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"14. Now an impartible estate is not held in coparcenary, (Rani Sartaj Kuari v. Rani Deoraj Kuari (1888) L.R. 15 I.A. 51), though it may be joint family property. It may devolve as joint family property or as separate property of the last male owner. In the former case it goes by survivorship to that individual, among those' male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g. lineal male primogeniture. In the latter case jointness and survivorship are not as such in point; the estate devolves by inheritance from the last male owner in the order, prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom. The zemindari property claimed in Amarendra's case was adjudged to belong to the adopted son on this last mentioned principle-that is, as heir of the last male owner."

Analysis and Reasoning

17. The most important question which needs to be decided in these appeals- which have remained pending on the file of this court, cumulatively for over 37 years, is whether Sawai Man Singh filed his income tax returns in his capacity as sole and exclusive owner of impartible properties, or he did so, for and on behalf of his joint family; if the latter is correct, the family can claim the status of HUF; if the former is correct, the properties were impartible and would have to devolve according to primogeniture- at least for income tax purposes and be treated as individual. The answers to these questions are necessary not only to assess the returns filed at the time of the late Sawai Man Singh's death, but also treatment of the assets and income derived by those properties and other sources of income.

- not that property which is not joint property devolves by virtue of custom as though it had been joint - but that the general law regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom; hence the estate retains its character of joint family property and devolves the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line.

21. In Collector of Gorakhpur v. Raw Sundar Mai's case, supra, it was observed that though the decision of the Board in Sartaj Kuari's case and the First Pittapur's case appeared to be destructive of the doctrine that an impartible zamindari could be in any sense joint family property, this view apparently implied in these cases was definitely negatived by Lord Dunedin when delivering the judgment of the Board in Baijnath Prasad Singh's case. In Commissioner of Income Tax, Punjab v. Krishna Kishore's case dealing with an impartible estate governed by the Madras Impartible Estates Act, 1904, it was held that the right of junior members of the family for maintenance was governed by custom and was not based on any joint right or interest in the property as co-owners. In Anant Bhikappa Patil's case supra, it was observed that an impartible estate is not held in coparcenary though it may be joint family property. It may develop as joint family property or as separate property of the last male holder. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom e.g. lineal male primogeniture. In the latter case, jointness and survivorship are not as such in point the estate devolves by inheritance by the last male holder in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom.