SEN, J. - (1.) THIS is an application under s. 29(1) of the WT Act, 1957 by the CWT, Rajasthan II, Jaipur for a certificate that the case is a fit one for appeal to the Supreme Court.
(2.) IN Sir Chunilal V. Mehta vs. Century Spn. & Mfg. Co. Ltd. AIR 1962 SC 1314 while laying down the principles for the grant of a certificate of fitness under Art. 133(1)(c) of the Constitution, their Lordships observed that the proper test for determining whether a question of law raised in the case in substantial would be whether it is of general importance or whether it directly or substantially affects the rights of the parties and if so, whether it is either an open question in the sence that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. Their Lordships further observed that, if the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying these principles or that the plea raised is palpably absurd, the question would not be a substantial question of law. In the present case, the substantial question of law involved was whether the impartible estate inherited by the holder of a Jagir should be treated as a joint family property or as his personal property, and that controversy that it is characteristic of a joint family property stands decided by various judgments of the Privy Council and the Supreme Court referred to in the judgment. The only question that was to be determined by this Court was the application of this principle, so decided, to the facts and circumstances of the present case. We, therefore, think that the judgment which is sought to be taken to the Supreme Court did nothing more than applying the general principles of a settled law to the facts and circumstances of the present case and, therefore, in our opinion, no substantial question of law remains to be decided by the Supreme Court in this case. The question of law that came up for the determination in the said reference was the determination in the said reference was the determination to adjudicate upon the real nature of the jagir properties held by the erstwhile Jagirdar as the whether such property could be taxed treating it to be a personal property of the Jagirdar or whether it should be taken as the joint family property of the HUF if it had come to the hands of the Jagirdar through succession from his forefathers. This Court has followed its earlier decision in Thakur Gopal Singh vs. CWT 1973 RLW 231. The principles are well settled by two Privy Council decisions in Shiba Prasad Singh vs. Rani Prayaga Kumari Devi AIR 1932 PC 216 and CIT vs. Dewan Bahadur Dewan Krishna Kishore AIR 1941 PC 120 and two Supreme Court decisions in Tushpavath Vijayaram vs. P. Visweswar AIR 1964 SC 118 and State of U.P. vs. Rukmini Raman Brahma AIR 1971 SC 1687 that an estate though impartible has, in the eye of law to be regarded as joint family property. As observed in Thakur Gopal Singh vs. CWT (supra) case the fact that the assessee has been assessed for the income of the estate as an individual is of no importance. In view of the provisions contained in s. 9(4) of the IT Act, 1922, the holder of an impartible estate has to be deemed to be an individual owner of all the properties comprised in the estate. There was no corresponding provision in the WT Act, 1957 in the relevant assessment years i.e. asst. yrs. 1957-58 to 1964-65. Corresponding to s. 9(4) of the IT Act, 1922, s. 4(6) was introduced in the WT Act, 1957 w.e.f. 1st April, 1965. Thus the position in the WT Act during the relevant assessment years was similar to that existed in regard to the IT Law prior to the introduction of s. 9(4). The matter is squarely governed by the decision of the Privy Council in CIT vs. Dewan Bahadur Dewan Krishna Kishore (supra). The contention that the peculiarities of the tenure of a Jagirdar in the erstwhile State of Jodhpur by reason of ss. 169, 183, 191, 192 and 193 of Marwar Land Revenue Act, 1949 distinguishes the present case from the decisions of the Privy Council and the Supreme Court relating to impartible estates or that in Thakur Gopal Singh vs. CWT (supra) is of no avail. The mere fact that s. 183 makes the grant of the Schedule Jagir only for the life time of the holder and makes the succession dependent upon recognition being accorded by the Rule is of little consequence. That is but the normal feature of an impartible estate which devolves by the rule of primogeniture. This aspect has been considered by this Court in para 12 of the judgment. The Court referred to s. 107 of the Mewar Kanoon Mal and observed that there was no distinction in principle between the decision in Thakur Gopal Singh vs. CWT (supra) and the one before it. The succession to the Mewar Jagirs was also to be recognised by the His Highness Udaipur before the grant could continue. The further contention that there is a difference of opinion between different High Courts cannot also be accepted. While it is true that in Thakur Gopal Singh vs. CWT (supra) the Department relied upon the decision of the Andhra Pradesh High Court in Rani Bhagya Laxmamma vs. CWT (supra), as laying down a contrary view and the learned Judges there observed tat, "we are unable to subscribe to the view expressed by their Lordship in the Andhra Pradesh High Court", the decision relied upon is, inn our view' clearly distinguishable on facts. There, the grant of Jagir to Rani Bhagya Laxmamma by HEH the Nizam was a personal grant to her. It appears that Rani Laxmamma had taken a boy in adoption. But by reason of the adoption of a son, she could not convert her personal property into joint family property. In conclusion, we may observe that that Court had, in DB Civil Misc. (Leave to Appeal) Petn. No. 28 of 1973), decided on 13th Feb., 1974, declined to certify Thakur Gopal Singh vs. CWT (supra), as a fit one for appeal under s. 29(1) of the WT Act, 1957, to the Supreme Court, The CWT does not appear to have applied for special leave to the Supreme Court under Art. 136 of the Constitution of India. That being so, it must be taken that the Department has accepted the decision in Thakur Gopal Singh vs. CWT (supra) as laying down the correct law. The application for grant of a certificate of fitness under s. 29(1) of the WT Act, 1957, is accordingly rejected. ;