JUDGMENT
Rajendra Babu, J.
1. After the death of Hajee Mohd. Hussain Sait in 1955, his two sons, namely, Hajee Abdul Sait (assessee) and Hajee Abdul Sattar Sait, claimed in the assessment proceeding under the Estate Duty Act that they belong to the Cutchi Memons sect of Muslims and in the matter of inheritance and succession including rules as to joint family property, the right of the same by birth and devolution thereto by survivor in the civil station area of Bangalore City. Ultimately, the Mysore High Court in the case of Hajee Abdul Sattar Sait v. CED [1968] 69 ITR 45, and on appeal from the decision, the Supreme Court in the case of CED v. Hajee Abdul Sattar Sait [1972] 86 ITR 53, upheld their contention that only 1/3rd of the undivided share of Hajee Mohd. Hussain passed on to them on his death for the purpose of assessment under the Estate Duty Act. The Mysore Cutchi Memons Act 1 of 1943 (“the Act” for short), become applicable in the year 1948 after retrocession of the civil area of Bangalore when this law was extended to that area.
2. So far as the assessee is concerned, the law applicable to him is as held in Hajee Abdul Sattar Sait’s case [1968] 69 ITR 45 (Mys) and in CED v. Hajee Abdul Sattar sait case . Indeed, the assessee and his brother being accountable persons under the Estate Duty Act had contended before this court and the Supreme Court that they were governed by rules applicable to the coparcenary property under the Mitakshara school of Hindu law. While examining the scope and effect of the law as contemplated in Cutchi Memons Act. This court in the case of Hajee Abdul Sattar Sait’s Case [1968] 69 ITR 45, observed as follows (at page 52):
“By virtue of section 3, the position would be that if the assessee before us are right in their case that they are governed by the Hindu law relating to joint family property or coparcenary property involving the doctrine of the right by birth and devolution by survivorship, then both the accountable persons having been born long coming into force of the Act must be taken to have acquired a right by birth in their father, Mohammad Hussain’s property, which is not taken ways but preserved by section 3 of the Act, and that should they fail in their case, any reference to any section of the Act would be unnecessary from the point of view of either of the contending parties before us.”
3. This court held that the assessees were governed by the rules Hindu law in the matter of the right of a son by birth and devolution by survivorship and had acquired such rights long before 1948 which were not taken away by virtue of section 3 of the Act. This aspect of the matter was, in fact, approved by the Supreme Court in the case of CED v. Hajee Abdul Sattar Sait [1972] 86 ITR 53, wherein the Supreme Court observed as follows (at page 69):
“If the parties as aforesaid were governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth. The High Court would be right in its view that the accountable persons having been born long before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by section 3 of the Act. There was. Therefore, no question of that interest passing to them on the death of their father as envisaged by section 5 of the Estate Duty act, in this view, the judgment of the High Court under challenge has to be upheld…”
4. The Income-tax Officer assessed the assessee in the assessed in the status of an individual as it had been done in the case of his brother, Hajee Abdul Sattar Sait. The assessee unsuccessfully appealed to the Appellate Assistant Commissioner and thereafter to the Income-tax Appellate Tribunal. Bangalore Bench, Bangalore (“the Tribunal”). The Appellate Assistant Commissioner held that the assessee was born before 1948 when the Act became applicable. Although the assessee had acquired by birth the right in property held by the father having been born prior to 1948, he having married only in 1949 and a son having been born to him in 1950, the saving clause in section 3 of the Act was not applicable and, therefore, the assessee was rightly treated as an individual by the Income-tax Officer. The Tribunal agreed with the Appellate Assistant Commissioner in this regard. It held that the expression “inheritance and succession” in that Act was not merely applicable to the separate property of the assessee but also to the ancestral property devolving upon him when he was born in the family and on the death of his father in 1955. Aggrieved by the other of the Tribunal, the assessee sought a reference and the Tribunal has referred the following questions of law for the opinion of this court:
“1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in rejecting the contention that the applicant is a Cutchi Memon governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth ?
2. Whether Hindu law recognises a clear difference between succession and inheritance on the one hand and the rules as the joint family property, its distribution according to the rule of survivorship and right of a son it by birth on the other hand ?
3. Whether section 2 of the Mysore Act 1 of 1943 affects the rule is to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth ?
4. Whether, in any event, section 3 of the Mysore Acd 1 of 1943 saves the right of the appellant’s sons acquired by birth and the corresponding liability incurred by the application in respect of the property ?
5. Whether, on the facts and in the circumstances of the case, the property and the assessable income therefrom are the property and income belonging to the joint family or whether they were are the separate property and income of the applicant ?”
5. In view of the declaration of law made by the Supreme Court as set forth earlier, it was contended by learned counsel for the Revenue that it is only by reason of section 3 of the Act that the right of late Hajee Mohd. Hussain sait in the family property was held to be 1/3rd and the assessee allot had 1/3rd right in the year 1948 when the joint family, as understood in Hindu law, became extinct as provided in section 2 of the Act; that the matter does not admit of any dispute at all and. Therefore, all the questions have to be answered in favour of the Department of the Supreme Court was not a declaration of a law on an examination of the facts of the case or a contemplated under article 141 of the Constitution but was only 2 statement as to the factual position of law. It was also submitted that the Act was applicable only to inheritance and succession without affecting the right of a coparcener by birth and devolution of property by survivorship and other incidental right thereto as is applicable to Hindus which was preserved by them. Their contention is that the expression “inheritance and succession” used in the Act is applicable only to the separate property of the individual passing to the assessee and not to the joint family property which belongs to him by rule of survivorship or by reason of his birth in the family. So. The crucial question that arises for consideration in this case is as to the interpretation of section 2 and 3 of the Act, the Act itself is every short Act and the entire Act may be reproduced hereunder:
“Whereas it is expedient that all Cutchi Memons be governed in matters of succession and inheritance by the Muhammadan law;
It is hereby enacted as follows:
1. (1) This Act may be called the Cutchi Memons Act, 1943.
(2) It shall come into force on the First day of July. 1943.
2. Subject to the provisions of section 3, all Cutchi Memons shall, in matters of succession and inheritance, he governed by the Muhammadan law.
3. Nothing in this Act shall affect any right or liability acquired or incurred before its commencement or any legal proceedings or remedy in respect of any such right or liability; and any such proceedings or remedy may be continued or enforced as if this Act had not been passed.”
6. The section that calls for interpretation in section 2. Section 2 is to the effect that in matters of “succession and inheritance”, Cutchi Memons are governed by the Muhammadan law after the coming into force of the Act except to the extent saved under section 3. The argument developed on behalf of the assessee is that there was dichotomy of view between various High Courts, the Bombay line of decisions held that application of Hindu law is now restricted to cases of succession and inheritance as it would apply in the case of intestate separates Hindus possessed of self-acquired property. The Madras line of decisions held that Cutchi Memons had regulated inheritance and succession according to Hindu law including the principle of devolution of property by survivorship and other incidents of coparcenary joint family property.
7. Now, what falls for consideration is whether the meaning of the expression “succession and inheritance” used in section 2 of the Act includes the concepts of Hindu law of right by birth and survivorship with all incidents of coparcenary property. The Act is only a sequel to the Central Act X of 1938 and hence the Objects and Reasons set forth in the Central Act are relevant for the purpose of understanding the object of the Act. The Statement of Objects and Reasons of the said Act are as under:
“Sufficient time has passed since the passing of the Cutchi Memons Act of 1920 and large numbers of the Cutchi Memon community have taken advantage of the same. However. There is minority which still purists in being governed by the customary laws and that tends to complicate matters, in order to bring about uniformity, it is highly desirable that the entire Cutchi Memon community be governed by the Muhammadan law. The Cutchi Memons are good Muhammadans and there is general desire in the community to be governed by the Muhammadan law. This Bill, if enacted, will go a great way in bringing about the desired uniformity allover British India so far as the Cutchi Memons are concerned in matters of succession and inheritance and this will also facilitate administration of civil justice by the law courts in British India, as they will have to adjudicate through an established code while, under the present circumstances, a wide field of custom and usage has tobe traversed for proper determination of the case. Therefore, it is desirable that the Bill be enacted.”
8. The preamble to the Act reads as follows:
“An act to provide that all Cutchi Memons shall be governed in matters of succession and inheritance by the Muhammadan law.”
9. The main object of the law is that the Muhammadan Law must be made applicable to Cutchi Memons by displacing any customary law. As referred to earlier, there is a sharp cleavage of views between the High Court of Madras and Bombay which were brought into forums before the Supreme Court in the case of CED v. Hajee Abdul Sattar Sait [1972] 86 ITR 53. In such circumstances, the intention of the legislature is relevant to gather the meaning of both expressions used by it. When the legislative had used both expressions succession and inheritance, no redundancy can be attributed to such expression although it has been contended on behalf of the assessee by the rule of nastier a sources that the expressions”inheritance” and “succession”. If the “inheritance” and “succession” mean the same, then there was no need for the Legislature to have used the two expressions.
10. Now, let us examine whether the expression “inheritance and succession” could also included in it, the rules of Hindu Law of right by birth and survivorship and could be brought within its scope. The expressions “inheritance” and “succession” used in the enactment are not to be understood as restricted to passing of interest in property from the dead to the living but as covering also right and obligations that exist which are governed by Hindu law.
11. The Bombay line of decision held that the applications of Hindu law is restricted to cases of “succession and inheritance” as it would apply in cases of intestate succession to the self-acquired or separate property of a Hindu passing to his heirs. The Madras line of decision held that Cutchi Memons had regulated their “inheritance and succession” according to the Hindu law including its principle of development of property by survivorship and other incidents of coparcenary or joint family property. When the meaning of “inheritance and succession” was doubtful and the law applicable t Cutchi Memons in regard to “inheritance and succession” was also doubtful, the meaning of the expression used in the Act has got to be examined with reference to the intention of the Legislature in enacting the said provisions.
12. The expressions “inheritance” and “succession” have been the subject-matter of consideration by court in India. There are at least two decisions. One of very high authority of the Federal Court in In re. Hindu Women’s Right to Property Act, 1937 AIR 1941 FC 72 and another of the Madras High Court in Santhamma v. Neelamma, AIR 1956 Mad 642. The federal Court held in the said decision while dealing with the exact connotation of the expression “inheritance” and “successin” thus (see AIR 1956 Mad 642, 650):
“…. Many enactments of Parliament and of the Indian Legislature have used the words ‘inheritance’ and ‘succession’ in juxtaposition, justifying the inference that succession is either another category from or a wider category than inheritance……….. If in these enactments succession should be held not to include the principal of survivorship, it would be difficult to say what else that word is meant to refer to and in any other view the continued administration of that part of the Hindu law by the British Indian Courts could not have been provided for, because there are not other appropriate words in those provisions.”
13. Following this judgment the Madras High Court held that the expressions “inheritance” and “succession” as used into constitutional enactments are not to be understood as confined to cases of a “devolution” in the strict sense of the passing of interest in the property from the dead to the living but as comprehending also adjustment of the right and obligations that subsist between the parties governed by Hindu law, thus, the expressions “devolution” and “succession” cover the partition in a Hindu family. This judgment was rendered by Rajamannar C.J., and Rajagopala Ayyangar J. In the course of their judgment, the learned judges explained the position in law thus (at page 650):
‘(24)….. In the Hindu law texts, Daya Vibhaga is a part of the law relating to Daya. Which was has been translated as ‘inheritance’. It is, therefore, not unreasonable to hold that rights flowing from the corporate ownership of property, which is involved in the concept of joint family and coparcenary property has been connoted by the expression “inheritance” and “succession” which occur in the earlier Government of India Acts, which we have referred to and in the Lists in Schedule 7, Government of India Act, 1935, the expression “devolution” used in Item 21 of List II is really compound of the entities “will, intestacy and succession” in Entry 7 of List 3.’
14. Mitakshara is a commentary written by Shri Vignaneswara on the Smrithi of Yagnavalkya, Vignaneswara took up the version of Yagnavalkya and appended his gloss to it. In chapter I, Schedule I, pages 1 to 3, Colebroke. Who is held to be an authority on this subject, has translated the relevant portion in the following words:
“(i) The distribution of Daya is now being propounded by the Yogamoorthi (Yagnavalkya);
(ii) Here the terms ‘Daya’ signifies that the wealth becomes the property of another merely be reasons of his relation to the one.”
15. It is of two concerns-Unobstructable (Aprathibandha Daya) and Obstructable (Saprathibandha Daya). Here, the wealth of the father as also of the paternal grandfather becomes the property of his sons or grandsons, in right of their being his sons and grandsons, and that is an inheritance not liable to obstruction. But property devolves on paternal uncle, brothers and the rest, but only in the absence of male issue to the owner and thus the existence of son and the existence of the owner are impediments to the devolution and as it is only in the absence of these that the property devolves upon those in their capacity as uncles or brothers respectively. This is a inheritance subject to obstruction. The same should be understood in respect of their sons and the rest. The doctrine is that property which descends from one paternal granduncle is an unobstructed heritability in which one’s sons and grandsons acquire by birth an interest. Thus, the “Hindu lawyers” always treated partition and inheritance as parts of the same subject and together they form, from ancient time, one of the 18 title of law and, as Narada says a division of paternal estate is instituted by sons that becomes a topic of litigation called partition of heritage. (Quoted from Narada Smrithi, Chapter 13, Verse-1).
16. Thus, neither Vignaneswara, Narada or Vyavahara Mayukha School made any distinction between survivorship, succession and inheritance when they elaborated on the rights and the heritable wealth. Therefore, even from the ancient texts right up to the present day, “Daya” is defined as wealth which becomes the property of another solely by reason of his relation to the owner, therefore, the only conclusion that we can draw in a situation of this word is while succession in are restricted sense is applicable to the separate property of a coparcener, survivorship is a rule which is applicable to the ancestral and joint family; but the concept of inheritance and succession includes both succession and survivorship.
17. However. Sri Vishwanatha Iyer, learned counsel appearing for the assessee, relied upon a decision of the Bombay High Court reported in the case of Y. K. Nalavade v. Ananda G. Chavan, , and submitted that the same has been approved by the supreme Court in the case of Vasant v. Dattu, , and D. S. Agalawe v. P. M. Agalawe, , and sought to contend that distinction has been made between “survivorship” under the Mitakshara Hindu law and “inheritance” under the same system. While devolution of the property on the member of the joint family entering therein by birth or adoption under the rule of survivorship became effective only on partition, the succession of the same under the rule of “inheritance” by the nearest available heir becomes effective immediately on the death of the last holder when succession open. Learned counsel falls relied upon certain passages in the Principles of the Hindu Law of Inheritance (T.L.R. 1880) and contended that the right in the paternal ancestral estate is acquired by birth, and that there is, in fact, no devolution of property from one owner to another and as each son comes into being, he immediately acquires a right which would on partition, reduce the share of the other sons, and which should he not survive a partition and have issues, his son or grandson would take by substitution and which, if he dies before the period, would simply lapse. There being no devolution of property, the laws of descent are inapplicable, undoubtedly, these two decisions bring about a difference between the concept of the rule of survivorship and succession or inheritance. But what is required to be considered is not the effect of the doctrine of survivorship, but only the meaning to be attributed to the provisions of the Act and very while meaning will have to be given when the Legislature used the expression and no restricted meaning could be given to it as explained by us earlier. The Bombay High court, while deciding the case reported in Y. K. Nalavade v. Ananda G. Chavan, , was not concerned with the concept of succession in a very wide and broad sense but only in a limited sense and. Therefore, understood the meaning in a restricted sense. If the principles of survivorship alone were to be applicable by a party and not the broad concept of succession, then learned counsel is right. By that is not the position as explained by us earlier while referring to the decisions of the Federal Court in In re Hindu Women’s Right to Property Act, 1937, AIR 1941 FC 72, and of the Madras High Court in Santhamma v. Neelamma, AIR 1956 Mad 642. Thus, we hold that neither the decision of the Bombay High Court in Nalavade’s case. , or the concept explained in the Togore Law Lectures 1880 are applicable to the facts of the case.
18. Etymologically, the word “succession” is capable of comprehending every kind of passing of property. As observed by Spend C.J., in the special reference in In re Reference under section 213, Govt. of India Act, 1935, AIR 1944 FC 73.
“But if there is any legislative practice at all in India, it is to be found in the use of the word “succession” in the narrower sense. The Succession ? Act broadly divides the subject into test monetary and in taste sensation and the ordinary meaning of succession transmission by law or by the will of man to one or more persons of the property and the transmissible right and obligations of a dead person…….”
19. Thus, in the strict sense, succession will only mean the passing of the property of a deceased person to an heir, what happens in the case of survivorship is that a person inherits the right in the family property or the ancestral property by reason of his birth. Even the etymological expression “inheritance” or “heritage” would mean to “derive” or “acquire” a right or a quality or disease by birth. Therefore, when the Legislature used two expressions “succession” and “inheritance” in the Act. The only meaning that we can give it that inheritance and succession would include the right by birth and the rule of survivorship as applicable to Hindu coparcenary, even the Legislature has not maintained the strict division between succession and survivorship. For example. While the Hindu Succession Act deals only with succession, in section 6 of the Act, it provides for devolution of interest in coparcenary property and modifies the rule of survivorship in the case of a Hindu dying leaving behind a relation specified in clause I of the Schedule to the Act. So also the said Act give a testamentary right in relation to the coparcenary interest in the property. Broadly understood, therefore, the expression “inheritance” used in the Act would included the rules of coparcenary right by birth and survivorship. Any other answer would lead to highly anomalous consequences because, in the Bombay school where the rule of right by birth and survivorship were never expected to a part of the rule of inheritance and succession of Hindu law retained by Cutchi Memons, when that mode of inheritance and succession was abolished. The resultant position is that the Hindu law is not at all applicable so far as Cutchi Memons’ right to property, inheritance and succession were concerned. In so far as the Madras school is concerned, the resultant position would be that Cutchi Memons would still retain, in spite of the ? Act, the rule of survivorship and the right by birth in the personal property as it is applicable to Hindu law, while the object of the Act is to displace the applicability of the Hindu law in matters of inheritance and succession and to replace it by Muhammadan law. However, learned counsel for the assessee contended that in the judgment of the Supreme Court reported in Hajee Abdul Sattar Sait’s case [1972] 86 ITR 53, the Supreme Court used the three expressions. “property”, “succession” and “inheritance” at several placed, whenever they referred to the applicability of Hindu law. Therefore, the expression “succession and inheritance” could not include a right in a coparcenary property which was saved in the Madras area. While discarding the view of the Bombay school. This argument cannot be accepted, for, in the first place, the Supreme Court was not dealing with the ambit and scope of the expression “inheritance and succession” but was only considering the effect of the decisions of the Bombay and Madras High Courts. The Bombay High Court used three expressions, i.e., right to “property”, “succession” and “inheritance” and the Supreme Court also repeated the same, but a judgment cannot be interpreted as if it were a statute. Further, the ratio of the decision is available in the last paragraph of the judgment wherein their Lordships considered the effect of section 2 of the Act which had used the expression “inheritance and succession”. They upheld the decision of the High Court only on the basis that the right of the parties were saved by section 3 of the Act and not other principle, although the High Court had referred to several other aspect of the matter. Strong reliance was placed in this context on the views expressed by the learned author, N R Raghavachariar in his Hindu Law, Eighth Edition 1987, at page 28 which is extracted as under:
“The advertence by the Supreme Court in CED v. Abdul Sattar, [1972] 86 ITR 53; AIR 1972 SC 2229, to the different views held by the Bombay and the Madras High Courts on the applicability to the Cutchi Memons by way of custom of Hindu Joint family rules and the distinction firmly made by the Madras High Court between the joint family rule of survivorship one hand and succession and inheritance on the other leaving the position undisturbed, coupled with the use of the words “succession and inheritance” by the Central Legislature in the Cutchi Memons Act of 1938 at a time when it must have been aware of the distinction drawn by the Madras High Court between those words and survivorship lends colour to an inference that in this part of the country (South India) the Hindu joint family rules continue to apply to Cutchi Memons by way of custom.”
20. This view is contrary to what we have explained earlier on the interpretation to be given to the expression “inheritance and succession” used in the Act. Therefore, we have no option but to reject this contention.
21. We can approach this problem from another angle, the Supreme Court rested its decision in CED v. Hajee Abdul Sattar Sait [1972] 86 ITR 53 solely on the ground that the assessee and his brother were born before 1946 and, therefore, their right was saved under section 3 of the Act and as a result of which there was no question of that interest passing to them on the death of their father in view of section 3 of the Act. And in that view, the judgment of the High Court was sustained and on no other basis. Therefore, the concept of “inheritance and succession” used in the Act is, as understood by the Supreme Court and as interpreted by it, must include the rules as to joint family properties, its distribution according to the rule of survivorship and the right of a son in it by birth. Thus, no other BDDB argument is admissible at all as contended by learned counsel for the Revenue. Hence, on this basis also, we have to answer that the Act has displaced the Hindu law applicable to Cutchi Memons even in matters referred to above, therefore, we have to hold that the rules as to joint family property and its distribution according to the rule of survivorship and of right by birth have been displaced by Mohammedan law by reason of section 2 of the Act.
22. The next question that arises for consideration is whether the right of the assessee was saved by reason of section 3 of the Act and if it is saved. Whether it will also save the right of the assessee by birth and corresponding liability incurred by him in the property. While narrating the facts, we have adverted to the circumstances that the assessee was born prior to 1946 and was married in the year 1949. On the date when the Act came into force. The assessee was not married. Though the Act does not expressly say that there will be a partition on the date when the Act came into force in respect of the properties held by Cutchi Memons in the joint family, it must be deemed that for the purpose of determining the rights saved under section 3 and to understand section 2 to apply the Mohammedan law of inheritance to succession thereafter, the notional partition must be deemed to have taken place on the date the Act came into force. It is only that right on that day as had crystallised in the hands of the assessee that is saved under section 3 and no other. Therefore, the assessee became entitled to 1/3rd share of the property on the day when the Act came into force which was held by him, since he was unmarried, only as individual and not as Hindu undivided family in view of the facts that there cannot be a single member family. It has been held by the Supreme Court in the case of Krishna Prasad (C.) v. CIT [1974] 97 ITR 493 that to constitute a family, there must be a plurality of members and not a single member, though a sole surviving coparcener can form a family with other members and they need not be coparceners. Still, a single member cannot constitute a family if, on the date on which the Act came into force, he remained unmarried. In so far as the assessee is concerned, his right was saved to only 1/3rd of the property that passed to him on that day and thereafter he held the property as a Muhammadan and joint family came to be extinguished on that day except to the extent his rights had been saved earlier as stated above. Therefore, the resultant position is that the assessee was an individual on the date when the Act came into force and not a member of the Hindu undivided family and therefore, the law applicable to him is as provided in the Act, that is, the Muhammadan law. The Muhammadan law does not take within its scope the concept of right by birth and the rule of survivorship.
23. In the light of the discussion made above, our answer to the various question referred to us as are follows:
(i) The applicant is a Cutchi Memon but he is not governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth:
(ii) The concept of succession and inheritance as used in the Mysore Cutchi Memons Act takes within its scope rules as to joint family property, its distribution according to the rule of survivorship and right of a son in it by birth. Therefore, the difference if any, in the concept of succession and inheritance is immaterial;
(iii) Section 2 of the Mysore Act 1 of 1943, affects the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth:
(iv) The assessee’s sons had not acquired any right by birth and the corresponding liability of the assessee in respect of the property in question and section 3 of the Mysore Cutchi Memons Act 1 of 1943 does not save their rights as they were not born before the Act came into force inasmuch as the Hindu undivided family in so far as the assessee was concerned stood extinguished on the commencement of the Cutchi Memons Act, and
(v) The property and the assessable income are not the property and income of the joint family but constitute separate property and income of the assessee.
24. Therefore, question NO, 1 is answered in the affirmative and against the assessee, while the other questions are answered as stated above.