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PETITIONER: COMMISSIONER OF WEALTH TAX. KANPUR ETC. ETC.

       Vs.

RESPONDENT: CHANDER SEN ETC.

DATE OF JUDGMENT16/07/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S.

CITATION:  1986 AIR 1753            1986 SCR  (3) 254  1986 SCC  (3) 567        1986 SCALE  (2)75  CITATOR INFO :  F          1987 SC 558  (10)  RF         1991 SC1654  (27)

ACT:      Hindu Succession  Act, 1956-ss. 4, 8 and 19-Property of father who  dies  intestate-Whether  devolves  on  son,  who separated  by  partition  from  his  father,  in  individual capacity or Karta of his HUF.      Wealth Tax  Act, 1957-ss.  3 and  4-Property  inherited under  s   8  Hindu  Succession  Act,  1956-Whether  HUF  or individual property.      Income Tax  Act, 1961/Income  Tax Act, 1922-Income from as sets  inherited by  son from father-Whether assessable as individual income.

HEADNOTE:      Rangi Lal  and his  son Chander Sen constituted a Hindu undivided family.  They had  some immovable property and the family business. By a partial partition the HUF business was divided between  the two and thereafter it was carried on by a partnership  consisting of  the two. The house property of the family  continued to remain joint. The firm was assessed to income-tax as a registered firm and the two partners were separately assessed in respect of their share of income. The mother and  wife of  Rangi Lal having pre-deceased him, when he died  he left behind him his only son Chander Sen and his grandsons. On  his death  there  was  a  credit  balance  of Rs.1,85,043 in his account in the books of the firm.      In the  wealth tax  assessment for  the assessment year 1966-67, Chander  Sen, who  constituted a  joint family with his own  sons, filed a return of his net-wealth by including the property of the family which u on the death of Rangi Lal passed on to him by survivorship and, also the assets of the business which devolved upon him on the death of his father. The sum  of R.S.. l ,85,0 13 standing to the credit of Rangi Lal was,  however, not  included in  the net-wealth  of  the assessee-family. Similarly, in the wealth tax assessment for the assessment  year 1967-68  a sum  of Rs.1,82,742  was not included, in  the net  wealth of the assessee family. It was contended that these amounts devolved on Chander Sen 255 in his  individual capacity and were not the property of the

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assessee family.  The Wealth-tax officer did not accept this contention and  held that  these sums  also belonged  to the assessee-family.      A sum  of Rs.23,330 was also credited to the account of late Rangi Lal on account of interest accruing on his credit balance. In the proceedings under the Income Tax Act for the assessment year 1367-68 this sum was claimed as deduction on the same ground. The Income-tax officer disallowed the claim on the  ground that  it was a payment made by Chander Sen to himself.      On appeal,  the  Appellate  Assistant  Commissioner  of Income-tax accepted  the assessee’s  claim in  full and held that the  capital in  the name  of  Rangi  Lal  devolved  on Chander Sen  in his  individual capacity and as such was not to be included in the wealth of the assessee family. The sum of Rs.23,330  on account of interest was also directed to be allowed as deduction.      The Income-tax Appellate Tribunal dismissed the appeals filed by  the Revenue  and its  orders were  affirmed by the High Court.      On the  question: "Whether  the income or asset which a son inherits  from his  father when  separated by  partition should be  assessed as  income of the Hindu Undivided Family consisting of  his own  branch including  his  sons  or  his individual income", dismissing the appeals and Special Leave Petition of the Revenue, the Court, ^      HELD: 1.  The sums  standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family. The  interest   of  Rs.23,330   was   an allowable deduction  in respect  of the income of the family from the business. [268C-D]      2.1 Under  s. 8  of the Hindu Succession Act, 1956, the property of  the father  who dies  intestate devolves on his son in  his individual  capacity and not as Karta of his own family. Section  8 lays down the scheme of succession to the property of a Hindu dying intestate. The Schedule classified the heirs  on  whom  such  property  should  devolve.  Those specified in class I took simultaneously to the exclusion of all other  heirs. A  son’s son  was not mentioned as an heir under class  I of the Schedule, and, therefore, he could not get any  right in  the property of his grandfather under the provision. [265F-G] 256      2.2 The  right of  a son’s  son  in  his  grandfather’s property during  the lifetime  of his  father which  existed under the  Hindu law  as in  force before  the Act,  was not saved expressly  by the  Act,  and  therefore,  the  earlier interpretation of  Hindu law giving a right by birth in such property "ceased  to have effect". So construed, s. 8 of the Act should  be taken  as a  self-contained provision  laying down the  scheme of  devolution of  the property  of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on  the death of his father intestate after the coming into force  of the  Hindu  Succession  Act,  1356,  did  not constitute  HUF   property  consisting  of  his  own  branch including his sons. [265G-H; 266A-C]      2.3 The  Preamble to  the Act states that it was an Act to amend and codify the law relating to intestate succession among  Hindus.  Therefore,  it  is  not  possible  when  the Schedule indicates  heirs in  class I  and only includes son and does  not include  son’s son  but does  include son of a predeceased-son, to  say that when son inherits the property in the  situation contemplated by s. 8, he takes it as Karta of his own undivided family. [267C-D]

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    2.4 The Act makes it clear by s. 4 that one should look to the  Act in  case of  doubt and  not to  the pre-existing Hindu law.  It would  be difficult  to hold  today that  the property which  devolved on  a Hindu  under s.  X of the Act would be  HUF in  his hand vis-a-vis his own son; that would amount to  creating two classes among the heirs mentioned in class I,  the male  heirs in  whose hands  it will  be joint Hindu family  property and  vis-a-vis sons  and female heirs with respect  to whom  no such  concept could  be applied or contemplated. [267E-G]      2.5 Under  the Hindu  law, the property of a male Hindu devolved on  his death  on his sons and the grandsons as the grandsons also have an interest in the property. However, by reason of  s. 8  of the Act, the son’s son gets excluded and the son  alone inherits the properly to the exclusion of his son. As  the effect  of s.  8 was directly derogatory of the law  established  according  to  Hindu  law,  the  statutory provisions must prevail in view of the unequivocal intention in the  statute itself, expressed in s. 4(1) which says that to the extent to which provisions have been made in the Act, those provisions  shall override  the established provisions in the texts of Hindu Law. [264G-H; 265A-B]      2.6 The intention to depart from the pre-existing Hindu law was  again made  clear by  s. 19 of the Hindu Succession Act which stated that 257 if two  or more heirs succeed together to the property of an intestate, they  should take  the  property  as  tenants-in- common and  not as  joint tenants and according to the Hindu law as  obtained prior  to Hindu  Succession Act two or more sons succeeding  to their  father’s property  took  a  joint tenants and  not tenants-in-common.  The Act,  however,  has chosen  to  provide  expressly  that  they  should  take  as tenants-in-common. Accordingly  the property  which devolved upon heirs  mentioned in  class I of the Schedule under s. 8 constituted the  absolute properties  and his  sons have  no right by birth in such properties. [266F-H]      Commissioner of  Income-tax, U.  P.  v.  Ram  Rakshpal, Ashok Kumar,  67  I.T.R.  164;  Additional  Commissioner  of Income-tax, Madras  v. P.L.  Karuppan Chettiar,  114  I.T.R. 523; Shrivallabhdas  Modani v.  Commissioner of  Income-Tax, M.P-I., 138  I.T.R. 673  and Commissioner of Wealth-Tax A.P. II v. Mukundgirji 144 I.T.R. 18, approved.      Commissioner of  Income-tax, Gujarat-l  v. Dr. Babubhai Mansukhbai (Deceased), 108 I.T.R. 417, overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 166870 of 1974 etc.      From the  Judgment and  order dated  17.8.1973  of  the Allahabad High  Court in  W.T. Reference No. 371 of 1971 and I.T. Reference No. 452 of 1971.      V.S. Desai, and Miss A. Subhashini for the Appellants.      P.K. Mukharjee and A. K. Sengupta for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. These appeals arise by special leave from the decision of the High Court of Allahabad dated 17th August,  1973. Two  of these  appeals are in respect of assessment years  1966-67 and  1967-68 arising  out  of  the proceedings under  the Wealth  Tax Act,  1957. The connected reference was  under the Income-Tax Act, 1961 and related to the assessment  year 1968-69. A common question of law arose in all  these cases  and these  were disposed of by the High

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Court by a common judgment.      One Rangi  Lal and  his son  Chander Sen  constituted a Hindu 258 undivided family.  This family  had some  immovable property and the  business carried on in the name of Khushi Ram Rangi Lal. On  October 10,  1961, there was a partial partition in the family  by which  the business  was divided  between the father and  the son,  and thereafter, it was carried on by a partnership consisting  of the two. The firm was assessed to income-tax as  a registered  firm and  the two partners were separately assessed in respect of their share of income. The house property  of the  family continued to remain joint. On July 17,  1965, Rangi  Lal  died  leaving  behind  his  son, Chander Sen,  and his  grandsons, i.e.  the sons  of Chander Sen. His wife and mother predeceased him and he had no other issue except  Chander Sen.  On his  death there was a credit balance of  Rs.1,85,043 in  his account  in the books of the firm.  For  the  assessment  year  1966-67  (valuation  date October 3,  1965), Chander  Sen,  who  constituted  a  joint family with  his own sons, filed a return of his net wealth. The return  included the property of the family which on the death of  Rangi Lal passed on to Chander Sen by survivorship and also  the assets  of the  business which  devolved  upon Chander  Sen  on  the  death  of  his  father.  The  sum  of Rs.1,85,043 standing  to the  credit of  Rangi Lal  was  not included in  the net  wealth of  the family  of Chander  Sen (hereinafter referred  to as  ’the assessee-family’)  on the ground that  this amount  devolved on  Chander  Sen  in  his individual  capacity   and  was  not  the  property  of  the assessee-family. The  Wealth-tax officer did not accept this contention  and  held  that  the  sum  of  Rs.1,85,043  also belonged to the assessee-family.      At the close of the previous year ending on October 22, 1962, relating  to the  assessment year  1967-68, a  sum  of Rs.23,330 was  credited to  the account of late Rangi Lal on account of  interest accruing  on his credit balance. In the proceedings under the Income-tax Act for the assessment year 1967-68, the  sum of  R.S.. 23,330 was claimed as deduction. It was  alleged that  interest was due to Chander Sen in his individual capacity  and was  an allowable  deduction in the computation of  the business  income of the assessee-faimly. At the  end of the year the credit balance in the account of Rangi Lal  stood at Rs.1,82,742 which was transferred to the account of Chander Sen. In the wealth-tax assessment for the assessment year  1967-68, it  was claimed, as in the earlier year, that  the credit  balance in  the account of Rangi Lal belonged to  Chander Sen  in his individual capacity and not to the assessee-family. The Income-tax officer who completed the assessment  disallowed the claim relating to interest on the ground  that it  was a  payment made  by Chander  Sen to himself. Likewise,  in the wealth-tax assessment, the sum of Rs.1,82,742 was  included by  the Wealth-tax  officer in the net wealth  of the  assessee-family. On appeal the Appellate Assistant Commissioner of Income-tax accepted the assessee’s claim in 259 full. He held that the capital in the name of Rangi Lalluded in the  wealth of the assessee-family. He also directed that in the income-tax assessment the sum of Rs.23,330 on account of interest should be allowed as deduction. The revenue felt aggrieved and  filed three  appeals  before  the  Income-tax Appellate Tribunal,  two against  the assessments  under the Wealth-tax Act  for the assessment years 1966-67 and 1967-68 and one  against the assessment under Income-tax Act for the

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assessment  year   1967-68.  The   Tribunal  dismissed   the revenue’s appeals.      The following  question was  referred to the High Court for its opinion:           "Whether, on the facts and in the circumstances of           the case,  the conclusion of the Tribunal that the           sum  of   Rs.1,85,043  and   Rs.1,82,742  did  not           constitute  the   assets  of   the  assessee-Hindu           undivided family is correct?"      Similarly in  the reference  under the  Income-tax Act, the following question was referred:           "Whether, on the facts and in the circumstances of           the case,  the interest  of Rs,23,330 is allowable           deduction  in  the  computation  of  the  business           profits of the assessee joint family?"      The answer  to the  questions would depend upon whether the amount  standing to  the credit  of late  Rangi Lal  was inherited, after his death, by Chander Sen in his individual capacity  or  as  a  Karta  of  the  assessee  joint  family consisting of himself and his sons.      The amount in question represented the capital allotted to Rangi  Lal on  partial partition  and accumulated profits earned by  him as his share in the firm. While Rangi Lal was alive this  amount could  not be said to belong to any joint Hindu family  and qua  Chander Sen  and his sons, it was the separate property  of Rangi  Lal. On  Rangi Lal’s  death the amount passed  on to  his son,  Chander Sen, by inheritance. The High  Court was  of the opinion that under the Hindu Law when a  son inherited separate and self-acquired property of his father,  it assumed  the character of joint Hindu family property in his hands qua the members of his own family. But the High  Court found  that this principle has been modified by section 8 of the Hindu Succession Act, 1956. 260 Section 8  of the  said Act  provides, inter  alia, that the property of  a male Hindu dying intestate devolved according to the  provisions of  that Chapter in the Act and indicates further that  it will devolve first upon the heirs being the relatives specified in class I of the Schedule. Heirs in the Schedule Class  I includes  and  provides  firstly  son  and thereafter daughter,  widow and  others. It is not necessary in view of the facts of this case to deal with other clauses indicated in  section 8  or other  heirs  mentioned  in  the Schedule. In this case as the High Court noted that the son, Chander Sen was the only heir and therefore the property was to pass to him only.      The High Court in the judgment under appeal relied on a bench decision  of the  said High Court rendered previously. Inadvertently, in  the judgment  of the  High Court,  it had been mentioned  that the  judgment was  in Khudi Ram Laha v. Commissioner of  Income-tax U.P, 67 I.T.R. 364. but that was a case  which dealt  with entirely  different  problem.  The decision which  the High  Court had  in mind and on which in fact the  High Court  relied was  a decision  in the case of Commissioner of  Income-tax, U.  P. v.  Ram Rakshpal,  Ashok Kumar, 67  I.T.R. 164.  In the  said decision  the Allahabad High Court  held that in view of the provisions of the Hindu Succession Act,  1956, the income from assets inherited by a son from  his father from whom he had separated by partition could not  be assesssed as the income of the Hindu undivided family of  the son.  The High Court relied on the commentary in Mulla’s  Hindu Law, Thirteenth Edition page 248. The High Court also  referred to  certain passages  from Dr. Derret’s "Introduction to  Modern Hindu  Law" (paragraph 411, at page 252). Reliance  was also  placed on  certain observations of

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this Court  and the  Privy Council  as well  as  on  Mayne’s ’Hindu Law’.  After discussing  all these  aspects the Court came to  the conclusion  that the  position of the Hindu Law was that  partition took  away by  way  of  coparcenary  the character of  coparcener property which meant that the share of  another  coparcener  upon  the  divisions  although  the property obtained  by a  coparcener by a partition continued to be  coparcenary property  for  him  and  his  unseparated issue. In  that case  what had happened was one Ram Rakshpal and his  father, Durga Prasad, constituted a Hindu undivided family which  was assessed  as such.  Ram Rakshpal separated from his father by partition on October 11, 1948. Thereafter Ram Rakshpal started business of his own, income whereof was assessed in  the hands  of the  assessee-family. Shri  Durga Prasad also  started business  of his own after partition in the name and style of M/s Murlidhar Mathura Prasad which was carried on by him till his death. 261 Durga Prasad  died on  March 29, 1958 leaving behind him his widow, Jai  Devi, his  married daughter,  Vidya Wati and Ram Rakshpal  and  Ram  Rakshpal’s  son,  Ashok  Kumar,  as  his survivors. The  assets left  behind by Durga Prasad devolved upon three  of them  in equal shares by succession under the Hindu Succession  Act, 1956.  Vidya Wati took away her 1/3rd share, while  Jai Devi  and Shri  Ram Rakshpal continued the aforesaid business  inherited by  them in  partnership  with effect from  April, 1,  1958 under  a partnership deed dated April 23,  1958. The  said firm was granted registration for the assessment year 1958-59. The share of profit of Shri Ram Rakshpal  for   the  assessment  year  under  reference  was determined at Rs.4,210. The assessee-family contended before the Income-tax  Officer that  this profit  was the  personal income of  Ram Rakshpal  and could not be taxed in the hands of the Hindu undivided family of Ram Rakshpal, and held that Ram  Rakshpal   contributed  his   ancestral  funds  in  the partnership business  of Murli Dhar Mathura Prasad and that, hence, the  income therefrom was taxable in the hands of the assessee family.  The High Court finally held on these facts in C.I.T  v. Ram  Rakshpal (supra)  that the  assets of  the business left  by Durga  Prasad in the hands of Ram Rakshpal would be  governed by section 8 of the Hindu Succession Act, 1956.      The High  Court in the Judgment under appeal was of the opinion that  the facts of this case were identical with the facts in  the  case  of  Commissioner  of  Income-tax,  U.P. (supra) and the principles applicable would be the same. The High  Court   accordingly  answered   the  question  in  the affirmative  and  in  favour  of  the  assessee  so  far  as assessment of  wealth-tax is  concerned. The High Court also answered  necessarily   the  question   on  the   income-tax Reference affirmatively and in favour of the assessee.      The question  here, is,  whether the  income  or  asset which a  son inherits  from his  father  when  separated  by partition the same should be assessed as income of the Hindu undivided family  of son  or his individual income. There is no dispute  among the  commentators on  Hindu Law nor in the decisions of  the Court  that under  the Hindu Law as it is, the son  would inherit  the same as karta of his own family. But the question, is, what is the effect of section 8 of the Hindu Succession  Act, 1956?  The Hindu Succession Act, 1956 lays down  the general  rules of  succession in  the case of males. The  first rule  is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II  and class  I of  the Schedule  provides that  if there is  a male  heir  of  class  I  then  upon  the  heirs

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mentioned in class I of 262 the Schedule. Class I of the Schedule reads as follows:           "Son; daughter;  widow;  mother;  son  of  a  pre-           deceased son;  daugther of  a predeceased son; son           of a  pre-deceased daughter,  daughter of  a  pre-           deceased daughter;  widow of  a pre-deceased  son;           son of  a pre-deceased  son of a pre-deceased son;           daughter of  a pre-deceased  son of a pre-deceased           son; widow of a pre-deceased son of a pre-deceased           son."      The heirs mentioned in class I of the Schedule are son, daughter etc.  including the  son of  a pre-deceased son but does not include specifically the grandson, being a son of a son living.  Therefore, the short question, is, when the son as heir  of class  I of  the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family?      Now the Allahabad High Court has noted that the case of Commissioner of  Income-tax, U.P.  v.  Ram  Rakshpal,  Ashok Kumar (supra)  after referring  to the  relevant authorities and commentators had observed at page 171 of the said report that there  was no  scope for  consideration of  a wide  and general nature about the objects attempted to be achieved by a piece  of legislation when interpreting the clear words of the enactment.  The learned judges observed referring to the observations of  Mulla’s Commentary  on Hindu  Law, and  the provisions of  section 6 of the Hindu Succession Act that in the case  of assets  of the  business left  by father in the hands of  his son  will be  governed by section 8 of the Act and he  would take  in  his  individual  capacity.  In  this connection reference was also made before us to section 4 of the Hindu Succession Act. Section 4 of the said Act provides for overriding  effect of  Act. Save  as otherwise expressly provided in  the Act,  any text,  rule or  interpretation of Hindu Law  or any  custom or  usage as  part of  that law in force immediately  before the commencement of this Act shall cease to  have effect  with respect  to any matter for which provision is  made in  the Act  and any  other law  in force immediately before  the commencement  of the Act shall cease to apply  to Hindus in so far it is inconsistent with any of the provisions  contained in  the Act.  Section 6 deals with devolution of  interest in coparcenary property and it makes it clear  that when a male Hindu dies after the commencement of the  Act having at the time of his death an interest in a Mitakshara  coparcenary   property,  his   interest  in  the property shall  devolve by  survivorship upon  the surviving members of the coparcenary and not 263 in accordance  with the  Act. The  proviso indicates that if the deceased  had  left  him  surviving  a  female  relative specified in  class I  of the  Schedule or  a male  relative specified in  that class  who  claims  through  such  female relative,  the   interest  of  the  deceased  in  Mitakshara coparcenary  property   shall  devolve  by  testamentary  or intestate succession, as the case may be, under this Act and not by survivorship.      Section 19  of the  said Act  deals with  the  mode  of succession of  two or  more heirs.  If  two  or  more  heirs succeed together to the property of an intestate, they shall take the  property per  capita and  not per  stripes and  as tenants-in-common and not as joint tenants.      Section 30  stipulates that any Hindu may dispose of by will or  other testamentary  disposition any property, which is capable of being so disposed of by him in accordance with

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the provisions of the Indian Succession Act, 1925.      It is  clear that under the Hindu law, the moment a son is born,  he gets  a share  in  the  father’s  property  and becomes part  of the  comparcenary. His right accrues to him not on  the death  of the  father or  inheritance  from  the father but  with the  very  fact  of  his  birth.  Normally, therefore whenever  the father gets a property from whatever source from  the grandfather or from any other source, be it separated property  or not,  his son  should have a share in that and  it will become part of the joint family of his son and grandson  and other  members who form joint Hindu family with him.  But the  question is; is the position affected by section 8  of the  Succession Act,  1956 and if so, how? The basic argument  is that  section 8  indicates the  heirs  in respect of  certain  property  and  class  I  of  the  heirs includes the son but not the grandson. It includes, however, the son  of the  predeceased son.  It is this position which has mainly  induced the  Allahabad High  Court  in  the  two judgments, we have noticed, to take the view that the income from the  assets inherited  by son from his father from whom he has  separated by  partition can be assessed as income of the  son   individually.  Under   section  8  of  the  Hindu Succession Act,  1956 the  property of  the father  who dies intestate devolves on his son in his individual capacity and not as  karta of  his own  family. On  the other  hand,  the Gujarat High Court has taken the contrary view.      In  Commissioner   of  Income-tax,   Gujarat-I  v.  Dr. Babubhai Mansukhbhai  (Deceased), 108 I.T.R. 417 the Gujarat High Court  held that  in the case of Hindus governed by the Mitakshara law, where a son 264 inherited the  self-acquired property of his father, the son took it  as the joint family property of himself and his son and not as his separate property. The correct status for the assessment to  income-tax of  the son  in  respect  of  such property was as representing his Hindu undivided family. The Gujarat  High  Court  could  not  accept  the  view  of  the Allahabad High  Court mentioned  hereinbefore.  The  Gujarat High Court  dealt with  the relevant  provisions of  the Act including section  6 and  referred to Mulla’s Commentary and some other decisions.      Before we  consider this  question further,  it will be necessary to  refer to  the view  of the  Madras High Court. Before the  full bench  of Madras  High Court  in Additional Commissioner  of   Income-tax,  Madras   v.  P.L.   Karappan Chettiar, 114  I.T.R. 523,  this question arose. There, on a partition effected on March 22, 1954, in the Hindu undivided family consisting  of P,  his wife,  their sons, K and their daughter-in-law, P  was allotted  certain properties  as and for this share and got separated. The partition was accepted by the  revenue under  section 25A  of the Indian Income-tax Act, 1922. K along with his wife and their subsequently born children constituted  a Hindu  undivided  family  which  was being assessed  in that status. P died on September 9, 1963, leaving behind  his widow  and divided  son, K,  who was the karta of  his Hindu undivided family, as his legal heirs and under section  8 of  the Hindu  Seccession  Act,  1956,  the Madras High  Court held, that these two persons succeeded to the properties  left by  the deceased,  P, and  divided  the properties among  themselves. In  the assessment made on the Hindu undivided  family of  which K  was the  karta, for the assessment year  1966-67 to  1970-71, the Income-tax Officer included  for   assessment  the  income  received  from  the properties inherited  by K from his father, P. The inclusion was confirmed  by the  Appellate Assistant Commissioner but,

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on further appeal, the Tribunal held that the properties did not form  part of  the joint family properties and hence the income therefrom  could not  be assessed in the hands of the family. On  a reference to the High Court at the instance of the revenue,  it was  held by  the Full bench that under the Hindu law,  the property  of a  male Hindu  devolved on  his death on  his sons  and grandsons as the grandsons also have an interest in the property. However, by reason of section 8 of the  Hindu Succession  Act,  1956,  the  son’s  son  gets excluded and  the son  alone inherits  the property  to  the exclusion of  his son.  No  interest  would  accrue  to  the grandson of  P in  the property left by him on his death. As the effect  of section  8 was directly derogatory of the law established according  to Hindu law, the statutory provision must prevail  in view  of the  unequivocal intention  in the statute itself, 265 expressed in  section 4(1)  which says that to the extent to which provisions have been made in the Act, those provisions shall override  the established  provisions in  the texts of Hindu law.  Accordingly, in  that case,  K  alone  took  the properties obtained  by his  father,  P,  in  the  partition between them, and irrespective of the question as to whether it was ancestral property in the hands of K or not, he would exclude his son. Further, since the existing grandson at the time of  the death  of the grandfather had been excluded, an after-born son  of the  son will  also not  get any interest which the  son inherited  from the father. In respect of the property obtained by K on the death of his father, it is not possible  to  visualise  or  envisage  any  Hindu  undivided family.  The   High  Court   held  that  the  Tribunal  was, therefore, correct  in holding that the properties inherited by K  from his  divided father  constituted his separate and individual properties  and not  the properties  of the joint family consisting  of himself,  his wife, sons and daughters and hence  the income  therefrom was  not assessable  in the hands of  the assessee-Hindu  undivided family. This view is in consonance  with the  view of  the Allahabad  High  Court noted above.      The Madhya  Pradesh High Court had occasion to consider this aspect  in Shrivallabhdas  Modani  v.  Commissioner  of Income-Tax, M.P.-I,  138 I.T.R. 673, and the Court held that if there  was no  coparcenary subsisting between a Hindu and his sons  at the  time of  death  of  his  father,  property received by  him on  his father’s  death  could  not  be  so blended with  the property  which had  been allotted  to his sons on  a partition  effected prior  to the  death  of  the father. Section 4 of the Hindu Succession Act, 1956, clearly laid down  that "save  as expressly provided in the Act, any text, rule  or interpretation  of Hindu law or any custom or usage as  part of  that law  in force immediately before the commencement of  the Act  should cease  to have  effect with respect to  any matter  for which  provision was made in the Act". Section  8 of  the Hindu Succession Act, 1956 as noted before, laid  down the  scheme of succession to the property of a  Hindu dying  intestate. The  schedule  classified  the heirs on  whom such property should devolve. Those specified in class I took simultaneously to the exclusion of all other heirs. A  son’s son was not mentioned as an heir under class I of  the schedule,  and, therefore,  he could  not get  any right  in   the  property   of  his  grandfather  under  the provision. The  right of  a son’s  son in  his grandfather’s property during  the lifetime  of his  father which  existed under the  Hindu law  as in  force before  the Act,  was not saved expressly  by the  Act,  and  therefore,  the  earlier

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interpretation of  Hindu law giving a right by birth in such property "ceased to have effect". The Court 266 further observed  that in construing a Codification Act, the law which  was in  a force earlier should be ignored and the construction should  be confined to the language used in the new Act. The High Court felt that so construed, section 8 of the Hindu Succession Act should be taken as a self-contained provision  lying  down  the  scheme  of  devolution  of  the property of a Hindu dying intestate. Therefore, the property which devolved  on a  Hindu  on  the  death  of  his  father intestate  after   the  coming   into  force  of  the  Hindu Succession  Act,  1956,  did  not  constitute  HUF  property consisting of his own branch including his sons. It followed the full  bench decision of the Madras High Court as well as the view  of the Allahabad High Court in the two cases noted above including the judgment under appeal.      The  Andhra   Pradesh  High   Court  in   the  case  of Commissioner of  Wealth-Tax,  A.P.-II  v.  Mukundgirji,  144 I.T.R. 18,  had also  to consider the aspect. It held that a perusal of  the Hindu  Succession Act,  1956 would  disclose that Parliament  wanted to  make a  clean break from the old Hindu law  in certain  respects consistent  with modern  and egalitarian concepts. For the sake of removal of any doubts, therefore, section  4(1)(a) was inserted. The High Court was of the  opinion that  it would, therefore, not be consistent with the  spirit and  object  of  the  enactment  to  strain provisions of  the Act  to accord with the prior notions and concepts of  Hindu law.  That such a course was not possible was made clear by the inclusion of females in class I of the Schedule, and according to the Andhra Pradesh High Court, to hold that  the property  which devolved  upon a  Hindu under section 8 of the Act would be HUF property in his hands vis- a-vis his  own sons  would amount  to creating  two  classes among the  heirs mentioned  in class I, viz., the male heirs in whose  hands it  would be joint family property vis-a-vis their sons;  and female  heirs with  respect to whom no such concept could  be applied  or contemplated. The intention to depart from  the pre-existing Hindu law was again made clear by section  19 of the Hindu Succession Act which stated that two or  more heirs  succeed together  to the  property of an intestate, they  should take  the  property  as  tenants-in- common and  not as  joint tenants and according to the Hindu law as  obtained prior  to Hindu  Succession Act two or more sons succeeding  to their  father’s property  took  a  joint tenants and  not tenants-in-common.  The Act,  however,  has chosen  to  provide  expressly  that  they  should  take  as tentants-in-common. Accordingly  the property which devolved upon heirs  mentioned in  class  I  of  the  Schedule  under section 8  constituted the  absolute properties and his sons have no  right by  birth in  such properties. This decision, however, 267 is under  appeal by certificate to this Court. The aforesaid reasoning of  the High  Court appearing at pages 23 to 26 of Justice Reddy’s view in 144 I.T.R. appears to be convincing.      We have  noted the  divergent views  expressed on  this aspect by the Allahabad High Court, Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the Gujarat High Court on the other.      It is  necessary to  bear in  mind the  Preamble to the Hindu Succession  Act, 1956. The Preamble states that it was an Act  to amend  and codify  the law  relating to intestate succession among Hindus.      In view  of the  preamble to  the Act,  i.e.,  that  to

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modify where necessary and to codify the law, in our opinion it is  not possible when Schedule indicates heirs in class I and only  includes son  and does  not include  son’s son but does include  son of a predeceased son, to say that when son inherits the  property  in  the  situation  contemplated  by section 8  he takes it as karta of his own undivided family. The Gujarat  High Court’s  view noted  above,  if  accepted, would mean  that though the son of a predeceased son and not the son  of a  son who  is intended  to  be  excluded  under section 8  to inherit,  the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4  that one  should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold  today the  property which devolved on a Hindu under section 8  of the  Hindu Succession would be HUF in his hand vis-a-vis his  own son;  that would  amount to  creating two classes among the heirs mentioned in class I, the male heirs in whose  hands it  will be  joint Hindu family property and vis-a-vis son  and female heirs with respect to whom no such concept  could   be  applied  or  contemplated.  It  may  be mentioned that  heirs in class I of Schedule under section 8 of the  Act included  widow, mother, daughter of predeceased son etc.      Before we  conclude we may state that we have noted the obervations of  Mulla’s Commentary  on Hindu  law 15th  Edn. dealing with  section 6  of the Hindu Succession Act at page 924-26 as  well as  Mayne’s on Hindu Law, 12th Edition pages 918-919.      The express  words of section 8 of The Hindu Succession Act, 268 1956 cannot  be ingorned  and must  prevail. The preamble to the Act  reiterates that  the Act is, inter alia, to ’amend’ the law,  with that  background the  express language  which excludes son’s  son but  included son  of a  predeceased son cannot be ignored.      In the  aforesaid light  the  views  expressed  by  the Allahabad High  Court, the Madras High Court, Madhya Pradesh High Court,  and the Andhra Pradesh High Court, appear to us to be  correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.      In the premises the judgment and order of the Allahabad High Court  under appeal  is affirmed  and the  appeals Nos. 1668-1669 of  1974 are  dismissed  with  costs.  Accordingly Appeal No.  1670 of  1974 in Income-tax Reference which must follow as  a consequence  in view  of the  findings that the sums standing  to the credit of Rangi Lal belongs to Chander Sen in  his individual  capacity and  not  the  joint  Hindu family,  the   interest  of  Rs.  23,330  was  an  allowable deduction in  respect of  the income  of the family from the business. This  appeal also  fails  and  is  dismissed  with costs.      The Special  Leave Petition  No. 5327 of 1978 must also fail and is dismissed. There will be no order as to costs of this. A.P.J.                       Appeals and Petition dismissed. 269