1. The two questions stated in this reference are:
1. Whether Gourikutty Amma was the legally wedded wife of the assessee so as to attract the provisions of Section 16(3) of the Indian Income-Tax Act; and
2. Whether Gourikutty Amma's four children, Yesodaran Nair, Gopalakrishnan Nair, Ramanujan Nair, and Harikumari are the legitimate children of the assessee; and the provisions of Section 16(3) of the Indian Income-Tax Act would be attracted to the income derived from the shares and properties in their names.
2. The facts leading to this reference may be shortly stated. The assessee, who has since died, was a Brahmin and a salt manufacturer in South Travancore producing and selling salt from factories owned by him, and also taken on lease. Before 1103 he had married a lady of his own caste, Lekshmi Ammal, and they had a son and a daughter. After 1103 he was living with a Nair lady Gourikutty Amma. This relation appears to have continued for a number of years and the assessee had, from this lady, three sons and a daughter. In 1118 the assessee married again a lady of his own caste, who is also called Lekshmi Ammal. After the last marriage he made a settlement in favour of the Nair lady and his issues from her, and the two questions relate to the income which the lady and the children derive out of the settlement. The deed of settlement is of November 30th, 1949, and the assessee had thereby settled Rs. 85,000 in favour of the Nair, lady and his four children from her. Gourikutty Amma was given Rs. 25,000 and each of the four children Rs. 15,000. The assessee had earlier converted his salf business into a private limited company under the name and style of Sri Sankara Allom Ltd., and had floated another company under the name of T. V. Krishnaier and Co. Ltd., to act as the Managing Agent of the private company. The trustee of the settlement in favour of the Nair lady and her children has invested the amounts allotted to them in the private company and the dividend incomes from these shares came to Rs. 12,020 for the assessment year 1950-1951. They have been included in the total income of the assessee under Section 16(3) of the Income-tax Act.
3. The claim put forward before the Income-Tax Officer was that the amounts cannot be included, because the lady was not the married wife nor the children the legitimate issue of the assessee but this objection was rejected. The Appellate Assistant Commissioner has dismissed the appeal Oft the ground that the Nair lady was a wife and her children the legitimate children of the assessee under the Hindu Marriage Validation Act. This ground has, however, not been pressed before us by the counsel of the Department. The Appellate Tribunal also found the reason for excluding the amounts from the assessment inadequate and dismissed the appeal. Thereupon an application under Section 66(1) of the Income-Tax Act was filed and the first question before us was stated to this court. Thereafter a Division Bench of this Court by an order of July 10th, 1958, further directed the Tribunal to state the second question, which concerns the children.
4. It is not disputed that, because of his earlier marriage and the wife being alive, the assessee could not have legally married the Nair lady. It is not clear where the assessee first began to live with her; but that is of no material importance. For so far as the Cochin area is concerned., Section 4 of the Cochin Nair Act, 13 of 1095, has enacted that the marriage during the continuance of a prior marriage and performance of such marriage after coming into force of the Act was void. Though the aforesaid enactment had been superseded by the Cochin Act 19 of 1113, the prohibition against such marriage, has been continued under the later enactment. The legal position of such marriages in the erstwhile Travancorc State was similar; for Section 8 (1) of Travancore Regulation II of 1100 also prohibited them. It is clear therefore, that relation between the assessee and Gonrikutty Aama was not that of husband and lawful wife and their children cannot therefore be legitimate.
5. The question is how far the income from money donated to such persons could he held as covered Section 16(3) of the Income-tax Act. At this stage it would be useful to state the relevant parts of the sub-section under which they have been included in assessee's income. Section 16(3)(a)(iii) and (iv) reads as follows :
'In computing the total income of any individual for the purpose of assessment, these shall be Included:
'(a) So much of the income of a wife or minor child of 'such individual as arises directly Or indirectly-
X X X X X X x
(iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration, or in connection with an agreement to live apart; or
(iv) from assets transferred directly or indirectly to the minor child, not being a married daughter, by such individual otherwise than for adequate consideration;'.
x x x x x x
The case for the assessee is that the word 'wife' In the provision means the person whom the asnessee has legally wedded and 'child' who has been born of his legal wife. In other words the argument is that income of a person, who is not assessee's lawful wife, and children, who are not legitimate should not be held as covered by the provision. In this connection the Counsel for the assessee has relied on Commr. of Income-tax v. Rajasundaram, AIR 1950 Mad 480. There the assesses had two minor sons, one of whom was legitimate and the other illegitimate. Both were admitted to the benefits of a partnership and the partnership itself was registered. The Taxing Officer had included in the assessment Rs. 7236, which was the share income of the minor illegitimate son of the assessee in the partnership under Section 16(3)(ii) of the Income-tax Act; but on reference to the Madras High Court, Satyanarayana Rao. J., found the inclusion to be incorrect. He held that the word 'child' prima facie means a legitimate child and therefore the income of the other child alone could be included.
Viswanatha Sastri, T. agreed with him and ho also held that the word 'prima facie' means legitimate child subject to different construction having regard to the object of the statute. In doing so the learned Judges followed the well established! English rule for construing documents that where the word is used the ordinary intention is to include only legitimate child. Indeed the rule is so firmly established that it has been extended to construction of statutes also. In this connection the Counsel for the assessee has drawn our attention, to Makein v. Makein, 1955-1 All ER 57, where an illegitimate infant was found not to be covered by the word 'dependent' in Section 1(1) of the Inheritance (Family Provision) Act, 1926 as amended by the intestates' Estate Act, 1952. We see no reason to depart from so well established a rule of interpreting the statute. Therefore the incomes derived by the Nair lady and her children would not be covered by Section 16(3)(a) (iii) and (iv) unless having regard to the object of the statute or the context the words should be construed as referring to such persons also.
Obviously taxing statutes are not concerned with enforcing moral obligations and these words On this account cannot be widely interpreted. Nor the object of preventing income from escaping assessment can he treated as sufficient to give tho word wife in Clause (iii) as wide a meaning as the department seeks to place on it. If we were to hold otherwise the aforesaid object would justify inclusion of the income from donation to a wife, who has been divorced, or income of a step-son from a similar gift. It follows that there is nothing compelling in the context to justify the word 'wife' in the clause being interpreted as inclusive of one who is not wedded. The position is similar so far as the word 'child' is concerned. Indeed the rule of interpreting the word as meaning only legitimate child has led to the legislative practice in England of defining child as including stepchild, adopted child, or illegitimate child, which practice can safely be recommended.
6. Having regard to the aforesaid observations we are of the view that the answer to the first question in the statement should be in the negative, i.e. Gourikutty Amma is not the legally wedded wife of the assessee and therefore her income is not covered by Section 18(3) of the Income-Tax Act. It further follows that her children are not legitimate and our answer to question No. 2 is that these incomes are not covered by the provisions of Section 16(3) and it would not affect them. Let the aforesaid answers be sent to the Tribunal. The assassee is entitled to costs which we fix at Rs. 100/-