R. S. PATHAK J. - The assessee is a Hindu undivided family, Hirday Narain being the karta.
Before the year 1949 Hirday Narain was the karta of a Hindu undivided family consisting of himself and five sons, one of whom Jogendra Prakash had attained majority. This Hindu undivided family carried on business, and up to the assessment years 1949-50 the income from the business was assessed in its hands.
On February 12, 1949, Hindu undivided family applied to the Income-tax officer for an order under section 25A of the Income-tax Act, 1922, claiming that there was a complete partition of the family. An order under section 25A was made, recognizing the complete disruption of the family on and form November 19, 1949.
After the partition of the family a partnership firm, Hirday Narian, Jogendra Prakash, was constituted Hirday Narain and Jogendra Prakash being the partners and the remaining minor sons of Hirday Narain being admitted to the benefits of the partnership. The partnership took over the business which had hitherto been carried on the Hindu undivided family. The partnership firm was registered under section 26A of the Income-tax Act.
On April 6, 1950, Hirday Narian was blessed with another son, Satyendra Prakash. The assessment for the assessment years 1951-52 and 1952-53 were made on Hirday Narain in the status of a Hindu family but subsequently, it appears that, without any express order being passed, the status was altered to that of an 'individual'.
On July 11, 1952, Hirday Narian executed a gift deed transferring his share capital in the partnership firm, Hirday Narain Jogendra Prakash, to his minor son, Satyendra Prakash. Meanwhile, one of the other minor sons, Surendra Prakash, had also attained majority. In the circumstances a fresh partnership was constituted, comprising of Jogendra Prakash and Surendra Prakash the major sons of Hirday Narian, as partners and admitting the minor sons, including the infant, satyendra Prakash, to the benefits of the partnership. Hirday Narian after gifting is share capital to Satyendra prakash, ceased to be a member of the new partnership firm.
For the assessment years 1953-54 to 1956-57 (the relevant previous years being the financial years 1952-53 to 1955-56) the Income-tax officer assessed Hirday Narain as an individual. For the assessment years 1953-54, he included in the assessment of Hirday Narain under section 16(3)(a)(iv). Satyendra Prakash having become entitled to the benefits of partnership from July 12, 1952, his share in the firms income was included in the assessment of Hirday Narain under section 16(3)(a)(iv). In the respective assessments of Hirday Narain for the assessment years 1954-55 to 1956-57, the share of Satyendra Prakash alone in the firms income was included, the inclusion being justified by reference to section 16(3)(a)(iv). Against the assessment for the assessment years 1953-54 to 1956-57 upon Hirday Narain in the status of an individual, he appealed to the Appellate Assistant Commissioner, contending that he constituted a Hindu undivided family with his son, Satyendra Prakash and that, therefore, the provisions of section 16(3)(a)(iv) and of section 16(3)(a)(iv), which were applicable only to the assessment of an individual could not be invoked and, in the firms income was not justified. The contention was rejected by the Appellate Assistant Commissioner, who held that Hirday Narain was rightly assessed in the status of an individual. However, as one of the sons Hirday Narian had attained majority in the previous year relating to the assessment years 1953-54, he directed the exclusions of his share of income. He also found that the Income-tax officer had erred in including the share of Satyendra Prakash in the firms income under section 16(3)(a)(iv) because, he said, Satyendra Prakash enjoyed a share in the joint family property in his right as a coparcener, and that any transfer by the father to a coparcener of the latters share in the joint family property was an empty formality. Hirday Narain, the assessee, moved the Income-tax Appellate Tribunal in appeal challenging the finding of the Appellate Assistant Commissioner that the income belonged to an individual and not to a Hindu undivided family and that section 16(3)(a)(iv) applied to the case. The Income-tax Officer appealed against that part of the share of income belonging to Satyendra Prakash from the assessments for the years 1953-54 to 1956-57. The Tribunal found that the income fell to be assessed in the hands of Hirday Narain in the status of a Hindu undivided family and not as an individual and that, therefore, section 16(3)(a) did not apply. During the hearing of the appeals, the departmental representative raised an additional ground that, even if the status of the assessee be treated as that of a Hindu undivided family, the share of Satyendra Prakash was assessable in the hands of the family consisting of Hirday Narain and Satyendra Prakash. Objection was taken by the assessee to the admission of this ground, on the plea that the Income-tax Officer and the Appellate Assistant Commissioner, had no opportunity to consider this question, but the objection was overruled by the tribunal which admitted the ground on the merits held that the property belonged to the Hindu undivided family governed by the Mitalshara school of Hindu law that it could not be gifted by a coparcener unless he was the sole surviving coparcener and, therefore, the gift made by Hirday Narain was of no legal effect and accordingly the share in the firms income falling to Satyendra Prakash on account of the Hindu undivided family and was liable to taxed as such.
The assessee applied for a reference to this court and suggested that the following four questions should be referred :
1. Whether the tribunal could allow the income-tax department to urge an additional ground of appeal which did not arise out of the orders of the Appellate Assistant Commissioner and the Income-tax Officer under appeal
2. Whether the Tribunal could allow the additional ground of appeal involving questions of fact which had not been found by the income-tax authorities at all and in respect of which the assessee and/or the department had no opportunity to lead evidence
3. Whether when Hirday Narain and Satyendra Prakash (father and minor sons) were the only coparceners of the Hindu undivided family a part of the property belonging to such family governed by the Mitakshara school of Hindu law could be gifted by the father to the only other coparcener, his minor sons
4. Whether the Tribunal had any material to or could arrive at the finding that the income arising to Satyendra Prakash by virtue of his admission to the benefits of partnership was the income of the Hindu undivided family headed by Hirday Narain ?'
The Tribunal has made the instant reference and invited our decision on the following questions :
'Whether, on the facts and circumstances of the case, the inclusion of the share income of Satyendra Prakash with that of Hirday Narain was justified in law ?'
It considered that it was not necessary to refer the four questions suggested by the assessee as the question framed by it fully covered the points in issue. Learned counsel for the assessee sought to make two points before us. He contended that it was open to Hirday Narain to make a gift of his share capital in the firm to his son, Satyendra Prakash, and the finding of the tribunal to the contrary was erroneous. He further urged that it was not open to the Tribunal to allow the Income-tax Officer to challenge the validity of the gift for the first time in the appeal before it. Having heard learned counsel for their parties, we are of opinion that the first contention must prevail and, in the circumstances, it is not necessary to express any opinion on the second.
There is no dispute that the share capital of Hirday Narain in the firm constituted coparcenary property of himself and satyendra prakash. Hirday Natain was karta of the family consisting of himself and his minor son, and was entitled under the Hindu law to manage the coparcenary property. As a manager he was entitled to alienate the coparcenary property within the well-settled limits, and for the specific purposes prescribed by the Hindu law. As a manager he could alienate the coparcenary property for legal necessity or for the benefit of the estate. An alienation made by him without the consent of the other coparceners was not avoid but voidable at the option of the other coparceners, who could subsequently affirm it or repudiate it. As a Hindu father, Hirday Narain enjoyed certain special papers of alienating coparcenary property. Included in these special powers was the authority to make a gift of ancestral movable property within reasonable limits for the purpose of performing 'indispensable acts of duty, and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress and so forth.' He could also make a gift of ancestral immovable property within reasonable limits for pious purposes.
If the gift treated as an alienation made by Hirday Narain as a mere manager of the family, there could be little doubt that the gift having been made in favour of the only other coparcener, and, therefor, to his benefit, there could be no objection by the latter. It is difficult to contemplate that Satyendra Prakash would repudiate the transfer made in his favour. Even if the gift be treated as a transaction made without legal necessity, the transaction not being void but only voidable at the option of, Satyendra Prakash there is nothing to show that the latter had ever expressed himself against the making of the gift. A Bench of this court held in Jageor Pande v. Deo Datt Pande that an alienation by the manager of a joint Hindu family without necessity is not absolutely void but is voidable at the instance of the persons whose interests are affected by it, namely, the coparceners in the property. This decision was followed by the High Court, of Rajasthan in Commissioner of Income-tax v. Braham Dutta Bhargava, where the law on the subject has been elaborately expounded and it was held that a gift by the manager of a joint family of coparcenary property to a member or members thereof is voidable and is not void ab initio and that such a gift could be challenged only by the members of the family whose interests are affected thereby and not by strangers. We are in respectful agreement with the learned judges of that court. We are accordingly of the view, that in the circumstances of this case, the gift made by the Hirday Natain in favour of Satyendra Prakash was valid, and the finding of the Tribunal to the contrary is not correct.
Learned counsel for the commissioner contends that the consent of Satyendra Prakash, to the gift cannot be implied because he was a minor and, therefore, incapable of giving his consent. There is no fierce in this contention. The transaction was in favour of the minor and to his benefit.
Learned counsel for the commissioner finally contended that the provisions of section 16(3)(a)(iv) applied to the case, even though the tribunal determined the status of the assessee as that of a Hindu family.. Upon a plain reading of section 16(3)(a)(iv), which applies only to the computation of the total income of an individual, this argument is untenable.
We are, therefore, of the view that the gift by Hirday Narain in favour of Satyandra Prakash being a valid transaction, the share of Satyendra Prakash in the firms income could not be included in the assessment of the Hindu undivided family, of which Hirday Narain was the karta. We, therefore, answer the question in the negative.
We direct that a copy of this judgment under the seal of the court and the signature of the Registrar shall be sent to the Income-tax Appellate Tribunal.
The assessee shall get its costs from the commissioner of Income-tax which we assessee at Rs. 200. Counsels fee is also assessed at Rs. 200.
Question answered in the negative.