JUDGMENT R.K. Gulati, J.
1. At the instance of the Commissioner of Income-tax, Meerut, under Sub-section (1) of Section 64 of the Estate Duty Act, 1953, the Income-tax Appellate Tribunal, B-Bench, Delhi, has referred the following question of law for the opinion of this court:
"Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that there has been a severance of status of the ancestral Hindu undivided family property as on March 14, 1973, and in view of that the share of the deceased that passed on his death on March 23, 1973, works out to one-third of the properties ?"
2. The brief facts are that one Sri Niranjan Prakash Gupta died on March 23, 1973, leaving certain assets, both movable and immovable, in his individual as well as Hindu undivided family capacity. In the return filed by Rakesh Kumar Gupta, the accountable person and the son of the deceased, the principal value of the, assets disclosed included the value of one-third share in agricultural land measuring 9.2 acres situated near the municipal terminal, Meerut.
3. In order to justify the claim that the deceased had only one-third share in the agricultural holding aforesaid, in the assessment proceedings, it was claimed that the said agricultural land was ancestral property which had devolved on the deceased from his father, Ram Swarup, who had died before the U. P. Zamindari Abolition and Land Reforms Act, 1950, came into being. In support of this claim, copies of khatauni for 1305 and 1352 Fasli were filed. Further, the land being ancestral and Rakesh Kumar Gupta (accountable person) being the son of the deceased, having been born on June 12, 1950, i.e., before the Zamindari Abolition and Land Reforms Act, the deceased's share in the said agricultural holding was 50% at the time the Zamindari Abolition and Land Reforms Act was enforced. There is no indication about the nature of the holding before the enforcement of the said Act. It was also claimed that, as per the family settlement for the agricultural holding in question, vide application dated March 14, 1973, the correct share of the deceased was one-third only which passed on his death and one-third belonged to the accountable person while the other one-third belonged to the widow of the deceased. In terms of family settlement, it was claimed, a decree was passed by a competent court, though after the death of the deceased, with necessary modification, allocating the share of the deceased also in equal shares between the accountable person and the widow of the deceased. In other words, under the settlement decree, the son and the wife of the deceased both got 50% share each in the agricultural holding aforesaid.
4. The Assistant Controller of Estate duty rejected the case set up by the accountable person and he added 50% of the value of the agricultural holdings in the estate duty assessment of the deceased. He took the view that, according to Section 37 of the Zamindari Abolition and Land Reforms Act, the agricultural land in the case of the joint Hindu family devolved upon the male lineal descendants in the family, and the lady or wife of a living husband has no share in such agricultural holdings as women have been excluded from such rights under Section 18(3) of the Zamindari Abolition and Land Reforms Act. He held that Section 37 speaks of intermediary and "intermediary" in Section 3(12) has been defined to mean the proprietor, under-proprietor, sub-proprietor, thekedar, holder of such estate or part thereof. In the above circumstances, the Assistant Controller held that the land being ancestral, the deceased had 50% share in such agricultural holdings while the other 50% share in such agricultural holdings belonged to his son as male lineal descendant having been born before the Zamindari Abolition and Land Reforms Act came into being. Alternatively, he held that the transfer, if any, or settlement which was made by filing the application on March 14, 1973, being within two years of the death of the deceased, the same was liable to be treated as deemed gifts under Section 9 of the Estate Duty Act Accordingly, on the alternative finding also, he held that 50% of the value of the agricultural land was liable to be assessed as property passing on the death of the deceased.
5. On appeal, the Controller of Estate Duty (Appeals) upheld the claim of the accountable person on the finding that, as a result of the institution of proceedings for partition by the son of the deceased on March 14, 1973, in respect of the agricultural holdings in question, which ultimately resulted in the passing of a decree, the deceased had only a one-third share in the agricultural holdings as also in the kothi, well, trees, standing crops, etc. This view of the Controller of Estate Duty (Appeals) was upheld in second appeal at the instance of the Revenue by the Income-tax Appellate Tribunal. The Tribunal held that severance in the status of a joint family took place on March 14, 1973, when a coparcener of the family instituted the suit for partition of his share giving out his intention to become separate, unequivocally and unambiguously. For the view the Tribunal took, it relied upon a decision of the Supreme Court in the case of Kakumanu Pedasubhayya v. Kakumanu Akkamma, AIR 1958 SC 1042, and on a decision of the Orissa High Court in the case of Prithiviraj Pailo v. Kautuka Babi, AIR 1970 Orissa 4.
6. The Tribunal also rejected the alternate case of the Revenue based on Section 9 of the Estate Duty Act by holding that there being a partition in the joint family property, the wife of the karta as a member of a Hindu undivided family gets a share in the assets as of right. In these circumstances, there was no gift in her favour within the meaning of Section 9 of the Act.
7. Now, in view of the decision of the Supreme Court in the case of Kakumanu Pedasubhayya, AIR 1958 SC 1042, perhaps, it cannot be disputed that, under the Mitakshara law, a coparcener of a joint family gets a right in the ancestral property by virtue of his birth alone in the family, and should he make a demand for a partition and separate possession of his share in the family property, he is entitled to do so, notwithstanding that other coparceners of the family may not have consented to it and in such an eventuality severance in family status takes place with the institu- tion of a suit for partition. In this connection, in the above case, the Supreme Court observed as under (at p. 1046) :
"... that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not, that a division in status takes place when he expresses his intention to become separate unequivocally and unambiguously, that the filing of a suit for partition is a clear expression of such an intention, and that, in consequence, there is a severance in status when the action for partition is filed ... Viscount Haldane observed :
'A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not'."
8. If the matter had stood there, there was no difficulty in recording a definite answer to the question referred for the opinion of this court. For the reasons to be indicated hereinafter, we are of the opinion that the question referred to us is liable to be returned unanswered. On behalf of the Revenue, it was contended that the concept of joint family property and the notions of Hindu law or personal law cannot be imported into the rights created by the enforcement of the Zamindari Abolition and Land Reforms Act and the Income-tax Appellate Tribunal committed an error of law in doing so. The contention was that after the abolition of Zamindari, the legal position which may have been available before the enforcement of the Zamindari Abolition and Land Reforms Act was no longer available in view of the sweeping changes brought about in the land tenure system by the said Act. Proceeding along, learned counsel emphasised that the Zamindari Abolition and Land Reforms Act contains its own provisions regarding inheritance and transfer and under that Act, a joint family cannot hold any agricultural land to which the provisions of the said Act apply nor can any member of the family claim any beneficial interest in such land by virtue of being a member of the joint family. According to learned counsel, the agricultural holdings in question were the individual property of the deceased as his name alone had been recorded in the land revenue records. In the light of the contentions advanced before us, it was urged that the Income-tax Appellate Tribunal erred in accepting the claim of partition on the assumption that the disputed agricultural land was property to which the notions of Hindu law or personal law of a tenure-holder applied.
9. It is settled by now that, with the enforcement of the Zamindari Abolition and Land Reforms Act, all agricultural land vested in the State and new rights including Bhumidhari rights were conferred in favour of persons holding such land. However, the contentions advanced on behalf of the Revenue which we have set out earlier, in our opinion, are too broad and cannot be accepted in their entirety. The question about the applicability of the principles of Hindu law to the agricultural holdings governed by the Zamindari Abolition and Land Reforms Act, has engaged the attention of this court on several occasions. The matter was considered by one of us in a Single Bench decision (Hon'ble the Actg. C. J., K. C. Agrawal) at length in Ram Chandra Dubey v. Deputy Director of Consolidation, [1978] Revenue Decision 1. In that case, Bhumidhari land was purchased by the karta of the family utilising funds which came from the nucleus of the joint family. The question which arose for consideration was, whether in these circumstances, the acquisition could be held to be a joint family property and the other members of the family had any beneficial interest in such acquisition. Answering the question in the affirmative, on a review of several cases on the subject, it was held as under :
"Uttar Pradesh Act I of 1951 does not crystallise or declare the existing law upon the land tenure system but deliberately departs from the old law in respect of various matters. It supersedes prior law and lays down the whole of the law of succession, transfer, bequest, etc. Therefore, in cases governed by the Act, references to the previous rule of Hindu law or Mohammedan law cannot be made as it is not permissible, but the Hindu law can certainly be resorted to in respect of matters for which no provision is made in U. P. Act No. 1 of 1951. Matters saved from the operation of the Act, of course, continue to be governed by the personal law to the extent the same is applicable. The Act does not touch or affect the law of joint family ; hence the Hindu law continues to operate in this matter."
10. A Division Bench of this court in Mahendra Singh v. Attar Singh, [1967] ALJ 8 ruled that the Bhumidhari rights are special rights created by the Zamindari Abolition and Land Reforms Act and those rights are solely to be governed by the provisions of that Act. Notions of Hindu law or Mohammedan law, which would be applicable to other property, cannot be imported into the rights created under the Zamindari Abolition and Land Reforms Act. In a later case, another Division Bench of this court, in the case of Ram Narain v. Smt. Jagwanta [1970] Revenue Decision 283, held that where the land in question is joint and ancestral Khudkasht land of the father and the father and the sons were alive at the time of vesting, the other coparceners of the family have a share in such holdings. A similar view has also been expressed by a learned single Judge in Chetanya Raisingh v. Second Additional Civil Judge, [1977] AWC 289. The decisions in the cases of Mahendra Singh [1967] ALJ 8 (All) and Ram Chandra [1978] Revenue Decision 1 (All) came to be considered before another Division Bench in CED v. Shyam Sunder Jhunjhunwala, [1980] UPTC 45, where the distinction between the two cases was pointed out by observing that the decision in the case of Mahendra Singh [1967] ALJ 8 (All) was not concerned with Khudkasht land, whereas Ram Chandra's case [1978] Revenue Decision 1 (All), specifically dealt with Khudkasht land and Sir land. Thus, whether the notions of Hindu law would apply to an agricultural holding (Bhumidhari land) or not, where the Bhumidhari rights were acquired as a consequence of the enforcement of the Zamindari Abolition and Land Reforms Act, would depend upon the nature of the holding before the enforcement of the Zamindari Abolition and Land Reforms Act.
11. A consideration of the orders passed by the Income-tax Appellate Tribunal would show that it accepted the claim of severance of status applying the principles of Hindu law without first determining the character of the holding that it possessed before the Zamindari Abolition Act and without addressing itself to the relevant provisions of that Act. This, in our opinion, was necessary. In the absence of proper finding on a vital question which essentially is one of fact and necessary for a decision of this reference, we do not find it necessary to record any answer to the question referred to us.
12. The orders passed by the tax authorities create an impression that the document/application dated March 14, 1973, is a document of family settlement. As that document was likely to have a material bearing on the decision of this case, particularly in view of the terms in which the question referred is couched, the Income-tax Appellate Tribunal was required by an order of this court to submit a supplementary statement of the case enclosing a copy of the family settlement/application dated March 14, 1973.
On receipt of the supplementary statement, it has transpired that the application dated March 14, 1973, is, in fact, a copy of the plaint in the suit filed for partition of agricultural land by the deceased's son (accountable person). It is not a document of family settlement. The case before the tax authorities throughout proceeded on the finding that the application dated March 14, 1973, was a family settlement, or in any case, a partition suit filed on the basis of the so-called family settlement In the document forwarded to this court along with a supplementary statement of the case, there is no mention nor is there any claim about any family settlement. Whether there was, in fact, any family settlement or not, has also not been examined by the Income-tax Appellate Tribunal.
13. For what has been stated above, we return the reference unanswered.' The Tribunal will dispose of the appeal, after considering and examining the case in the light of what has been stated above and in accordance with law.
14. There shall be no order as to costs.