Hardayal Hardy, J.
(1) The question arising for decision in this Income-tax reference under Section 256(1) of the Income-tax Act, 1961 is a pure question of Hindu Law which has arisen in a case under the Income-tax Act. The question relates to the right of a female Hindu who' although she is a member of the Hindu undivided family, is none-the-less not a co-parcener. She wants to blend her property with the co-parcenary property of the joint family. Can she do so by a mere declaration made by her in that behalf? The Income tax Appellate Tribunal has taken the view that she can while the contention raised by the Revenue is that she cannot. That is the controversy in this case.
(2) The question referred to us deals with what point and is worded :-
WHETHER on the facts and in the circumstances of the case, the Tribunal rightly held that the income of Rs. 21,544.00 was not the individual income of the assessed Shrimati Pushpa Devi, but was the income of her Hindu undivided family?
(3) The facts are not in dispute and may be stated as follows :- Shrimati Pushpa Devi, an individual, is the assessed. The statement of the case relates to the assessment year 1963-64. The previous year ended on 31-3-1963.
(4) The assessed is a member of the Hindu undivided family consisting of her husband Kanwal Narain Khanna, he'r father-in-law, Gur Narain Khanna, her mother-in-law, Kando Devi and her minor son Ravi Narain Khanna and her three daughters Rajni, Rama and Madhu, The assessed in her individual capacity and with the aid of her personal funds entered into a partnership with her father-in-law. Gurnarain Khanna, on 19-6-1958, in the name and style of Gurnarain Jagat Narain and Co. Her minor son Ravi Narain had been admitted to the benefits of this partnership. Each of them had l/3rd share in the assessed and Gurnarain had equal share in the loss, if any.
(5) The aforesaid firm owned and ran two cinema theatres, one known as Nishat Talkies at Kanpur and the other known as Novelty Talkies at Lucknow. Separate' water-tight accounts were being kept in respect of these two businesses. Separate profit and loss accounts were drawn up, which were consolidated while filing the income return. On 1-9-1961 the assessed made a swam declaration. In the first clause of the said declaration, she has referred to her share in the profit and loss of the firm of Gurnarain Jagat Narain and Company. In the second clause, she has stated that total capital of Rs. 67,284.57 made up of a sum of Rs. 16,666.67 standing in her capital account and Rs. 50,617.90 standing in her current account, stood to her credit in the books of Nishat Talkies, Kanpur, on 1-9-1967. After mentioning in clause 3 of the said deed that she was the sole and absolute owner of the said amount and had her share in the Nishat Talkies. In clause 4 she has declared her intention to treat her capital and the share in the business of Nishat Talkies, Kanpur, as the joint family property of her Hindu undivided family. Clause 5 reiterated the said intention. Clause 6, is also more or less a repetition of the same intention where it has been clarified that she has abandoned for ever her interest and her separate ownership claim on the said share capital investment of Rs. 67,284.57 and the said -/5/4 share in the net profits and Rs. -/8.00 share in the net losses in the' business of Nishat Talkies. Kanpur; in favor of the said Hindu joint family to be wholly, exclusively, solely and fully owned, enjoyed and possessed by it,
(6) According to clause 4, she voluntarily and without any hesitation or reservation, threw the said capital and shares into the stock of hotchpotch of the Hindu joint family of 'Gurnarain Khanna and Sons' consisting for the time being of :
1.Lala Gurnarain Khanna aged 62 years Karta/coparcener and also a memlJer; 2. Smt. Kando Devi, my mother-in-law aged 60 years, member. 3. Shri Kanwal Narain Khanna, my husband aged 42. years, a coparcener member. 4. Myself aged 37 years, wife of Shri Kanwal Narain Khanna, member. 5. Shri Ravi Narain Khanna, my son aged 7 years minor coparcener, member. 6. Rajni, Rama and Madhu my daughters
(7) According to clause 5, she further declared that 'From this day viz. first day of September, 1961, I again declare and make known to every body that my exclusive or separate ownership and enjoyment of the above said share capital investment and said share in the profits and losses of Nishat Talkies, Kanpur shall cease to be my self acquired or separate property and the ownership, enjoyment and possession of the same shall vest only with the said Hindu joint family to be enjoyed by it exclusively solely and wholly hereinafterwards'.
(8) RS. 20,865.00 being the l/3rd share of the income from the business of Nishat Talkies for the year under reference, was credited to the account of the assessed, in the books of the firm of Gurnarain Jagat Narain and Company. The assessed Hindu undivided family paid advance tax in respect of this amount of income and also filed its return in respect thereof. The assessed on the other hand did not include this income in her return for the year under reference, but made the following note in para I, section thereof.
SHARE of income from Nishat Talkies, Kanpur Rs. 20,865/'-. Please see note on back page of computation of assessable income.
(9) The said note on the back page of the return read as under:
BY a declaration dated 1st September, 1961, the assessed threw into the Hindu Joint Family HotchPotch Gurnarain Khanna & Sons her l/3rd share in the profit and loss of Nishat Talkies, Kanpur also owned by M/s. Gurnarain Jagat Narain & Co., partnership firm and consequently the said l/3rd share of income from Nishat Talkies Kanpur for the accounting year commencing from 1st September, 1961 and ending with 31st August, 1962 relating to 1963-64 assessment year cannot be assessed in her status as individual i.e. in her hands. The said l/3rd share of income from Nishat Talkies, Kanpur can be assessed only in the hands of the said Hindu Joint Family Gurnarain Khanna & Sons. The said Hindu Joint Family has filed the said declaration and advance tax with C-11 District New Delhi.
(10) The assesee pleaded before the Income-tax Officer that the sum oF Rs. 20.865.00 which was l/3rd share of the profit from the business of Nishat Talkies credited to her account in the books of the firm. really belonged to the Hindu undivided family by virtue of and with effect from her declaration of 1-9-1961 and was, thereforee, not assessable in her hands.
(11) The Income-tax Officer held that the share income from Nishat Talkies, Kanpur accrued to the assessed in her individual capacity and not as an agent of the Hindu undivided family and that it was. hence her income and assessable in her hands. ' As regards the assessed's contention that she had impressed her personal property with joint family character, the Income-tax Officer observed:
THROWING of capital amount into the family stock would also not help in this case since sine quo non of the matter is as laid in the case of S. Bhagwant Singh v. Coin missioner of Income-tax that the Karta should become a partner in consequence of investment.
He also rejected the suggestion that a sub-partnership came to be formed with respect to the assessed's share in title Nishat Talkies business.
(12) The assessed preferred an appeal before the App!.'lliilc Assistant Commissioner who rejected her claim to exclude the income of Rs. 21,544.00 firstly, on the ground that the assessed. being only a female member of the joint family but not being a co-parcener, was not entitled to impress her personal property with the joint family character, and secondly, on the ground that the assessed could not have thrown her personal property in her joint family hotchpotch as the joint family did not 'possess any joint family property.
(13) Against the decision of the Appellate Assistant Commissioner the assessed filed a second appeal before the Income-tax Appellate Trbunal where she contended that she had by her unequivocal expression of intention impressed her personal property viz. 1/3rd share in the Nishat Talkies business with the character of co-parcenary property. She contended that the doctrine of Hindu Law did not make any distinction between a coparcener and a member, male or female, and that any member of joint family, be it a male or female, could impress his or her personal property with the character of joint family property. She further contended that it was not necessary that the joint family should own any nucleus of joint family property before any member of the family could so convert his personal property into joint family property. In support of her stand she referred to the fact that the Gift Tax Officer had held that the conversion by the assessed of her l/3rd share )n the Nishat Talkies business into joint family property amounted to a gift of her interest in the business in favor of the joint family and had subjected the said transaction to gift tax on that basis.
(14) The Revenue, on the other hand contended that it was the privilege of only a male co-parcener of a Hindu undivided family to convert his personal property into joint family property by an unequivocal conversion of his intention to do so. it stated that as the assessed was not a co-parcener, she inherently lacked the legal capacity to convert her personal property into joint family property and contended that she continued to remain to be the owner of her share in the Nishat Talkies business and that she continued to earn the income there from in her individual capacity in her own right even after her declaration dated 1-9-1961. it next contended that there should be a nucleus of joint property before a co-parcener can throw his property in the common stock so as to convert it into joint family property. It argued that as there was no nucleus of joint family property in the present case the assessed could not throw her personal property in the common hotchpotch which did not exist. even granting for the sake of argument that a female member of a joint family can convert her personal property into joint family property.
(15) Before the Tribunal it was not disputed that nothing more than a mere unequivocal declaration of one's intention was necessary to impress one's property with the character of joint family property. The question for consideration thereforee was whether the doctrine of Hindu Law which recognised the power to convert a personal property into joint family property by mere expression of one's unequivocal intention to do so and without recourse to any legal formalities, is restricted to a co-parcener only or whether this special rule of Hindu Law is applicable to all the members of joint family B including female members. Hence the question for consideration was whether there is any nexus between the rule and the sex of the member of a Hindu joint family and whether the doctrine of blending rests upon any special characteristic of a male member of the joint family, which, if removed, will render the doctrine in-applicable.
(16) The Tribunal by a reference to some of the decisions of the Privy Council and the Supreme Court came to the conclusion that the special process of conversion of personal property into a joint family property can be employed by any member of a joint family and not necessarily by a co-parcener alone. The Tribunal also held that whatever be the dies-qualifications to which a female may have been subjected under the pure principles of Hindu Law, no such discrimination was to be found in the case of a Hindu female so far as this rule of Hindu Law is concerned.
(17) The contention that prevailed with the Tribunal was that there appeared to be no apparent reason or justification for discriminating against a Hindu female on the ground of sex in the matter of this judge-made law, which especially does not enlarge her rights or improve her status or position but only enables her to relinquish her absolute property in favor of her joint family. The rule does not entitle her to advance any claims un-known to Hindu Law, but only enables her to surrender and sacrifice her own interests in the property in the larger interests of the joint family. It was contended that the position was not foreign to the genius of Hindu Law. There is a very close parallel to this position in Hindu Law which has now been well established and recognised viz. that a female in Hindu Law can by her unequivocal expression of intention, make her absolute personal property a part of the estate of her deceased husband. The position that a Hindu widow can impress her personal property with the character of the personal property of her husband's estate which can become joint family property in the event of her making an adoption, is not wholly foreign to the pure principles of Hindu Law. If the widow can thus augment joint family property by mixing up her personal property with it to her own disadvantage and at personal sacrifice, no restriction should be recognised in a case where she wants to throw her personal property into the joint family hotchpotch.
(18) A reference was also made before the Tribunal to fhe position of the Hindu female under the Hindu Women's rights to Property Act, 1937 and the Hindu Succession Act. 1956 and it was said that her position now is almost on a par with that of a co-parcener though technically speaking there are some minor points to discrimination. When a female has come to acquire a position and status which is very much akin to that of a male in Hindu Law. there is no reason to read the rule of blending in a narrower manner so as to discriminate against a female.
(19) As a result, the Tribunal held that there was nothing in law which went against the view taken by them.
(20) On the question whether it was necessary for the conversion of personal property into a joint family property that there should have been some nucleus of the joint family property, the Tribunal held that the holding of property by the joint family was not at all necessary B to enable a member of the family to impress his or her personal property with the character of the joint family property. Accordingly, it was held that the assessed had converted her l/3rd share in the Nishat Talkies business into her joint family property and that as such the said interest no more belongs to the assessed in her individual capacity but belongs to her joint family and is thereforee not liable to be assessed in her hands as an individual.
(21) At the hearing of the reference, the counsel for the Commissioner has relied upon two decisions of the Supreme Court in Mallesappa Bandeppa Desai and others v. Desai Mallappa and others : 3SCR779 and Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama : 2SCR172. In the first case which was the case of a Hindu female as a limited owner it was held that the rule of blending can have no application in such a case. But the question of blending was also considered in detail and the judgment contains detailed observations about the nature of the rule of blending and the principles thereof. At pages 785-786 it was said:
THE rule of blending postulates that a co-parcener who is interested in the co-parcenery property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the co-parcenary 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 co-parcener loses 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 thereforee inevitably postulates that the owner of the separate property is a coparcener who has an interest in the co-parcenary property and desires to blend his separate property with the coparcenary property.
The above passage makes it clear that a person who is not a coparcener has no right to throw her separate property into the joint property.lt is also evident from the above passage that before this rule of blending can come into play there must also exist co-parcenary property (apart from the self-acquired and separate property which is sought to be blended with the joint property). This proposition, as has been said by the Tribunal, has in fact been made very clear in the following words:
THE basis of the doctrine is the existence of coparcenary and co-parcenary property as well as the existence of the separate property of the coparcener.
(22) Gajendrilgadkar J. who wrote the judgment of the Court while explaining the principle of the doctrine observed :
ONfirst principles such a result would be inconsistent with the basic notion of blending and the basic character of limited owner's title to the property field by her. This aspect of the matter has apparently not been argued before the courts below and has not been considered by them. Thus, if the doctrine of blending cannot be involved in regard to the property held by Channamma, the appellants' claim in respect of the said property can and must be rejected on this preliminary ground alone.
(23) The Supreme Court was obviously not dealing with the case of a Hindu female holding property as an absolute owner. But its observations can by no means be regarded as confined to a Hindu female holding property as a limited owner. The case of a Hindu female holding property as an absolute owner could not have been far from their minds. The second case is again the case of a male coparcener and thereforee whatever observations are made therein cannot be of much assistance in dealing with the point. What was said in that case was in the context of a male co-parcener. The passage reads:
LAW relating to blending of separate property with joint family property is well-settled. Property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts. abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.
On behalf of the assessed. strong reliance has been placed on the use of the language 'separate or self-acquired property of a member of a joint Hindu family' and it is contended that if the doctrine of blending was applicable to a co-parcener then there is no reason why the words 'a member of a joint Hindu family' were used. It is not disputed that a female Hindu is undoubtedly a member of the joint Hindu family although she is not a co-parcener and if the self acquired or separate property of a male member of the family can be blended with the joint property of the family, it may as well be the property of a Hindu female who is as much a member of the family as the male.
(24) It is no doubt true that the co-parcenary property is subject to survivor-ship while the separate and self-acquired property of a member is subject to succession; but when the latter property is blended with the family property and is thereforee impressed with the character of that property, the rule of succession gives place to the rule of survival. The male co-parcener whose self-acquired or separate property is thrown into the joint family hotchpotch still - retains interest in that property and instead of being its absolute owner, he lets the interest of other co-parceners into it and he along with the other co-parceners acquires a joint interest and joint possession in it. Another incident or that property is that the male issue of the co-parcener acquires an interest by birth. The co-parcenary interest is thereforee fluctuating with births and deaths. The co-parcener who allows his property to be blended ceases to be the absolute owner of the same and shares it along with others. His own separate heirs lose all interest in it except what may come to them by survivorship. The situation is entirely different in the case of a Hindu female who may like to have her separate and self-acquired property or even her limited estate to be blended with the co-parcenary property. She loses all her interest in it and she also does not get anything out of the co-parcenary property except what she may get otherwise, to which we shall refer later. Her own heirs lose all their interest in it and her own property which was previously subject to succession,. becomes subject to survival in which her heirs do not get any interest at all.
(25) Learned counsel for the assessed referred us to Article 227 of Hindu Law by Mulla, Thirteenth Edition where it is said that the property which was originally the separate or self-acquired property a member of a joint family may, by operation of the doctrine of blending, become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of aba ndoning all separate claims upon it. The separate property thrown into -p the common stock is subject to all the incidents of joint family property. Similarly where members of a joint family, who have control over the joint estate, blend with that estate property in which they have separate interests, the effect is that all the property so blended becomes joint family property. The doctrine cannot be applied to a Hindu female who has acquired immovable property from her father for she is not a co-parcener nor can it be applied to a property held by a Hindu female as a limited owner. The argument of the learned counsel is that the Article which permits the blending of separate property with the joint family property is oi'imarilv based on the decision of the Supreme Court in the case of Mallesappa v. Malappa(2) which was primarily concerned with the property owned by a Hindu female from her father and thus the law applied to the separate property of the female or that in which she was to be regarded as a limited owner. But what happens to the property of which the Hindu female is an absolute owner? There is nothing in Malleiapna's case about such property.
(26) It appears to us that there is no substance in this argument. The passage in that case clearly states that where members of a joint family who have control over the joint estate, and those members can be co-parceners alone, blend with the family estate the property in which they have separate interests, the effect is that all the property so blended, becomes joint family property. The passage thereforee clearly makes out the case of a co-parcener blending his separate property with the family property and not of a Hindu female wanting to do so.
(27) Counsel for the assessed conceded that once the separate property of a Hindu female is thrown into the joint family hotchpotch, she and her heirs will lose all their rights in that property. According lo the learned counsel, she will have her right of maintenance and if there is a partition among the co-parceners she will get an equal share with a co-parcener. Our attention was invited to the following decisions: Jairam Nathu v. Nat/in Shainji T.L.R. 31 Bom 54 . Mt. Radhahai v. Pandharinath Bapi( Nar^'an Bapn Kalai and others A.I.R. 1941 Nag 135 and Partap Singh v. Dalip Singh : AIR1930All537 though the value of the Stridhan which the wife had obtained from husband or father-in-law will have to be deducted from her share (see 31 Bombay 54 supra). It will however be noticed that although she has a share which is equal to that of a son, she has no right to compel a partition so long as the sons remain united. In Madras, a mother is not entitled to a share. She is only entitled to a provision for her maintenance which cannot in any case exceed the share of a son (Venkafammal v. Andvappa Chetti & others I.L.R. 6 Madras 130(7).
(28) The result is that by blending her separate property with the family estate she loses the right of compelling a partition which a co-parcener undoubtedly has, for so long as the sons remain united. she has merely a right to maintenance. Her own heirs on the other hand. lose all their interest in the property.
(29) We were next referred to the Hindu Women's right to Property Act, 1937 and sections 6 to 30 of the Hindu Succession Act, 1956. These statutes have no dobut made serious in-roads into the pure principles of Hindu Law and have considerably enhanced the status of a Hindu female. Under Section 3 a Hindu female according to Mitakshara gets the same share as a son in the separate property (J left by her husband in case her husband dies intestate. But the interest which she gets is the limited interest known as a Hindu Women's estate provided that she shall have the same right of claiming partition as a male owner. As regards the joint family property. her interest, subject to the provisions relating to the Hindu women's estate, is the same as her husband had in that property. The Hindu Succession Act 31 of 1956 repealed this Act but the rights acquired and liabilities incurred under it, were however not affected by reason of section 6 of the General Clauses Act X of 1897. Section 14 of the Hindu Succession Act however laid down a rule which obviously has some retroactive operation.
(30) The scheme of the Hindu Succession Act in the matter of suc cession to the property of a Hindu dying intestate (after the coming into force of the Act) is to lay down a set of general rules for succession to the property of a male Hindu in section 8 to 13 including the rules relating to ascertainment of the shares and portions of the various heirs. It is a part of this scheme to enact in Sections 15 and 16 separate general rules affecting succession to the property of a female dying intestate. Sections 18 to 28 are headed 'General provisions relating to succession' any lay down rules which are supplementary to the provisions in sections 5 to 17. The rules laid down in those sections are not merely explanatory of the general rules for succession. Some of them enact substantive provisions involving legal principles. The effect of some of these provisions is to abolish the Hindu Women's limit estate and any property possessed by a female Hindu, howsoever acquired, is held by her as her absolute property and she has full power to deal with it or dispose of it by will as she likes. The restraints and limitations on her power have ceased to exist even in respect of existing property possessed by her at the date of the Hindu Succession Act coming into force whether acquired by her before or after the commencement of the Act. Subject lo some limited reservations, the property is now held by her as full owner and not as a limited owner (see Section 14).
(31) Another change brought about by the Act is that impartible estates (other than those expressly saved by section 5(ii) and (iii) of the Act) ceased to be recognised as such. Such property has now under the Act all the ordinary incidents of property held by a Hindu. Whatever may be the change brought about by this Act and the change is discernible in section 14, its only effect is that a Hindu female is the absolute owner of the property, no matter in whatever manner the same was acquired by her, leaving aside the limitations in Section 14(2). But once she decides to blend that property with the joint family property, the result is title same. The Act does not make her a co-parcener. The position still remains the same. Section 6 still provides for survivorship as the rule of devolution provided that it gives to the female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the un-specified [deceased in the Mitakshara coparcenary property the same right of testamentary or intestate succession as the case may be, under the Act and not by survivorship. To that limited extent perhaps, the male relative who claims through the female relative specified in class 1. will have the right to claim interest in the coparcenary property with which the separate property of the female may have been blended during her life-time and had been impressed with the joint character of a family property.
(32) In Mallesclppa's case the Supreme Court was considering the question of blending and in that connection a reference was made to the Privy Council's decision in Shiha Prasad Singh v. Rani Prayag Klimari Dehi and others (59 Indian Appeals 331) (8) where Gajendragadkar J. referred to the text of Yagnavalkya and the comments made by Viinyaneshwara on it. On the basis of that text and its comments Sir Dinshah Mulla had made certain observations in the case of Shiba Prasad Singh of which the judgment v/as delivered by him; he had stated that they formed the basis of the doctrine of blending. Gajendragadkar J. observed that the ldxt of Yagnavalkya and the comments of Vijnyaneshwara did not appear to have any relation to the doctrine of blending and that the context of the discussion was the acquisition of property by a co-parcener with the use of a family stock. The augmentation in that case was as forming part of the original stock and an accretion to it and in such augmentation the acquirer does not get any extra share for his special exertions.
(33) The real test of blending was thus laid down by the Privy Council in Rajani Kanta Pal and others v. Jaga Mohan Pal (50 Indian Appeals 173(9) where it was held 'Where a member of a joint Hindu family blends his self-acquired property with property of the 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 is that all the property so blended becomes a joint family property.'
(34) According to the Tribunal, there is no apparent distinction between 'accretion' to the property and 'blending' and it is observed that if a woman can impress her personal property with the character of the property of her husband's estate which is in her possession', and can convert it into a joint family property, what is there that prevents her from doing so in the case of her personal property, to her own dies-advantage and at personal sacrifice?
(35) The distinctive feature of a woman's estate is that, at her death, it reverts to the heirs of the last male owner, or to the heirs of title last full female owner in the case of Stridhana property. She never becomes a fresh stock of descent. The restrictions on her power of disposition are the same whether she inherits from a male or a female. By the Hindu Women's Right to Property Act, 1937, the widow of a Hindu and his widowed daughter-in-law and grand daughter-in-law are entitled to inherit his estate, not only in default of, but along with his male issue. The widow of a deceased coparcener in a Mitakshara Hindu family succeeds, whether her husband has left male issue or not. to his interest in the coparcener property. thus defeating the right of survivorship of his collaterals. The interest devolving on a Hindu widow in the above case under the Act is the limited interest known as a Hindu Woman's estate (see Section 3(3). She fully represents the estate, and, so long as she is alive no one has any vested interests in the succession. The succession does not open to the heirs of the husband until the termination of C the widow's estate. Upon the termination of the estate, the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death. (See, Lala Duni Chaiul and others v. Musammat Anar Kali anil others (1946) 73 I.A. 187 and Lakshmi Amul and another v. Anantharama Ayyangar and another I.L.R. 1937 Mad 948 .
(36) It is not disputed that a female heir need not make any savings at all. She may spend her whole income every year either upon herself, or by giving it away at her pleasure. In Isri Dut v. Hanshlltti (10 Indian Appeals 150) the Judicial Committee considered that 'a widow's savings from her liusband's estate are not Striahan. If she has made no attempt to dispose of them in her life-time, there is no dispute but that they follow the estate from which they arose. the dispute arises when the widow, who might have spent the income as it accrued, has in fact saved it, and and afterwards attempts to alienate it.' But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. Where the widow blends funds of several kinds i.e. funds known to have come from the husband's estate and funds whose source is not known, and the blended fund is invested in re-acquiring what was the husband's estate the acquired property becomes part of the husband's property, (see YallavajUmla Surayva v. Tummalapalli Mangayva and others : AIR1941Mad345.
(37) All these are however cases of accretion to the estate. They look very much alike to blending but are actually cases of augmentation of the original estate by means of accretion. There can be no doubt about the power of the widow to augment that estate. By adding to that estate she still retains the complete power of disposal over the income. In the case of blending she loses all her control over the property including the income from that property, i)
(38) In Mallesappas case, it was said by the Supreme Court that a Hindu female holding a property as a limited owner cannot circumvent the rules of surrender and allow the members of her husband's family to treat her limited estate as part of the joint property belonging to the said family. The property has to devolve on the next reversioner. Tn the case of her-self-acquired and separate property which will now include the property that comes into her hands under Section 14 of the Hindu Succession Act. she no doubt has the complete power of disposal. The question however is whether that power entitles her to blend her property with the joint property of the family and walk out of it, not only to her own dies-advantages but also to the dies-advantage of her own heirs. The power may still be there and she can very well do so by making a gift of that property or by surrendering it in some other way. Not being a co-parcener, she cannot exercise the rights of claiming to be one. The right to blend is the right which a co-parcener alone can exercise and he is not a co-parcener.
(39) In Goli Eswariah v. Commissioner of Gift Tax, A.P. : 76ITR675(SC) the question came up before the Supreme Court, although the person who threw his self-acquired property into the common stock of joint family property was once again a male co-parcener. The question had arisen whether his doing so attracted the application of Section 2, clause (xxiv), sub-clause (d) under the Gift Tax, Act 1958 and thereforee amounted to a gift as envisaged in Section 2(xii) and Section 4(a) of the said Act. It was said : 'It must be remembered that a Hindu family is not a creature of a contract. As observed by this court in Mallesappa Bendeppa Desai v. Desai Mallan pa (2). the doctrine of throwing into the common stock inevitably postulates that the owner of separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be separate property and acquires the characteristics of joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention, by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property in the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is .i doctrine peculiar to the Mitakshara school of Hindu Law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter Vii of the Transfer of Property Act. in such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises'.
(40) This again lends support to the view that it is only the action of a co-parcener which can be characterised as blending his property with the coparcenary property.
(41) The next question which according to the Revenue is that the process of conversion of personal property into the joint family property is not possible unless the joint family owns such property. It is an admitted proposition before us that the assessed's joint family did not own any property as such. The contention urged on behalf of the Revenue is based on the judgment of the Supreme Court in Mallesappa's case where it was said that the basis of the doctrine of blending was the existence of co-parcenary and coparcenary property as well as the existence of the separate property of a co-parcener. The decision in that case obviously took into account the fact that the jointly family in question in that case owned property and thereforee the situation there was slightly different.
(42) Reading the judgment as a whole one does not find the clear state- ment of law therein as suggested by the Revenue. There is also no mention of the string of unanimous authorities of the various High Courts to which we shall hereafter refer and which clearly lay down that a member of the joint family can impress his personal property with the character of the joint property and thatthe existence of a nucleus of joint family property is not at all necessary for that purpose. The passage in the judgment relied upon by the counsel for the Revenue is not a statement of the law on the point. Where the joint family owns the nucleus of joint family property the process of throwing the property of a co-parcener into title common stock will be called 'blending' but where there is no joint family property the process may be called the impressing of one's personal property with joint family character as the use of term 'blending' may not be very appropriate in such a case.
(43) The term 'blending' postulates fusion of one's property with the other. That however does not mean that the existence of joint family property is an essential condition for impressing one's personal property with the character of joint family property.
(44) The Tribunal has referred to a large number of cases of which the following may be cited as illustrating the point.
(45) It was as far back as in 1890 in the case of Krishnaji Mahadev Mahajaft and another v. Moro Mahadev Mahajan awl another I.L.R. 15 Bom 32 were it was held:
IN short for self-acquisition to be thrown into the common stock it is not necessary that there should be a nucleus of commercial property.
A Division Bench of Madras High Court also took the same view in R. Suhramania lyer v. Commissioner of Income Tax, Madra.' : 28ITR352(Mad) , where it was said that there is nothing to prevent the father from impressing any self-acquired property belonging to him with the character of joint family property even if there is no ancestral nucleus or any other joint family property.
(46) Following the aforesaid rolling of Madras High Court a Division Bench of Andhra Pradesh High Court also took the same view in Duggirala Sadasiva Vittal v, Bolla Rattain and others AIR 1958 A. P. 145. A Division Bench of Bombay High Court re- affirmed this view in the case of Damodar Krishnaji Nirgude v. Commissioner of Income-tax, Bombay South : 46ITR1252(Bom) in which it was said :
NOW in our view, possession of ancestral or joint family property under the Hindu Law is not a condition precedent for enabling a coparcener to impress his self-acquired property with the character of a coparcenary property, what constitutes impressing self-acquired property with the character of a coparcenary property is the unequivocal act on the part of the coparcener to abandon his individual exclusive right in the property in favor of the coparcenary. It is a well-known principle of Hindu Law that a coparcenary can exist even though it may own no coparcenary property. When a coparcenary can exist without possessing or owning coparcenary property, there is no reason why a coparcener could not be in a position to abandon his rights in his self acquired property in favor of the coparcenary. It is Ins right under the Hindu Law on the exercise of which the property assumes the character of the co-parcenary property.
(47) In view of the unanimity of the views of different High Courts on this point we are prepared to hold that the holding of property by the joint family is not at all necessary to enable a co-parcener to impress his personal property with the character of the joint famliy.
(48) In the present case, it is not disputed that the declaration made by the assessed is otherwise complete. But since she is not a coparcener, the declaration made by her is of no avail. The tax levied on her property as the income of the individual and not of the family was thereforee correctly made by the Incometax Officer and the Tribunal is not right in holding that the income of Rs. 21,544.00 was the income of the undivided Hindu Family. The question is thereforee answered in favor of the Revenue and against the assessed. The Commissioner will also have his costs. Counsel's fee Rs. 300.00.