1. The question of law referred by the Income-tax Apellate Tribunal, Bangalore Bench, for the opinion of this court in the above case reads as follows :
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee, as a member of the Hindu undivided family, was entitled to throw her separate property into the common hotchpots of the Hindu undivided family?'
2. The facts of the case are briefly these : The assessee is governed by Mithakshara law. She jointly City, on 13th February, 1963. A house was constructed on the said site and both the assessee and her husband contributed towards the cost of construction. In the year of acount, the house was let out and a sum of Rs. 7,365 was raised as rent. The assessee and her husband, in an affidavit dated February 27, 1964, made a declaration that the property was treated had held by them with effect form 1st April, 1963, as the property belonging to the HIndu undivided family of which they were members. the assessee is a medical practitioner in bangalore. When she filed her return before the Income-tax Officer for the assessment year 1964-65, hse did not include in her return the income form the above property on the ground that it belonged to the Hindu undivided family. The Income-tax Officer while holding that the property became the property of the Hindu undivided family with effect from February 27,1964, was of the opinion that up to February 27, 1964, one-half of the income-tax Ofcer, therefore, included the assessee's half share of income form the said property up to February 27, 1964, while computing her income for purposes of income-tax.
3. The assessee preferred an appeal against the order of assessment made by the Income-tax Officer before the Appellate Assistant Commissioner of Income-tax, 'B ' Range, banglore, who held that there was no effective abandonment or transfer of the assessee's interest in the property during the year 1963-64 in favour of the HIndu undivided family and that she remained the legal owner of her share of the property thought out the year he further held that her share of income of the whole year was liable to be assessed in her hands and the assessment was also enhanced by Rs, 307 as a consequence of the above decision.
4. Aggrived by the order of the Apellate Assistant Commissioner, the assessee preferred an appeal before the Income-tax Appellate Tribunal, Banglore Bench. The Income-tax Tribunal allowed the appeal holding that from February 27,1964, the property had been impressed with the character of Hindu undivided family property and that the income realized by or occured to the cases up to February 27, 1864, alone was liable to be assessed in her hands. thereafter, the Commissioner of Income-tax, Mysore, sought a reference of the question of law set out above for the decision of this court.
5. In order to answer the question, we find it necessary to set out brieflys the law governed by Mithakshara law. A joint and undivided family has been the normal condition of the Hindu society. A male or a female can become a member of a Hindu joint family by birth. An adopted son of a male member, and a girl marrying a male member of a joint family are also considered as members of the joint family. Thus a person becomes a member of a joint family by birth, adoption or marriage. Nobody can be admitted into the joint family by contract. Similarly, a person ceases to be member of a joint family by death or on partition. A boy who is given away in adoption or girl who is given away in marriage also cases to be a member of the joint family in which he or she is born. HIndu law dose not place any limitation on the number of persons who can constitute a joint family. It dose not also exclude a person from being considered as a member of joint family merely on the ground of remoteness of his descent form the common ancestor who is alive. The whole body of persons - both males and females-in a joint family constitute a corporation in a loose sense. Every one of them is entitled to reside and to be maintained in the family house. The presence of a joint estate is not a condition for the existence of a joint family. Theses briefly are the characteristics of a joint family as it is understood in the larger sense.
6. The expression 'joint family' is used in narrower sense to denote a much smaller body called 'coparcenaries' Hence, wherever, the expression 'joint family' is used in any law or judicial precedent, it becomes necessary to ascertain whether it is being used in the larger sense or in the narrower sense. The expression 'joint family' when it is used in its narrower sense to denote a coparcener refers to a body of male members of joint Hindu family who are descendants within three generations in the un broke male line next to the ancestor who is alive. All members of a coparcenaries are called coparcenaries. They acquire title to the coparcenaries property or joint family property by birth with a right to enforce a partition. The mode of acquisition of title by a coparcener to the coparcenaries property is called un obstructed heritage (aparthibandhadaya) as distinguished form acquisition of title by a person on the death of another (obstructed heritage or saparthibandhaday). Female members of joint family are not considered as members of a coparcenaries. They have only a right to be maintained by the joint family. In recent times, by statute law enacted by Parliament and by other legislatures, they have no doubt been given certain additional rights, but they have not ben treated as members of a coparecnary.
7. A coparcener as a member of the coparcenaries has an interest in the property owned by the coparcenaries and he can also have his own separate property. They following are generally recognised as coparcenaries property :
(i) ancestral property; (ii) property allotted at a partition; (iii) property jointly acquired by coparceners; (iv) property acquired with the aid of coparcenaries property; (v) separate property of coparceners thrown into family hotchpot and treated as coparcenaries property; and (vi) separate property of a coparcener blended with coparcenaries property.
8. It is unnecessary to deal with all the modes in which coparcenaries roperty can be acquired for purposes of this case. We are concerned only with one mode by which the separate property of a coparcener can acquire the character of coparcener property. It can happen when the separate property of a coparcener is voluntary thrown by him the joint stock or common hotchpot of the family with the intention of abandoning all separate claims.
9. What are the consequences of a separate property of a coparcener being impressed with the character of coparcener property After the property becomes coparcenaries property-
(i) the ownership of the property will vest in the whole body of caparceners;
(ii) if the coparcener is a manger of the joint family, such property will continue to be under his management and he can still alienate it for purposes of legal necessity or benefit of the family;
(iii) if the coparcener is the father, the interest of his sons in that property can be sold in order to discharge his debts which are not 'avyavaharika' in nature;
(iv) the undivided interest of the coparcener in the coparcener property including the property in question can be brought to sale by his creditor :
(v) the property along with other coparcenaries property would become subject to devolution by servivorship; and
(vi) the coparcener can still claim a share in the property along with other coparcener by enforcing a partition.
10. From the forgoing, it is clear that even after throwing his separate property into the joint family hotchpot, the coparcener will not have abandoned all interest in the property. he has still some rights in it. While he treats his separate property as jointly family property what he intends is only to transform his individual property into collective property of him self other coparceners and to alter the mode of devolution of the said property.
11. Would similar consequences flow if a female member gives up her separate right in her property in favour of a joint family? The answer is in the negative. When the property becomes joint family property-
(i) the female member cannot manage it, for she can never be a manager of a joint Hindu family governed by Mithakshara law;
(ii) no part of it can be sole in execution of a money decree obtained against her by any of her creditors; and
(iii) she cannot seek a partition of the property (except when it is permitted by statute law).
12. She would virtually lose all control over the property and there would be extinguishment of all her rights in it, except that she may be able to claim change on the siad property also for her maintenance.
13. It is, therefore, sees that the legal consequences of abandonment of his interest in separate property in favour of the joint family by a coparcener are different from the consequences of a transfer by a female member of her property in favour of joint family and those consequences are dependent upon the pre-existing jural relationship amongst the parties to such a transaction. it is in view of the above his separate property in favorer of the joint family or the act of impressing the property with the character of joint family property is not considered as a transfer or a gift. In Mallesappa Bandappa Desai v. Desai Mallappa Alias mallesappa : 3SCR779 , the Supreme court held that where a member of the joint Hindu family blended his self-acquired property with property of joint family, either by bringing his self-acquired property into a joint family account or by bringing joint family property into his separate account, the effect was that all the property so blended became joint family property. But it was of the opinion that the said view would not be applicable to a case of Hindu female even though she was a member of joint family. In arriving at the above conclusion, the Supreme Court observed as follows :
'The question which falls for our decision is : Dose this principle apply in regard to a property held by HIndu female as a limited owner In our opinion, it is difficult to answer this question in favour of the appellants. The rule of blending postulates that a coparcener who is interested in the coparcenaries property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenaries property. If it appears that property which is separately acquired has ben deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparceneries its separate character by reason of the owner's conduct and gets thrown into the common stock of which it becomes a part. this doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenery property and desires to blend his separate property with the coparcenaries property. there can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an it me of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenery and coparcenaries property as well as existence of the separate property of a coparcener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a HIndu female is not a coparcener and as such has no interest in coparcenery property. She holds the property as a limited owner, and on her death the property. has to devolve on the next reversion to her mother's estate as in Madars o a HIndu widow succeeding to her husbad's estate, to efface herself ahd accelerate the reversion by surrender; but, as is wel-known, surrender has to be effected according to the rules recognised in that behalf. A HIndu female owning a limited estate cannot circumvent the rules of surrender and allow the members of herhusband's family to treat her limited estate as part of the joint property belonging to the said family. On first principles such a result would be inconsistent with the basic nation of blending and the basic charactor of a limited owner's titled to the property held by her, ' (Under-lining* is ours).
the above decision of the Supreme Court, it appeals to us, rested on the fact that the blending of the property of a HIndu female with joint family property could not take place because she was not a coparcener and not upon the nature of interest which she held in the said property. It therefore, follows that if the separate property f a member of a family could be treated as the property of the joint family without there being a formal instrument of transfer, the owner of the separate property must be a coparcener. In Lakkireddy Chinna Venkata Reddy v. Lakkireddy Lakshmanna A. I. R. 1963 S. C. 1601. The Supreme Court observed that the law relating to blending of separate property with joint family property was well settled and that property, separate or self-acquired, of a member f a joint family may be impressed with the charactoer of joint family property if it was voluntary thrown by the owner into the common stock with the intention of abandoning his separate claim therein. On the above basis it was and that the assessee in this case being a member of the joint family, it was possible for her also to throw her separate property into the common stock without an instrument of transfer. We find it difficult to agree. We are of the opinion that the Supreme Court has used the expression 'joint family' in the above case in the narrower sense, i.e., as being equivalent to coparcenaries, Reliance was placed by the counsel for the assessee on Gowli Buddanna v. Commissioner of Income-tax  60 I. T. R. 293;  2 S. C. R. 224 (S. C) in which it was held that a HIndu undivided family could be in existence only with one male member and other female members in support of the argument that all the male members and female members of a joint Hindu family were entitled to the same status and privileges. In the above decision of the Supreme court there is only an explanation of the meaning of the expression 'Hindu undivided family ' in the Income-tax Act. It was not considering the question, whether a female member of a joint HIndu family could by merely making a declaration, treat her separate property as joint family property.
14. Sri V. Krishnamurthy, learned counsel for the assessee, next contended that the law which recognised the transformation of separate property of a coparcener into a joint family property was judge-made law and hence the very same principles can be extended to the case of female members of a joint family also without making a distinction between one member anbd another member of a joint HIndu family on the ground of sex. It was and that the acceptance of the said view would be in conformity with modern notions of civil law. there are two difficulties in agreeing with the above contention. If the case is considered as one based not on the Hindu law, but only on principles of justice, equity and good conscience based on considerations of love and affection, then no distinction can be made between a HIndu family on the one hand and a Christian or muslim family on the other. The same principle will have to be extended to all families in India and whenever a member of a family makes a declaration treating a property as property belonging collectively to all the members of the family it will have to be held so irrespective of the fact that a coparcenaries is foreign to many of them. Secondly, the principle applicable to the case of members of a coparcenery being an exception to the general law of the land which requires in certain cases the transfer to be effected only by means of a registered instrument, it cannot be extended to all cases other than those to which it is now confined. The exception cannot be permitted to override the rule itself. We do not also think that the above principle of Hindu law which authorities a coparcener to treat his separate property as joint family property is merely a part of judge-made law having on basis in the Smritis. in Mithakshara Law at I iv. 31, we find the following : (matter is not in court language.)
' Among unseparated brethren if the common stock be improved or augmented by any one of them through agriculture, commerce or similar means and equal distribution neverthless takes lace and double share is not allotted to the acquirer.'
hence we cannot accept the above contention. it is to be seen that the principle in question is analgous, though not identicial, to that underlying section 14 of the Partnership Act which recognises conversion of the individual property of a partner into partnership property without an instrument of transfer. Here again the validity of such a transaction depends upon the pre-existing jural relationship amongst the partners of the firm which is no doubt a creature of contract. That the position of coparceners is different from the case of female members of a joint HIndu family can also be demonstrated by giving two more illustrations from HIndu law. Where coparceners by their joint labour or in their joint business acquire property even without the aid of ancestral estate that property, in the absence of a clear indication of a contrary intention, would be owned by them as joint family property. Similarly, when a gift of a property is made to the members of a coparcener there is a presumption that the property would be joint family property in their hands unless there is evidence to the contrary. But the legal position is different when the joint acqusition is made ort a gift is received by husband and wife or father and daughters, or brothers ans sisters even though they are all members of a joint family. No such presumption would arise when a female members is one of the acquires or donees. Here again the question whether the parties are coparceners or not importance in deciding whether the property is joint family property or not.
15. At this stage we may also observe that HIndu law recognised yet another transaction which was dependent up to the pre-existing relationship amongst the parties even though it did not strictly amount to transfer The said transaction was oen by which a limited owner could surrender her limited estated in favour of the nearest reversioner. She could do so in favour of the nearest if there was one or of the whole body of body of nearest reversioners, if there were more than one. Such an act of surrender amounted to the effacement of the limited owner-an effacement which in other circumstances was effected by actual death or by civil death of a limited owner (vide Natvarlal Punjabhai v. Dudubhai Manubhai : 1SCR339 .) It was also open to a widow who was a limited holder to surrender the estate toa next reversioner even where the latter was a female heir. But a widow could not validity surrender in favour of the next female heir and her husband jointly, for her husband would be a stranger in that contest. (See Mummareddy nagi Reddy v. Pitti Durairaja Naidu : 2SCR655 .) It was held in that case that no surrender of the widow's estate could possibly be made in favour of anybody except the next heir of her husband and it was not possible for the widow to say that she was withdrawing herself from her husband's estate in order that ir might vest in somebody other than the next heir of the husband. The Supreme Court further observed that in favour of a stranger ir could be an act of transfer but not one of renuciation. This proposition establishes that in certain circumstances the validity of a transaction depends upon the relationship between the parties to it, and not merely on the property which is the subject-matter of the transaction.
16. The cases relied upon by the Tribunal to hold that the assessee in this case could, by declaration, throw her share in the property in question into the common hotchpot do not actually say so. On the contrary, we have a decision of the High Court of Delhi in commissioner of Income-tax v. Pushpa Devi : 82ITR7(Delhi) . in a similar case in which it has ben held that only a coparcener in a joint HIndu family had the right to throw self-acquired property into the family hotchpot and that the assessee who was a female member of a joint could not by her declaration convert her separate property into joint HIndu family property.
17. We are of the opinion that such a right is available only to a coparcener and to nobody els. the assessee, in this case, being not a coparcener, cannot in the circumstances of the case, ask the income-tax authorities to treat her interest in the property in question as joint HIndu family property from the date on which she made a declaration expressing her intention to treat it is as the property of the joint family of which the assessee is a member.
18. Our answer to the question referred to above is, therefore, in the nagative. the assessee is directed to pay Rs. 250 by way of costs to the Commissioner of Income-tax.
19. Question answered in the negative.