- (1.)THIS reference made to us under section 66 (1) of the Indian Income-tax Act arises in the following circumstances: One Durga Prasad and his son, Ram Rakshpal, and his grandson, Ashok Kumar, constituted a Hindu undivided family until the 11th of October, 1948, when there was a partition in the family so that Durga Prasad separated. After that, Durga Prasad carried on his own business in the name of Messrs. Murli Dhar Mathura Prasad until his death on 29th of March, 1958, and Ram Rakshpal and his son, Ashok Kumar, carried on their own separate business under the name and style of Messrs. Ram Rakshpal and Ashok Kumar, the assessee before us. Durga Prasad also left behind a widow, Jai Devi, and a daughter, Vidyawati. Upon his death, Vidyawati took her 1/3rd share of the property left by Durga Prasad, but his widow, Jai Devi, and his son, Ram Rakshpal, entered into a partnership with 2/3rd of the assets of the business known as Murlidhar Mathura Prasad which was, as already indicated, the separate business of Durga Prasad. A partnership was entered into between Jai Devi and Ram Rakshpal and its terms were incorporated in a deed which was duly registered on 23rd April, 1958. In the assessment year 1959-60, immediately following the death of Durga Prasad, the question arose whether the income from the one-third share which had come to Ram Rakshpal from Durga Prasad should be assessed as part of the income of the Hindu undivided family of Ram Rakshpal Ashok Kumar, the assessee before us, or as the separate property of Ram Rakshpal. The Income-tax Officer assessed it as the income of the Hindu undivided family applying the well recognized principle of Hindu law that the property left by the grandfather in the hands of the father is ancestral property in which the grandson has a right by birth. On an appeal, the Appellate Assistant Commissioner maintained the decision of the Income-tax Officer, but, on a second appeal, the Appellate Tribunal allowed the appeal with regard to the income from the share inherited by Ram Rakshpal from Durga Prasad on the ground that it was the separate property of Ram Rakshpal which had devolved upon him by succession under section 8 of the Hindu Succession Act. It was held that, until Ram Rakshpal himself decided to merge it with the property of the Hindu undivided family, of which he was the karta, it would continue to be his separate property. Hence, the question which has been referred to us is framed as follows:
"Whether the 1/2 share held by Ram Rakshpal in the partnership firm of Messrs. Murli Dhar Mathura Prasad is held by him as a karta of the assessee Hindu undivided family or in his individual capacity?"

(2.)IT has been contended, on behalf of the department, that the Hindu Succession Act (hereinafter referred to as the Act) does not modify the rule thus stated in Mulla's Hindu Law (13th edition, page 248, paragraph 223): "All property inherited by a male Hindu from his father, father's father, or father's father's father, is ancestral property. The essential feature of ancestral property according to the Mitakshara law is that the sons, grandsons, and great-grandsons of the person who inherits it, acquire an interest in it by birth. Their rights attach to it at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. But, if he has sons, sons' sons, or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes." In the above-mentioned statement of the law, the basic proposition is that the grandson acquires a right in the property of his grandfather at his birth and has a right of inheritance jointly with his father at the time of succession. This is described as "unobstructed heritage". It has been observed in Mull's Hindu Law (13th edition, 1966, page 245):
"(1) The Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage. It is called unobstructed, because the accrual of the right to it is not obstructed, because the accrual of the right to it is not obstructed by the existence of the owner... Property, the right to which accrues not by birth but on the death of the last owner without leaving male issue, is called obstructed heritage. It is called obstructed, because the accrual of the right to it is obstructed by the existence of the owner."

All the cases which have been cited in Mulla's Commentary on Hindu Law in support of the proposition put forward by Mr. Gulati, on behalf of the department, relate to the law as it stood before the Hindu Succession Act, 1956. There is no doubt whatsoever about the position under the Hindu law as it then stood. Mr. Gulati also relied on the following passage from Dr. Derrett's "Introduction to Modern Hindu Law" (paragraph 411, at page 252): "Since on the death of a father his separate property (or divided share passes to his sons as ancestral property between them and the sons and grandsons of each of them (the 'male issue') - a position which persists notwithstanding the reforms of the Hindu Succession Act - it is not uncommon, where a father dies in the lifetime of the grandfather, to find a grandson who is a member of a coparcenary in two distinct capacities." He also directed our attention to another passage from this work:

"Under the Hindu Succession Act the sons, along with other intestate heirs indicated in Class I of the Schedule must take the property of their intestate father as tenants-in-common in all circumstances, but their male issue will have a birth-right as before."

(3.)NOW , the opinion expressed by Dr. Derrett is not supported by any reasons given or by an analysis of the provisions of the Hindu Succession Act. It is true that, deviating from the practice of English courts, we take notice of the opinions expressed by even modern jurists and scholars and not only of judicial pronouncements. But, these opinions cannot be given more weight than judicial pronouncements. In other words, the weight of an opinion depends upon the reasons advanced in support of it. As regards the views quoted above, there being no discussion of the particular provisions of the Indian Succession Act with which we are concerned here, and there being no reasons given by Dr. Derrett to support opinions expressed by him, we are unable to attach much weight to the view expressed. Reliance was then placed upon a passage in C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar, where B. K. Mukherji J. observed:
"It is obvious, however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on death of the grandfather or receives it, by partition, made by the grandfather himself during his lifetime. On both these occasions, the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and, consequently it becomes ancestral property in his hands."