$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on:20.09.2018
% Judgment Pronounced on:05.10.2018
+ GTR 2/1981, C.M. APPL. 5764/2013 & 45861/2016 (lead case)
COMMISSIONER OF INCOME TAX ..... Petitioner
versus
BHAWANI SINGHJI ..... Respondent
+ ITA 152/2001
COMMISSIONER OF I.T. DELHI-V ..... Appellant
versus
RAJ MATA GAYATRI DEV ..... Respondent
+ ITA 218/2002, C.M. APPL.5766/2013
CIT ..... Appellant
versus
RAJ MATA GYATRI DEVI OF JAIPUR ..... Respondent
+ ITA 679/2004, C.M. APPL.5757/2013
COMMISSIONER OF INCOME TAX ..... Appellant
versus
RAJMATA GYATRI DEVI ..... Respondent
+ ITA 163/2005
COMMISSIONER OF INCOME TAX DELHI ..... Appellant
versus
RAJMATA GAYATRI DEVI OF JAIPUR ..... Respondent
GTR 2/1981 & Connected Matters Page 1 of 32
+ ITA 750/2007
THE COMMISSIONER OF INCOME TAX V ..... Appellant
versus
MAHARAJA JAI SINGH ..... Respondent
+ ITA 752/2007
THE COMMISSIONER OF INCOME TAX ..... Appellant
versus
MAHARAJA JAI SINGH INDL. ..... Respondent
+ ITA 751/2007 & ITA 763/2007
THE COMMISSIONER OF INCOME TAX-V ..... Appellant
versus
MAHARAJA PRITHVI RAJ ..... Respondent
+ ITR 137/1983, ITR 78/1981 & ITR 397/1983
CIT ..... Petitioner
versus
JAI SINGH ..... Respondent
+ ITR 297-98/1981
COMMISSIONER OF INCOME TAX ..... Petitioner
versus
BHAWANI SINGHJI ..... Respondent
+ ITR 9/1982 & C.M. APPL.5772/2013
CIT ..... Petitioner
versus
GTR 2/1981 & Connected Matters Page 2 of 32
BHAWANI SINGH ..... Respondent
+ ITR 46-47/1982
CIT ..... Petitioner
versus
GAYATRI DEVI ..... Respondent
+ ITR 95-98/1983 & ITR 221/1984
C.I.T ..... Petitioner
versus
PRITHVI RAJ ..... Respondent
+ ITR 137-39/1983
CIT ..... Petitioner
versus
JAI SINGH ..... Respondent
+ C.M. APPL.5770/2013 IN ITR 151/1983 (disposed off case), ITR
152-53/1983, ITR 271/1983 & ITR 438/1983, C.M.
APPL.5775/2013
C.I.T ..... Petitioner
versus
JAGAT SINGH ..... Respondent
+ ITR 170-71/1985
RAJMATA GAYATRI DEVI OF JAIPUR ..... Petitioner
versus
COMMR.OF INCOME TAX ..... Respondent
+ ITR 221-24/1985
MAHARAJ PRITHVI RAJ(HUF) ..... Petitioner
GTR 2/1981 & Connected Matters Page 3 of 32
versus
CIT, DELHI-VIII ..... Respondent
+ ITR 18/2000, C.M. APPL.5762/2013
COMMR.OF INCOME TAX ..... Petitioner
versus
LT.COL.BHAWANI SINGH ..... Respondent
+ WTA 2/1999
C.I.T. ..... Petitioner
versus
MAHARAJA JAI SINGH ..... Respondent
+ WTR 328-34/1984 & C.M. APPL.5773/2013
C.W.T. ..... Petitioner
versus
BHAWANI SINGH JI OF JAIPUR ..... Respondent
+ ITR 283-88/1985
C.I.T. ..... Petitioner
versus
MAHARAJ JAGAT SINGH ..... Respondent
+ WTR 300/1987, C.M. APPL.5759/2013; WTR 40-42/1987 & WTR
106-08/1990,C.M. APPL.5767/2013
CWT ..... Petitioner
versus
LT.COL BHAWANI SINGH ..... Respondent
+ WTR 3/1992 & C.M. APPL.5765/2013
GTR 2/1981 & Connected Matters Page 4 of 32
CWT ..... Petitioner
versus
SMT GAYATRI DEVI OF JAIPUR ..... Respondent
+ WTR 4/1992 & C.M. APPL.5763/2013
CWT ..... Petitioner
versus
RAJMATA GAYATRI DEVI ..... Respondent
+ WTR 24/1995 & C.M. APPL.5758/2013
CWT ..... Petitioner
versus
RAJMATA GAYATRI DEVI OF JAIPUR ..... Respondent
+ WTR 28-32/1995 & C.M. APPL.5768/2013
CWT ..... Petitioner
versus
LT COL BHAWANI SINGH ..... Respondent
+ WTR 4/1997 & C.M. APPL.5771/2013
C.W.T. ..... Petitioner
versus
RAJMATA GAYATRI DEVI OF JAIPUR ..... Respondent
+ C.M. APPL.5769/2013 IN ITR 297/1981
C.I.T ..... Petitioner
versus
BHAWANI SINGH ..... Respondent
+ C.M. APPL.5760/2013 IN ITR 46/1982
GTR 2/1981 & Connected Matters Page 5 of 32
C.I.T ..... Petitioner
versus
GAYATRI DEVI ..... Respondent
+ ITR 95/1983
C.I.T ..... Petitioner
versus
PRITHVI RAJ ..... Respondent
+ ITR 170/1985
RAJMATA GAYATRI DEVI OF JAIPUR ..... Petitioner
versus
CIT ..... Respondent
+ ITR 283/1985
C.I.T ..... Petitioner
versus
MAHARAJ JAGAT SINGH ..... Respondent
+ ITR 185-88/1989
MAHARAJ PRITHVI RAJ(HUF) ..... Petitioner
versus
C.I.T. ..... Respondent
+ C.M. APPL.5774/2013 IN WTR 40/1987
CWT ..... Petitioner
versus
LT COL BHAWANI SINGH ..... Respondent
GTR 2/1981 & Connected Matters Page 6 of 32
Through : Sh. Ajay Vohra, Sr. Advocate with Sh. D.D. Singh,
Ms.Seerat Deep Singh, Ms. Kavita Jha and Sh. Aditya Vohra,
Advocates, for Maharaja Prithvi Raj and Maharaja Jai Singh, in
ITA 152/2001.
Sh. Deepak Anand and Sh. Puneet Rai, Advocates, for appellant,
in ITA 152/2001, ITA 218/2002, ITA 679/2004, ITA 163/2005,
ITA 750/2007, ITA 751/2007, ITA 752/2007, ITA 763/2007, ITR
78/1981, ITR 297-98/1981, ITR 9/1982, ITR 46-47/1982, ITR 95-
98/1983, ITR 137-39/1983, ITR 271/1983, ITR 221/1984, ITR
397/1983, ITR 438/1983, ITR 170-71/1985, ITR 221-24/1985 &
ITR 18/2000.
Sh. Prateesh Kumar and Ms. Meera Mathur, Advocates, for
assessee, in ITA 152/2001, ITA 218/2002, ITA 679/2004, ITA
163/2005, ITA 750/2007, ITA 751/2007, ITA 752/2007, ITA
763/2007, ITR 78/1981, ITR 297-98/1981, ITR 9/1982, ITR 46-
47/1982, ITR 95-98/1983, ITR 137-39/1983, ITR 271/1983, ITR
221/1984, ITR 397/1983, ITR 438/1983, ITR 170-71/1985, ITR
221-24/1985 & ITR 18/2000, GTR 2/981, WTA 2/1999, WTR
328-34/1984, WTR 300/1987, WTR 40-42/1987, WTR 106-
08/1990, WTR 3/1992 ,WTR 4/1992 ,WTR 24/1995,WTR 28-
32/1995,WTR4/1997, ITR297/1981, ITR46/1982,
ITR 95/1983, ITR 151/1983, ITR 283/1985, ITR 185-88/1989 &
WTR 40/1987.
Sh. Manish Kumar, Sh. Yudhister Singh, Sh. Piyush Kaushik and
Sh. Y. Sarat Chandra, Advocates, for applicant, in GTR 2/981.
Sh. D.D. Singh and Ms. Seerat Deep Singh, Advocates, for
Respondent Nos. 8, 10, 15, 21, 23 and 52, in ITA 152/2001, ITA
218/2002, ITA 679/2004, ITA 163/2005, ITA 750/2007, ITA
751/2007, ITA 752/2007, ITA 63/2007, ITR 78/1981, ITR 297-
98/1981, ITR 9/1982, ITR 46-47/1982, ITR 95-98/1983, ITR 137-
39/1983, ITR 151-53/1983, ITR 271/1983, ITR 397/1983, ITR
438/1983, ITR 221/1984, ITR 170-71/1985, ITR 221-24/1985,
ITR 185-88/1989, ITR 18/2000 & GTR 2/981.
GTR 2/1981 & Connected Matters Page 7 of 32
Sh. Satyam Thareja, Advocate, for Respondent No.4, in
ITR 18/2000.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
S. RAVINDRA BHAT, J
1. The common questions of law, which arise for consideration in all
these connected gift tax references, wealth tax references, income tax
references and income tax appeals are as follows:
1. Whether, on the facts and in the circumstances of the case, the
Tribunal was right in law in holding that the assessee was not the
holder of an impartible estate?
2. Whether, on the facts and in the circumstances of the case, the
Tribunal was justified in holding that the assessee was the ·absolute
Ruler, the King, the monarch, up to the merger and after the merger
in 1949, he was reduced to the position of an ordinary citizen to
whom the provisions of Personal Law applied, he being a Hindu, the
Hindu Law?
3. Whether, on the facts, and in the circumstances of the case, the
Tribunal was justified in holding that the filing of the returns in the
status of an individual could not operate as Res judicata by conduct
against the assessee from claiming his correct status as a Hindu
Undivided Family ("H.U.F." hereafter) for income-tax purposes?
4. Whether, on the facts and in the circumstances of the case, the
Tribunal was right in law in holding that the status of the assessee
was that of a H.U.F.?
GTR 2/1981 & Connected Matters Page 8 of 32
2. Counsel for all the parties unanimously agreed that the questions be
treated as the only ones requiring determination; they were heard on the
paperbook and other materials by treating GTA 2/1981 as the lead case.
Facts of the case
3. Sawai Man Singh, a former ruler of Jaipur, was adopted on 24-03-
1921; he ascended the throne ("Gaddi") of the erstwhile princely state of
Jaipur on 7-09-1922. He ruled the Jaipur State as the Maharaja of Jaipur till
1947. With India's independence, British Paramountcy lapsed. The State of
Jaipur acceded to India by instrument of accession; the erstwhile state
thereafter merged in the United State of Rajasthan on 30-3-1949. The
covenant, dated 6-12-1949 with the Government of India recognised the
terms of accession under the terms of accession/covenants. The properties of
Jaipur State, of which Sawai Man Singh was an absolute owner up to the
merger, were divided into two categories: State properties and private
properties. Till assessment year (A.Y.) 1969-70, the late Sawai Man Singh
filed his returns of income in the status of an individual. For the A.Y. 1970-
71, a return of income was filed on 30-4-1970 in the status of an individual.
Sawai Man Singh died on 24-6-1970.
4. The return filed by late Sawai Man Singh before his death was not
available. A duplicate of that return was filed on 26-03-1970 declaring the
status of an individual. A return dated 12-02-1971 was later filed (received
in the AO's office on 19-02-1971). This was called as a revised return; it
was signed by the late Sawai Man Singh's legal heir declaring the return to
have been in the status of a HUF. The AO, keeping in view the ancestral
history of the late Sawai Man Singh and that he was earlier the ruler of
GTR 2/1981 & Connected Matters Page 9 of 32
Jaipur State, the quality of the property and the manner of its treatment by
him, held the return to be filed by the late assessee, as an individual. In so
holding, the AO took note of the history of the case, the ascension to the
gaddi, the status of late Sawai Man Singh as ruler, lapse of paramountcy in
1947, merger (of the state of Jaipur) in 1949, and the covenants of the same
year. The AO also considered the legal principles which applied, according
to him, the alienation of properties (by the late Sawai Man Singh) which he
held, showed his absolute right of disposition.
5. The status assigned by the AO and the assessment framed, was
questioned in appeal, before the AAC. The AAC traced the history of the
matter and relied on State of U.P. v. Raj Kumar Rukmani Raman Brahma
(1970) 2 SCR 355 and held that after the merger, the assessee ceased to be
the absolute ruler of the State and, therefore, the correct status was that of a
HUF. This became the subject matter of the revenue's appeal to the ITAT.
6. The ITAT logically considered the submissions advanced before it
and examined the meaning and concept of an impartible estate and whether
the erstwhile ruler, who filed income tax returns, held one such estate, and
whether the rule of primogeniture which applied to accession to the gaddi
was in any manner determinative; if not, what was the rule of succession.
The findings of the ITAT in this regard, inter alia, are as follows:
"The consensus of judicial opinion on this issue is that a holder of
an impartible estate is an absolute owner of the estate and the
mode of succession is determined by the custom being in favour of
the rule of primogeniture. That being so, we have to decide as to
how an impartible estate comes into existence. An impartible estate
which is normally ancestral is conferred by a ruler on a person for
meritorious services rendered by that person to the overlord, who
GTR 2/1981 & Connected Matters Page 10 of 32
is the ruler of the State. The holder of the impartible estate derives
authority from the overlord and, if we may say so, the impartible
estate is held under the pleasure of the overlord. That is why an
impartible estate has been treated as Zamindari to which all the
laws of the Government are applicable. The most famous
Zamindari/impartible estate is that of Maharaja Adhiraj of
Dharbhanga to which all the Indian laws were applicable even
before the abolition of Zamindari. Bettiah Raj was another
Zamindari in Bihar and an impartible estate but it was not immune
from Indian laws as would be apparent from the innumerable
litigations even on tax matters by both Zamindars and they being
reported cases need not be referred to support the proposition that
the Zamindari/impartible estate were amenable to the Indian laws.
That being so, the question which arises for determination is
whether the Maharaja of Jaipur was a holder of the impartible
estate. The history of Jaipur lies deep in the hearty past which may
be called medieval and it cannot be said that it was an impartible
estate as understood in law. The rulers of Jaipur were absolute
rulers, monarchs and, if we may call them, kings who made all
laws, who were the fountains of all laws and administered them in
the manner they wanted. Up to 1947, when India attained
independence, no Indian law was applicable to the ruler including
the Indian Penal Code and the tax laws. He administered the State
as an absolute overland and the King was undisturbed by any laws
of the British India, if we may call it so, before 1947. That being
the position, though of course the characteristic of the impartible
estate of being the absolute holder was there in case of the ruler,
but the fact that he was not amenable to any Indian laws being the
absolute owner lends different colour to the estate of the ruler. It
was not an impartible estate but a kingdom.
Therefore, during days of his rulership, he being the King, no law
including the personal law was applicable to him. But with the
lapse of Paramountancy in 1947 and the merger/covenants in
1948, the position changed. The rulers ceased to be the rulers, he
was given all the trappings of the ruler but actually he was
reduced to the position of an ordinary citizen. He become
amenable to all the laws of India as it came to be called after
independence including the Indian Penal Code and the Taxation
GTR 2/1981 & Connected Matters Page 11 of 32
laws. That is why he filed his returns of income under the Indian
Income-tax Act, 1922, and, thereafter under Income-tax Act, 1961.
Therefore, the first question which arises for consideration is as to
the nature of the status of the ruler after the merger. When the
King became an ordinary citizen after the merger and ceased to
exercise all the powers of the King, the King being a Hindu, lapsed
into the bosom of the personal laws. The ruler, therefore, came to
be governed by the provisions of the Hindu law. Therefore, our
finding is that before the merger he being the absolute ruler was
not governed by the Hindu law but after the merger as he laped
into the bosom of the personal law being a Hindu, he constituted a
HUF with his legal heirs. In coming to that conclusion, we have
taken note of the fact that the ruler did not have any self-acquired
property but had only his ancestral property which had come to
him through his ancestors and the origin of the ancestral nature of
the property is buried in the remote past.
24. At this stage his filing of returns in the status of an individual
and dabbling with the properties in the manner he liked without
caring for his limitations under the personal law become relevant.
It is undoubtedly true that the Ruler filed his returns of income up
to the assessment year 1969-70 in the status of an individual and
was assessed so. But the question is whether his declaring a status
of an individual up to the assessment year 1969-70 could
jeopardise claiming of the correct status as assignable under the
law. It is also true that the conduct of the assessee is relevant for
the purpose of determining the issue of the status but that is not the
sole determining factor. An assessee may not be aware of his
correct status in law but as and when he knows his correct status,
he has the right to claim the correct status. There can be no
dispute about the legal proposition. In respect of the fact that the
assessee continued to dispose of properties by way of transfer,
gifts, etc., even after the merger, that may be a conduct which may
appear to go against the assessee to some extent but on a deeper
thought it is not so. It is well settled that the karta of a HUF has a
limited right of disposition of HUF property. If we were to look
into the claim in terms of money in respect of the immovable
properties disposed of by the ruler, the figure appear to be
substantial. That may be so if the properties of an ordinary HUF
GTR 2/1981 & Connected Matters Page 12 of 32
are taken as the touch stone. But if the huge dimension of the
properties of the Jaipur State are taken to be account (the value of
the properties running into crores and crores) the disposition so
made by the ruler are reduced to an insignificant figure. We,
therefore, hold that the disposition made by the ruler of Jaipur did
not detract anything from the claim of the status of a HUF.
25. At this stage it would be fruitful to refer to the proposition of
the revenue detailed above. The revenue had fairly conceded that
after the death of the ruler the status was to be taken as that of a
HUF. But the other proposition propounded by the revenue cannot
be accepted because neither the assessee was the holder of an
impartible estate nor the Indian laws were applicable to him
before merger. At this stage we should refer to the decision of their
Lordships of the Supreme Court in 1970 3 SCR 631 (sic) and H.H.
Raja of Bhor's case (supra)."
Contentions of parties
7. Counsel for the revenue reiterated that succession to the gaddi, in the
erstwhile state of Jaipur was, without any known or recorded exception,
based on primogeniture. As before ITAT, the history of the ruling
Kachhawaha clans was reiterated. It was highlighted that even during late
Sawai Man Singh's lifetime, Colonel Bhawani Singh was declared as heir
apparent and that status was maintained even after merger. In support, the
White Paper on Indian States, Article XII(3) of Merger Agreement and other
historical archival material was relied on.
8. It was argued, on behalf of the revenue, by Mr. Deepak Anand, that
the late assessee, Sawai Man Singh was an absolute monarch up to 1949; in
his family, the royalty of erstwhile Jaipur state, primogeniture was accepted
and practiced. Till the state acceded to the Dominion of India through a
GTR 2/1981 & Connected Matters Page 13 of 32
Covenant entered into by the states of Rajasthan who formed the United
States of Rajasthan (by a notification gazetted in the Rajasthan Gazette on
14-1-1950), the individual rulers held absolute powers. They personified
sovereignty in their states. Succession to the gaddi and all properties
attached to the sovereign were through primogeniture; there was no question
of any member of the ruler's family laying any claim over such properties.
Of course, as head of the family, he was bound to maintain and provide for
them.
9. Mr. Anand argued that after the merger too, when the Act became
applicable, and all laws of the Union applied to the estates of the erstwhile
Maharaja of Jaipur, he continued to treat the assets as his sole assets.
Consequently, the attributes of primogeniture applied and the property had
to be assessed as individual properties, in keeping with the status claimed by
the deceased assessee in his returns till the date of his death.
10. It was asserted that the properties of the ruler were impartible given
the inviolate rule of primogeniture that applied to the erstwhile state of
Rajasthan. Learned counsel submitted that this was in no manner altered or
changed, and was in fact preserved, by virtue of Section 5 (ii) of the Hindu
Succession Act, 1956 which otherwise governed the law of succession
among Hindus after its enactment. Counsel stated that the preamble to the
Hindu Succession Act, 1956, showed that Parliamentary intention was that
the Act was only to govern succession. It had prospective effect, its object
was not to affect existing rights of holders of property living on the date of
which the Act came into force, namely, 16-6-1956. No interpretation of the
Act should be given having the effect of affecting existing rights since such
GTR 2/1981 & Connected Matters Page 14 of 32
an interpretation would result in the provisions of the Act contravening
provisions of the Constitution of India.
11. Mr. Anand argued that right from 1922 after Sawai Man Singh's
ascension to the gaddi till Rajasthan's merger into the Union of India, he
was an independent sovereign of the native State of Jaipur with
unquestioned authority of disposition of state and specified personal
properties, which were stamped with the attribute of impartibility. Nothing
in the history of the rulers of Jaipur revealed that any other member of the
family of the ruler ever claimed share in the properties, on the ground of
being member of a joint or Hindu Undivided Family. Clearly, the late
assessee and his family members understood this to be so during his
lifetime. Late Sawai Man Singh never made any distinction between his
private properties and state properties. He also disposed of immovable
property as well as gold and other movable properties in the same way as an
absolute owner would have done.
12. Counsel underlined the position of the State that the ruler was not
subject to obligations in relation either to ownership of his private properties
or to income from it. The properties held by the Maharaja therefore, by the
mere circumstance that he was a sovereign, were impartible. If the private
properties held by the assessee during his lifetime were impartible in the
sense that no other member of his family could lay claim to any right if
ownership to these properties or to require the sovereign to apply the income
therefrom in a particular manner, then the only status in which the assessee
could have been assessed in relation to the income from these properties,
irrespective of whether they were his personal property or ancestral
GTR 2/1981 & Connected Matters Page 15 of 32
property, would be as an 'individual'. Reliance was placed on Sahdeo Narain
Deo v. Kusum Kumari AIR 1923 PC 21, Commissioner of Income Tax v.
Dewan Bahadur Dewan Krishna Kishore [1941] 9 ITR 695, (PC) Raja of
Bobbili v. Commissioner of Income Tax [1937] 5 ITR 78 (Mad.) approved
in Dewan Bahadur Dewan Krishna Kishore's case (supra).
13. Mr. Ajay Vohra, learned senior counsel, and Mr. Pratyush Kapoor,
learned counsel, appearing on behalf of the assesses, urged that the
impugned judgment is sound and does not call for interference. They argued
that primogeniture is not an attribute that manifests a ruler's estate with the
quality of impartibility, per se, but that impartibility is dependent upon
custom. Counsel highlighted that right from the beginning, the well-
recognized principle that governed succession amongst rulers in India was
that they belonged to families that were joint or undivided; however,
succession to the gaddi was by succession. Furthermore, if succession to the
personal estate of the rulers too was governed by a custom that decreed
primogeniture, then alone would that principle overbear the rights otherwise
available to members of a Hindu undivided family. Counsel relied on Anant
Bhikappa Patil v Shankar Ramachandra Patil 70 M.I.A. 232 and argued that
it is custom that defines whether particular properties or communities are
governed by primogeniture. In Anant Bhikappa Patil, the Privy Council held
that:
"14. Now an impartible estate is not held in coparcenary, (Rani
Sartaj Kuari v. Rani Deoraj Kuari (1888) L.R. 15 I.A. 51), though
it may be joint family property. It may devolve as joint family
property or as separate property of the last male owner. In the
former case it goes by survivorship to that individual, among
those' male members who in fact and in law are undivided in
GTR 2/1981 & Connected Matters Page 16 of 32
respect of the estate, who is singled out by the special custom, e.g.
lineal male primogeniture. In the latter case jointness and
survivorship are not as such in point; the estate devolves by
inheritance from the last male owner in the order, prescribed by
the special custom or according to the ordinary law of inheritance
as modified by the custom. The zemindari property claimed in
Amarendra's case was adjudged to belong to the adopted son on
this last mentioned principle-that is, as heir of the last male
owner."
14. It was also argued that it is well settled that property though
impartible may be the ancestral property of the HUF. The impartibility of
the estate does not ipso facto destroy its nature as undivided family property.
Also, it does not render the estate the separate property of the last holder, as
to extinguish the right of survivorship. The estate continues to retain its
nature and character as one belonging to joint family property. Its devolution
is governed by the rule of survivorship. To prove that a family governed by
the Mitakshara system in which there is an ancestral impartible estate has
ceased to be joint, it is necessary to prove an intention, express or implied,
on the part of the junior members of the family.
15. It is argued that in the facts of this case, there was nothing on the
record to show that the revenue ever established that primogeniture was a
custom which extinguished succession to the Jaipur royal estates; it merely
eclipsed the right to certain interests, including the gaddi. Once the right to
gaddi - which originally had with it the inalienable sovereignty of the state,
was extinguished in all but name (with accession to the Indian Union), the
right to the share in the properties, of the other members of the family
(which he alone asserted in the past) became available. In other words, the
GTR 2/1981 & Connected Matters Page 17 of 32
eclipse of the joint family, ceased and the rights of other coparceners could
be asserted. Reliance was also placed on Sri Rajah Velugoti Kumara
Krishna Yachendra Varu & Ors. vs. Rajah Velugoti Sarvagna Kumara
Krishna Yachendra Varu & Ors 1969 (3) SCC 281 where the Supreme
Court stated that:
"The law regarding the nature and incidents of impartible estate is
now well settled. Impartiality is essentially a creature of custom."
16. Learned counsel also referred to Commissioner of Income Tax, Poona
vs. H.H. Raja of Bhor (1967) 65 ITR 634 where the Supreme Court
observed as follows:
"In our opinion, there is a fallacy lurking in this argument. It is
true that for the purposes of income-tax the Hindu undivided
family is assessed as a distinct entity or unit of assessment under
the provisions of the Income-tax Act, 1922; in respect of the joint
estate of the members the Hindu undivided family in taxed, though
in respect of their separate income the members are separately
taxed. But the question as to whether the present Raja of Bhor and
his two brothers have proprietary right in the Government
securities must be answered not with reference to the context and
background of Hindu law. Merely because for the purpose of
income-tax the Hindu undivided family is treated as a separate unit
of assessment, it does not follow that in the eye of Hindu law the
property of the Hindu undivided family belongs to its as a
corporate unit with a separate legal personality as distinct from
the individual family members composing it. In the present case,
the Raja of Bhor and his two brothers constituted a Mitakshara
coparcenary and it is well-established that the essence of a
coparcenary under the Mitakshara law is unity of ownership. The
ownership of the coparcenary property is in the whole body of
coparceners. As observed by the Judicial Committee in Katama
Natchiar v. Rajah of Shivagunga :
GTR 2/1981 & Connected Matters Page 18 of 32
"There is community of interest and unity of possession
between all the members of the family, and upon the death of
any one of them the other may well take by survivorship that in
which they had during the deceased's lifetime a common
interest and a common possession".
7. But it is also true that no individual members of a Hindu
coparcenary, while it remains undivided, can predicate of the joint
and undivided property, that he, that particular members, has a
definite share, one- third or one-forth - (Lord Westbury in Appovier v.
Rama Subba Aiyan). His interest in the coparcenary property is a
fluctuating interest which is capable being enlarged by death in the
family and liable to be diminished by birth in the family. It is only on
partition that the coparcener is entitled to a definite share. But the
important thing to notice is that the theory of ownership being
acquired by birth has given rise to the doctrine of samudavikaswatwa
or aggregate ownership in the Mitakshara school. Till partition
therefore all the coparceners have got rights extending over the
entirety of the coparcenary property. It is therefore manifest, in the
present case, that the property is held by the assessee on behalf of the
present Raja of Bhor and his two brothers and the assessee is
therefore entitled to exemption from income-tax on the income from
the securities."
Analysis and Reasoning
17. The most important question which needs to be decided in these
appeals- which have remained pending on the file of this court, cumulatively
for over 37 years, is whether Sawai Man Singh filed his income tax returns
in his capacity as sole and exclusive owner of impartible properties, or he
did so, for and on behalf of his joint family; if the latter is correct, the family
can claim the status of HUF; if the former is correct, the properties were
impartible and would have to devolve according to primogeniture- at least
for income tax purposes and be treated as individual. The answers to these
GTR 2/1981 & Connected Matters Page 19 of 32
questions are necessary not only to assess the returns filed at the time of the
late Sawai Man Singh's death, but also treatment of the assets and income
derived by those properties and other sources of income.
18. As to essential facts, there is no dispute; Sawai Man Singh (born Mor
Mukut) was, on 24-3-1921 adopted by the then ruler, Sawai Madho Singh II
to be his son and heir. He was named "Man Singh" upon his adoption.
Madho Singh II died on 7-9-1922 and was succeeded by Man Singh as
Maharaja of Jaipur and head of the Kachwaha clan of Rajputs. The new
Maharaja was ten years old. At the time of India's Independence in 1947,
the maharaja acceded Jaipur to the Dominion of India and on 30-3-1949, he
merged the princely state with the new state of Rajasthan. Sawai Man Singh
passed away on 24-6-1970. There is no dispute that till the time of his
passing away, the income tax returns he filed under the Act and the old
Indian Income Tax Act, 1922, were shown to be in his individual capacity.
The returns for the accounting year in which his death occurred, however,
showed that he was karta of the HUF.
19. The revenue seems to assert that since Sawai Man Singh was a ruler
and succession to the gaddi was by application of the rule of primogeniture
and given that during his life time, the late ruler had consistently filed his
income and wealth tax returns claiming individual rather than joint family
status, the estate was impartible; consequently, it was governed by lineal
primogeniture; the impartibility characteristic did not change or alter upon
his death.
GTR 2/1981 & Connected Matters Page 20 of 32
20. The earliest decision cited at the Bar was the Privy Council ruling in
Shiba Prasad Singh vs. Rani Prayag Kumari Debi & Ors. AIR 1932 PC 216
where it was held as follows:
"Impartibility is essentially a creature of custom. In the case of
ordinary joint family property, the members of the family have : (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. The first of these
rights cannot exist in the case of an impartible estate, though
ancestral, from the very nature of the estate. The second is
incompatible with the custom of impartibility as laid down in To
this extent the general law of the Mitakshara has been superseded
by custom, and the impartible estate, though ancestral, is clothed
with the incidents of self acquired and separate property. But the
right of survivorship is not inconsistent with the custom of
impartibility. This right therefore still remains, and this is what
was held in Baijnath's case A.I.R. 1921 P.C. 62. To this extent the
estate still retains its character of joint family property, and its
devolution is governed by the general Mitakshara law applicable
to such property. Though the other rights which a co-parcener
acquires by birth in joint family property no longer exist, the
birthright of the senior member to take by survivorship still
remains. No. is this right a mere spes succession is similar to that
of a reversioner succeeding on the death of a Hindu widow to her
husband's estate. It is a right which is capable of being renounced
and surrendered. Such being their Lordships' view, it follows that
in order to establish that a family governed by the Mitakshara in
which there is an ancestral impartible estate has ceased to be joint,
it is necessary to prove an intention, express or implied, on the
part of the junior members of the family to renounce their right of
succession to the estate. It is not sufficient to show a separation
merely in food and worship. Admittedly there is no evidence in this
case of any such intention. The plaintiffs therefore have failed to
prove separation, and the defendant is entitled to succeed to the
impartible estate. Being entitled to the estate, he is also entitled to
the improvements on the estate, being the immovable properties
GTR 2/1981 & Connected Matters Page 21 of 32
specified in items 9 of Schedule Kha. These improvements, in fact,
form part of the impartible estate."
Dewan Bahadur Dewan Krishna Kishore's case (supra) held as follows:
"Since the decision of the Board in Baijnath Prasad Singh v Tej
Bali Singh, it has been settled law that property though impartible
may be the ancestral property of a joint family and that in such
cases the successor falls to be designated according to the
ordinary rule of the Mitakshara. The concluding words of the
judgment delivered on behalf of the Board by Lord Dunedin in
Baijnath Prasad Singh v Tej Bali Singh are to that effect and in
that case as well as in Shiba Prasad Singh v Rani Prayag Kumari
Debi at page 345, which followed it, the keynote of the position is
- not that property which is not joint property devolves by virtue of
custom as though it had been joint - but that the general law
regulates all beyond the custom, that the custom of impartibility
does not touch the succession since the right of survivorship is not
inconsistent with the custom; hence the estate retains its character
of joint family property and devolves the general law upon that
person who being in fact and in law joint in respect of the estate is
also the senior member in the senior line.
The birth-right of the senior member to take by survivorship still
remains. Nor is this right a mere spes succession is similar to that
of a reversioner succeeding on the death of a Hindu widow to her
husbands estate. It is a right which is capable of being renounced
and surrendered.
The later cases are to the same effect. Though the co-ownership of
the junior member may be in a sense only, carrying no present
right to joint possession, if the question be whether the Hindu
undivided family or the present holder is owner of the estate the
answer of the Hindu law is that it is joint family property."
21. Again, the same principles were reiterated in State of Uttar Pradesh
vs. Rajkumar Rukmini Raman Brahma (1970) 2 SCR 355:
GTR 2/1981 & Connected Matters Page 22 of 32
"5. Since the decision of the Privy Council in Shiba Prasad Singh
v. Rani Prayag Kumari Devi 59 I.A.331 it must be taken to be well
settled 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 a part of the joint estate
of the undivided Hindu family. 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 from
the very nature of the property which is impartible that the first of
these rights cannot exist. The second is also incompatible with the
custom of impartiality as was laid down by the Privy Council in the
case of Rani Sartaj Kuari v. DeorajKuari 15 I.A.51 and the First
Pittapur case 26 I.A.83 The right of maintenance and the right of
survivorship, however, still remain and it is by reference to these
rights that the property, though impartible has, in the eye 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 spessuccessionis"
22. In Nagesh Bisto Desai and Ors. vs. Khando Tirmal Desai and
Ors (1982) 2 SCC 79, the Supreme Court held as follows:
"Since the decision of the Privy Council in Shiba Prasad Singh's
case (supra), it is well-settled that an estate is impartible does not
make it the separate and exclusive property of the holder : where
the property is ancestral and the holder has succeeded to it, it will
be part of the joint estate of the undivided family.
20. The incidents of impartible estate laid down by the Privy
Council in Shiba Prasad Singh's case, supra, and the law as there
stated, have been reaffirmed in the subsequent decisions of the
Privy Council and of this Court : Collector of Gorakhpur v. Ram
Sundar Mai and Ors. I.L.R. (1934) 61 I. A. 286. Commissioner of
Income Tax, Punjab, v. Krishna Kishore L.R. (1941) 68 I.A 155
Anant Bhikappa Patil v. Shankar Ramchandra Patil L.R. 1942 70
GTR 2/1981 & Connected Matters Page 23 of 32
I.A 232 Chinnathavi Alias Veeralakshmi v. Kutasekara Pandiya
Naicker and Anr. [1952]1SCR241. Mirza Raja Shri Pushavathi
Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors. v. Shri
Pushavathi Viseswar Gajapathi Raj and Ors. [1964]2SCR403
Rajah Velugoti Kumara Krishna Yachendra Varu and Ors. v.
Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and
Ors. [1970]3SCR88 and Bhaiya Ramanuj Pratap Deo v. Lalu
Maheshanuj Pratap Deo and Ors. [1982]1SCR417.
21. In Collector of Gorakhpur v. Raw Sundar Mai's case, supra, it
was observed that though the decision of the Board in Sartaj
Kuari's case and the First Pittapur's case appeared to be
destructive of the doctrine that an impartible zamindari could be in
any sense joint family property, this view apparently implied in
these cases was definitely negatived by Lord Dunedin when
delivering the judgment of the Board in Baijnath Prasad Singh's
case. In Commissioner of Income Tax, Punjab v. Krishna Kishore's
case dealing with an impartible estate governed by the Madras
Impartible Estates Act, 1904, it was held that the right of junior
members of the family for maintenance was governed by custom
and was not based on any joint right or interest in the property as
co-owners. In Anant Bhikappa Patil's case supra, it was observed
that an impartible estate is not held in coparcenary though it may
be joint family property. It may develop as joint family property or
as separate property of the last male holder. In the former case, it
goes by survivorship to that individual, among those male
members who in fact and in law are undivided in respect of the
estate, who is singled out by the special custom e.g. lineal male
primogeniture. In the latter case, jointness and survivorship are
not as such in point the estate devolves by inheritance by the last
male holder in the order prescribed by the special custom or
according to the ordinary law of inheritance as modified by the
custom.
22. In Chinnathavi's case, supra, it was observed that the dictum of
the Privy Council in Shiba Prasad Singh case, supra, that to
establish that an impartible estate has ceased to be joint family
property for purposes of succession, it is necessary to prove an
intention, express or implied, on the part of the junior members of
GTR 2/1981 & Connected Matters Page 24 of 32
the family to give up their chance of succeeding to the estate. The
test to be applied is whether the facts show a clear intention to
renounce or surrender any interest in the impartible estate or a
relinquishment of the right of succession and an intention to
impress upon the zamindari the character of separate property. In
Mirza Raja Gajapathi's case, supra, it was observed that an
ancestral impartible estate to which the holder has succeeded by
the custom of primogeniture is part of the joint estate of the
undivided Hindu family. Though the other rights enjoyed by the
members of a joint Hindu family are inconsistent in the case of an
impartible estate, the right survivorship still remains. In Rajah
VelugotiKumara Krishna's case, supra, it was observed that the
only vestige of the incidents of joint family property, which still
attaches to the joint family property is the right of survivorship
which, of course, is not inconsistent with the custom of
impartibility. In BhaiyaRamanuj Pratap Deo's case, supra, the
principles laid down by the Privy Council in Shiba Prasad Singh's
case were reiterated.
23. In the course of argument, great reliance was placed on the
two decisions of this Court in Mirza Raja Ganapath Vs case, supra
and Raja Velugoti Kumara Krishna's case, supra, for the
proposition that the junior members of a joint family in the case of
an ancient impartible joint family estate take no right in the
property by birth and therefore have no right, of partition having
regard to the very character of the estate that it is impartible. To
our mind, the contention cannot be accepted. Both the decisions in
Mirza Raja Ganapathi's case, supra, and Raja Velugoti Kumara
Krishna's case, supra, turned on the provision of the Madras
Estates (Abolition & Conversion into Ryotwari) Act, 1948 and the
Madras Impartible Estates Act, 1904. There are express provisions
made in Sections 45 to 47 of the Abolition Act for the
apportionment of compensation to the junior members of
zamindari estates and subs (2) of Section 45 thereof provides for
payment of the capitalised value of the compensation amount to
them on the basis of extinction of the estate. The scheme of the
Abolition Act therefore contemplates the continued existence of the
rights of the holder of an impartible estate vis-a-vis the junior
GTR 2/1981 & Connected Matters Page 25 of 32
members of such an estate. The facts involved in those cases were
also entirely different.
24. In Mirza Raja Ganapath's case, supra it was a suit for
partition for Vizianagram Estate, an ancient impartible estate
governed by the Madras Impartible Estates Act 1904. The claim of
the junior members regarding buildings which had been
incorporated in the impartible estate as also their claim with
regard to jewels treated as state regalia and therefore impressed
with the family custom of impartibility was negatived. It was held
that despite the fact that Vizinagram Estate had been notified to be
an estate within the meaning of Section 3 of the Madras
Estate(Abolition and Conversion into Ryotwari) Act,1948, the
extinguishment of the proprietary right, title and interest of the
zamindar did not affect his right or title to the impartible
properties outside the purview of that Act and governed by the
Madras Impartible Estates Act, 1904, but as regards other
properties falling within the zamin-dari including lands were held
to be partible. With regard to the buildings, it was held that the
buildings in question were not partible by virtue of Sub-section (4)
of Section 18 of the Act as the buildings falling within the section
vested in "the person who owned them immediately before the
vesting". The expression "the person who owned" in Sub-section
(4) of Section 18 of the Act was held to refer to the land-holder and
not to any other person. Further, the buildings were outside the
limits of the zamindari estate and therefore not covered by Section
3 of the Abolition Act. The claim with regard to jewels failed
because they were part of the impartible estate.
25. In Raja Velugoti Kutnara Krishna's case, supra, it was a suit
for partition by the junior members of Vankatgiri Estate, an
ancient impartible estate governed by the Madras Impartible
Estates Act, 1904. The suit was principally confined to the claim
for a share to the Schedule B properties. The contention was that
the impartibility was continued under that Act but ceased when the
estate vested in the State Government under Section 3 of the
Madras Estates (Abolition and Conversion into Ryotwari) Act,
1948 and this had the effect of changing character of the
properties in the B Schedule and making them partible. It was said
GTR 2/1981 & Connected Matters Page 26 of 32
that the junior members had a present right in the impartible estate
and were entitled to share in the properties once it lost its
character of impartibility. The Court had to consider the effect of
the Abolition Apt on the rights and obligations of the members of
the family and held that the Abolition Act has no application to
properties which are outside the territorial limit of the Venkatgiri
Estate. The claim that failed was in relation to properties which
did not form part of a 'zamindari estate' within the meaning of
Section 1(16) and therefore did not come within the purview of
Section 3 of the Abolition Act but continued to be governed by the
Madras Impartible Estates Act, 1904."
23. Again, the same principles were approved and applied in Anant Kibe
and Ors. vs. Purushottam Rao and Ors.1984 (Supp) SCC 175 where the
court held that" The incidents of impartible estate laid down in Shiba
Prasad Singh's case and the law there stated have been reaffirmed in the
subsequent decisions of the Privy Council and of this Court..." Then, after
quoting Nagesh Bisto Desai (supra) the Supreme Court held that
"Impartibility is essentially a creature of custom. Here it is a term
of the grant. The junior members of a joint family in the case of
ancient impartible joint family estate take no right in the property
by birth and therefore have no right of partition having regard to
the very nature of the estate that it is impartible.....The
impartibility of the tenure governed by the Jagir Manual of the
Holkar State and the rule of lineal primogeniture governed by the
Jagir Manual, Chapter II, Rules 2 and 3 did not per se destroy its
nature as joint family property or render it the separate property
of the last holder so as to. destroy the right of survivorship ; the
estate retained its character of joint family property and its
devolution was governed by the rule of lineal primogeniture. To
establish that a family governed by the Mitakshara in which there
is an impartible estate has ceased to be joint, it is necessary to
prove an intention, express or implied on the part of the junior
members of the family to renounce their succession to the estate."
GTR 2/1981 & Connected Matters Page 27 of 32
24. The last decision in this series is Revathinnal Balagopala Varma vs.
Padmanabha Dasa Bala Rama Varma, 1993 Supp (1) SCC 233, which held
that:
"40. That respondent No. 1 was a sovereign and the properties in
dispute as held by the sovereign rulers from time to time were
impartible has not been disputed by the learned Counsel for the
appellant before us. What has been urged by him, however, is that
the properties in dispute belonged to a tarwad and were as such
joint Hindu family properties and the attribute of impartibility
applied to them because by custom only the eldest member of the
family could be the ruler and to maintain his dignity and status it
was necessary to make these properties impartible.
41. In this connection it has to be kept in mind that the mode of
succession of a sovereign ruler and the powers of such a ruler are
two different concepts. Mode of succession regulates the process
whereby one sovereign ruler is succeeded by the other. It may inter
alia be governed by the rule of general primog(sic)iture or lineal
primogeniture or any other established rule governing succession.
This process ends with one sovereign succeeding another.
Thereafter what powers, privileges and prerogatives are to be
exercised by the sovereign is a question which is not relatable to
the process of succession but relates to the legal incidents of
sovereignty.
42. If some-one asserts that to a particular property held by a
sovereign the legal incidents of sovereignty do not apply, it will
have to be pleaded and established by him that the said property
was held by the sovereign not as a sovereign but in some other
capacity. In the instant case apart from asserting that the
properties in suit belonged to a joint family and Respondent No. 1
even though a sovereign ruler, held them as the head of the family
to which the property belonged, the appellant has neither
specifically pleaded nor produced any convincing evidence in
support of such an assertion. It has been urged on behalf of the
appellant that only the eldest male off-spring of the Attingal Ranis
could, by custom, be the ruler and all the heirs of the Ranis who
GTR 2/1981 & Connected Matters Page 28 of 32
constituted joint Hindu family would be entitled to a share in the
properties of the Ranis and the properties in suit were held by
Respondent No. 1 as head of the tarwad even though impartible in
his hands. This plea has been repelled by the trial court as well as
by the High Court and nothing convincing has been brought to our
notice on the basis of which the presumption canvassed on behalf
of the appellant could be drawn and the findings of the courts
below reversed."
25. There is no material on record to show that the Kachwaha clans
(which the Jaipur royal house belonged to) was governed by the rule of
lineal primogeniture, where the eldest male member of the family became
the exclusive owner of all properties which were impartible. Nor was such
special custom proved in relation to the Jaipur royal house. What could be
and was established was that succession to the gaddi (the throne) was by
lineal primogeniture. Consistent with the law declared by the Privy Council
and the principles of those decisions, applied by the Supreme Court in
several judgments, the only conclusion that could be drawn therefore, was
that though succession to the gaddi was through lineal primogeniture at a
time when the monarchy was absolute which meant that such practice
overlaid the right of other members to claim a share in the HUF, upon
accession of the princely state of Jaipur, only those properties and privileges
which the late Sawai Man Singh retained to himself, were saved. No custom
of law, of the kind visualized by Section 5 of the Hindu Succession Act, in
relation to lineal primogeniture or impartible properties in relation to these
assets were saved. All else became subject to laws of the country. Thus, the
late Maharaja had to and did file tax returns, declaring his wealth and
income, in accordance with the laws of the land. He was governed by the
ordinary rules of inheritance applicable to members of HUF.
GTR 2/1981 & Connected Matters Page 29 of 32
26. Counsel for the assessee had produced the Covenant forming the
United States of Rajasthan, which then acceded to the Union of India. The
covenant, notified on 12-1-1950 (in the Gazette of Rajasthan) inter alia,
provided that:
"ARTICLE XII
(1) The Ruler of each Covenanting State shall be entitled to the full
ownership, use and enjoyment of all private properties (as
distinct from State properties) belonging to him on the date of
his making over the administration of that State to the
Rajpramukh of the former Rajasthan State or as the case may
be to the Raj Pramukh of the United State under this Covenant.
(2) ....
ARTICLE XIV
(1) The succession according to the law and custom, to the gaddi,
of each Covenanting state and to the personal rights, privileges,
dignities, and titles of the Ruler thereof, is hereby guaranteed.
(2) Every question of the disputed accession in regard to a
Covenanting State shall be decided by a Council of Rulers after
referring it to the High Court of the United State and in
accordance with the opinion given by the High Court."
27. From the materials on record, in these appeals, there is nothing to
suggest that the succession to the estate of the ruler- or his family (other than
succession to the gaddi) was governed by the principle of primogeniture. In
these circumstances, the law on the subject is clear: sans evidence of a pre-
existent custom with respect to primogeniture (as the overarching rule of
succession, to the exclusion of all heirs) the general law of succession, i.e.
the rules applicable to HUF, would apply.
28. Calcutta Discount Co. Ltd. v. Income-Tax Officer, Companies (1961)
041 ITR 0191 is a decision for the proposition that it is for the assessing
GTR 2/1981 & Connected Matters Page 30 of 32
officer (AO) to draw the correct conclusions, regardless of the position of
the assessee: "It is for him to decide what inferences of facts can be
reasonably drawn and what legal inferences have ultimately to be drawn. It
is not for somebody else-far less the assessee - to tell the assessing authority
what inferences-whether of facts or law should be drawn. Indeed, when it is
remembered that people often differ as regards what inferences should be
drawn from given facts, it will be meaningless to demand that the assessee
must disclose what inferences-whether of facts or law-he would draw from
the primary facts...". Therefore, it is now established that regardless of what
an assessee claims, if the correct position deducible from primary facts is
otherwise, the AO has to adopt that correct position. Consequently, it is held
that merely because the late assessee (Sawai Man Singh) repeatedly claimed
individual status while filing his returns, the correct legal status was as an
individual and not HUF. Therefore, in the opinion of this court, there was
no legal impediment for the legal representatives of the assessee to claim
that the succession was of the HUF, upon the death of Sawai Man Singh.
29. Jyeshthaadhikaar (the rule of primogeniture) in the case of a ruler
apparently was based on indivisibility of sovereignty (samprabhuta). That
the revenue asserts such a rule, is anachronistic, to say the least. With the
accession (to the Indian Republic) of the erstwhile state of Jaipur, the ruler
ceased to have any "sovereign" rights. Coming into force of the Constitution
and Article 18 (which abolishes titles) the right to claim to be addressed as
a Maharaja ceased, legally. Yet, the Indian Constitution guaranteed to
erstwhile rulers, certain privileges and rights, through Article 291. These
rights were repealed by the 26th Constitution Amendment Act, 1971.
Therefore, the succession to the gaddi (of an erstwhile principality) has no
GTR 2/1981 & Connected Matters Page 31 of 32
consequence, except as a social custom. In all respects, and for all intents
and purposes the erstwhile royal family of the Jaipur state are citizens of the
republic. An important facet: which needs to be considered at an appropriate
stage is that in such situations, the provisions of the Hindu Succession Act,
1956 will apply; all classes of heirs- male and female, entitled to its benefits
would be covered by it. To hold otherwise would be startling, because the
incidents of a HUF, at least after the 2005 amendment would then be
markedly denied only on the ground of gender (contrary to Article 15 (2) of
the Constitution of India), to female heirs. Article 14 guarantees equality
before law and equal protection of law. The sequitur to holding that not all
members of the family of an erstwhile royal family, but only one class (i.e.
male coparceners) would be entitled to share and other interests in the estate
is anathema to the Constitution. These observations have been made given
the passage of time that has occurred and the march in the understanding of
the Constitution of India. There are no "dark corners" of the society or legal
space which are immune to its reach and sweep.
30. The questions of law framed in all these appeals are accordingly
answered against the revenue. The Revenue's appeals are therefore,
dismissed and the appeals of the assesses are allowed, in the above terms.
S. RAVINDRA BHAT
(JUDGE)
A.K.CHAWLA
(JUDGE)
OCTOBER 05, 2018
GTR 2/1981 & Connected Matters Page 32 of 32
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