 27 I A 51 : 10 M L J 294 : 7 Sar. P O J 761 (P C) the judgment says:
As to the zemindari estate, the Board held that it was impartible and the consequence is that the plaintiffs as the younger brother of the zemindar retain such right and interest in respect of maintenance as belong to the junior members of a raj or other impartible estate descindible to a single heir.
7. These questions show that in the view of Lord Dunedin the right to maintenance which the son of a zemindar still possesses is not the creature of custom but it is an incident to the ordinary joint family property which was left untouched by custom, dispute its encroachment on the incidents. The next quotation from Nilmony Singh Deo v. Rugoo Lall Singh Deo 5 C 256, viz.,
We can And no invariable or certain custom that any below the first generation from the late raj can claim maintenance as of right
8. shows that beyond the 1st generation there is the possibility that custom has made some encroachment. Therefore it was held by their Lordships that in each case the custom must be proved. The decision in Konammal v. Annadana Jadaya Gounder 108 Ind. Cas. 354 : 51 M 189 : A I R 1928 P C 68 : 27 L W 497 : 5 C W N 41 : 54 M L J 504 : 47 C L 488 : 9 P. L. T. 347 : 26 A L J 642 : 30 Bom. L. R. 802 : (192) M M W N 252 : 32 C W N 983 and Shiba Prasad Singh v. Prayag Kumari do not carry the matter further. The result is, that we must find that there is a joint family property. It has been argued that the income from which the maintenance is paid belongs solely to the zemindar but we have nothing to do with this. The question in the case is not whether the income belongs to the zemindar or whether it belongs to the joint family of which the assessee is a member but whether the assessee received his payment as a member of the undivided Hindu family. The question must, therefore, be answered in the affirmative. This is substantially the same as the answer given by the Allahabad High Court. The assessee will have Rs. 250, costs from the Income-tax Commissioner and the deposit of Rs. 100 will be returned to him.
Beasley, C. J.
9. I agree.
Sundaram Chetty, J.
10. I agree.