Impartible estate loses primogeniture after Hindu Succession Act where section 5(ii) does not save the property

Section 4 of the Hindu Succession Act, 1956 overrides prior Hindu law, custom and usage, so the rule of primogeniture for an impartible estate survives only where it is specifically saved by section 5(ii). The Kathiawar covenant protected succession to the Gaddi according to law and custom, but did not preserve primogeniture for all properties of the former rulers. Accordingly, estates not covered by the statutory saving lost their impartible character, reverted to the incidents of joint Hindu family property, and the income could be assessed in the status of a Hindu undivided family rather than as the individual income of the holder.

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Issues: Whether the properties inherited by the assessee as part of an impartible estate continued to remain governed by the rule of primogeniture after the Hindu Succession Act, 1956, or ceased to be impartible and acquired the character of joint Hindu family property, with the result that the income therefrom was assessable in the status of a HUF.

Analysis: Section 4 of the Hindu Succession Act gives the Act overriding effect and displaces any prior Hindu law, custom, or usage to the extent the Act makes provision on the matter. Section 5(ii) saves only those estates which descend to a single heir by the terms of a covenant or agreement entered into by a Ruler of an Indian State with the Government of India or by a pre-commencement enactment. The covenant relating to Kathiawar guaranteed succession to the Gaddi according to law and custom, but did not preserve the rule of primogeniture for all the properties of the erstwhile rulers. The Act therefore abrogated the customary rule of primogeniture for estates not saved by section 5(ii). Once the impartible character was lost, the properties regained the incidents of joint family property, and the holder could seek assessment in that status.

Conclusion: The estate had ceased to be impartible and the income from the properties was not the individual income of the assessee but that of his Hindu undivided family.

Ratio Decidendi: After the commencement of the Hindu Succession Act, 1956, an impartible estate survives only if it is specifically saved by section 5(ii); otherwise the overriding effect of section 4 abrogates the custom of primogeniture and the property reverts to the incidents of joint Hindu family property.

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