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3. Under the conditions of the said Sanad, apart from fixing various rates of Nazranas on succession and for maintenance of canal or irrigation work, constructed or maintained at the expense of the Government it also prohibited the Istimrardar for the time being, from alienating his estate or any portion thereof by lease, mortgage or otherwise for the time extending beyond his own life time.

4. After the grant of the aforesaid Sanad, the Ajmer Land and Revenue Regulation, 1877 (hereafter called, "the Regulation of 1877"), was promulgaged. The Regulation, inter alia, provided so far as succession of Istimrari was concerned, under Section 23 thereof that "when a Istimrardar dies leaving sons or male issue descended from him through males only whether by birth or adoption, or when after the death of an Istimrardar his widow has power to adopt and adopts a son to him, the Istimrari estate shall devolve as nearly as may be according to the custom of the family of the deceased : Provided--First : That the descent shall in all cases be to a single heir, according to the rule of primogeniture."

10. At this juncture, it may be recalled that before the abolition of Istimrari under the Act of 1955, the Ajmer Tenancy and Land Records Act, 1950, was promulgated. Under that Act, certain primary rights were vested in the tenants from the holder of the estate and were provided protection against ejectment by the estate holders. Under Section 17 of the Ajmer Act of 1950, the tenants were classified as (i) occupancy tenants, (ii) exproprietary tenants, (iii) hereditary tenants, (iv) non-occupancy tenants, and (v) the estate holder. The land which was not occupied by tenants but was in the self-cultivation of the Istimrardar was held to be Niji Jot or Khudkasht as per Section 10 of the said Act and such land was to be demarcated Khudkasht or Niji Jot. Under Section 15 it provided that succession to the aforesaid Niji Jot land which was recognised as Niji Jot, the rights shall devolve in accordance with law which regulates the succession of proprietary rights in such lands. Thus, the succession to the property as per the Regulation of 1877 which governed the Istimrari estate, continued to apply to the Istimrari land allowed to be retained by the estate holders as their Niji Jot and the rights of tenants holding from them were protected and to that extent the right of Istimrardars qua the tenanted land became restrictive and came to be governed by the Act of 1950.

17. The claim of the assessee before the Income-tax Officer was that part of his income belonged to him as an individual and that the rest of the income particularly from compensation, immovable property and Vakil and Co. belonged to him as the karta of the Hindu undivided family. The Income-tax Officer did not accept the aforesaid contention. It was contended by the assessee that the impartible estate had devolved on the basis of the principle of primogeniture in accordance with Section 23 of the Ajmer Land and Revenue Regulation, 1877, but according to the assessee's counsel the aforesaid Regulation was repealed by the Rajasthan Revenue Laws (Extension) Act, 1957, which came into being on January 7, 1958, and that with the repeal of the said Regulation of 1877, the impartibility of the estate and the law of primogeniture stood abolished. Thereafter, the assessee was governed by his personal law of Hindus because he received the properties in question from his ancestors and, therefore, the income from the aforesaid properties and also the income from business which belonged to his Hindu undivided family should be taxed separately.

59. The court further said (page 203) :

"The effect of the provisions of Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under Section 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act."

60. The Act provided that such interest shall devolve by testament under the provisions of the Hindu Succession Act and not according to the Mitakshara or Nambudari law. So also a provision was made for giving overriding effect to the provisions of the said Act the rules prevailing under the Aliyasanthana law. This was a case in which before succession had opened, a suit for partition was filed by a member of a Kutumba governed by the Aliyasanthana law. The court said that the effect of the provisions of the Hindu Succession Act above referred to is that after the coming into force of the Hindu Succession Act an undivided interest of a Hindu would devolve as provided for under Section 7(2) while in the case of separate property it would devolve on his heirs as provided for in the Hindu Succession Act and on that basis the suit for partition was held to be maintainable.