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Bharatkumar Chinubhai Vs. Commissioner of Income-tax, Gujarat. Commissioner of Wealth-tax, Gujarat Ii V. Dahyabhai Chimanlal Sheth. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtGujarat High Court
Decided On
Case NumberIncome-tax Reference No. 9 of 1967
Reported in[1969]71ITR1(Guj)
AppellantBharatkumar Chinubhai
RespondentCommissioner of Income-tax, Gujarat. Commissioner of Wealth-tax, Gujarat Ii V. Dahyabhai Chimanlal S
Cases ReferredK. R. Ramchandra Rao v. Commissioner of Wealth
Excerpt:
- - ' of course, this proposition may no longer hold good in view of the provisions] of the hindu adoptions and maintenance act, 1956, under which an adoption can be made by a widow only to herself and not to her deceased husband so as to bring into existence a son in the male line and the provisions of section 14 of the hindu succession act, 1956, may also, in a case where they apply, affect its validity as held by the orissa high court in rukmini bai rathors case 3 but we are not concerned with these question on the facts of the present case and we do not, therefore, propose to express any final opinion upon them. since strong reliance was placed on this decision and its analogy was invoked, it is necessary to examine it a little more closely. ..it would not be consonance with.....p. n. bhagwati c.j. - the questions of law arising in these two references are inter-related and it would, therefore, be convenient to dispose them of by a common judgment. we will, however, for the sake of convenience, first deal with the question arising in income-tax reference no. 9 of 1967 and then proceed to examine the question arising in wealth-tax reference no. 5 of 1967.i.t. reference no. 9 of 1967 : one chinubhai, his wife, shantaben, his son, bharatkumar, who is the assessee before us, and his two unmarried daughters formed a hindu undivided family. in respect of the income o f the properties of the hindu undivided family, chinubhai was assessed during his lifetime as manager and karta and the income was assessed as income of the hindu undivided family. chinubhai died on 16th.....
Judgment:

P. N. BHAGWATI C.J. - The questions of law arising in these two references are inter-related and it would, therefore, be convenient to dispose them of by a common judgment. We will, however, for the sake of convenience, first deal with the question arising in Income-tax Reference No. 9 of 1967 and then proceed to examine the question arising in Wealth-tax Reference No. 5 of 1967.

I.T. Reference No. 9 of 1967 : One Chinubhai, his wife, Shantaben, his son, Bharatkumar, who is the assessee before us, and his two unmarried daughters formed a Hindu undivided family. In respect of the income o f the properties of the Hindu undivided family, Chinubhai was assessed during his lifetime as manager and karta and the income was assessed as income of the Hindu undivided family. Chinubhai died on 16th May, 1951, and on his death, his undivided share in then joint family properties devolved on his widow, Shantaben, under section 3(2) of the Hindu Womens Rights to Property Act, 1937, and the Hindu undivided family continued with only the assessee, his mother, Shantaben, and his two unmarried sisters as members. The income of the properties continued to be assessed as income of the Hindu undivided family as was being done hitherto until 5th November, 1958, when, according to the revenue, a change took place in the legal position owing to the death of Shantaben. The Income-tax Officer assessing the income for the assessment year 1960-61, the relevant year of account being Samvat year 2015, took the view that, on the death Shantaben, her undivided half share in the properties of the Hindu undivided family devolved by succession o n her children in equal shares under the provisions of the Hindu Succession Act, 1956, and the assessee was, therefore, entitled to two-thirds share in the said properties but, since the assessee was a sole surviving coparcener having full power of disposition over his two-thirds, share, he was the absolute owner of it and his income was liable to be assessed in his hands as his individual income. This view taken by the Income-tax Officer was affirmed in appeal by the Appellate Assistant Commissioner and the Tribunal and, no reference having been sought by the assessee, the assessment became final so far as the assessment year 1960-61 was concerned. The same view was taken by the Income-tax Officer also in the next assessment year 1961-62 and the Wealth-tax Officer assessing the net wealth of the assessee for the assessment year 1961-62 also adopted the same view and included the two-thirds share in the properties in the individual assessment of the assessee to wealth-tax. The assessee challenged both the assessments and contended that the properties continued to belong to the undivided Hindu family of which the present members were the assessee and his two unmarried sisters and the assessee was, therefore, liable to be assessed as the manager and karta of the Hindu undivided family both in respect of wealth-tax and income-tax and no part of the properties or income was liable to be assessed in the hands of the assessee as his individual property or income. But this contention was rejected by the Appellate Assistant Commissioner in the appeals preferred to him and further appeals to the Tribunal also proved futile. The assessee thereupon applied for a reference in each of the two appeals, one in respect of wealth-tax assessment and the other in respect of income-tax assessment, and on the applications of the assessee a common order was made by the Tribunal referring a common question of law for the opinion of this court. The question of law was in the following terms :

'Whether, on the facts and in the circumstances of the case, the assessee held 2/3rds share in the estate owned by the erstwhile Hindu undivided family, in his personal capacity ?'

Reference of a common question of law in these terms postulated - and indeed that was common ground between the parties - that, so far as the present point in dispute was concerned, there was no difference whether the matter was regarded under the Wealth-tax Act or under the Income-tax Act, for it was indisputable that if the properties continued to belong to the Hindu undivided family, even after the death of Shantaben and neither the two-thirds share nor any part of the properties continued was held by the assessee in his individual capacity, the income of the properties would be assessable as income of the Hindu undivided family and no part of it would be assessable in the hands of the assessee as his individual income.

Now it is necessary to clear the ground at the outset by pointing out that under section 3 of the Income-tax Act (here the assessment year being 1961-62 we are concerned with the old Act) as also under section 3 of the Wealth-tax Act, not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. 'The phrase Hindu undivided family', as observed by the Privy Council in Kalyanji Vithaldas v. Commissioner of Income-tax 1 'is used in the statute with reference, not to one school only of Hindu law, but to all schools,' and it would, therefore, be 'a mistake in method to begin by pasting over the wider phrase of the Act the words Hindu coparcenary'. A Hindu joint family consists of all parsons lineally descended from the common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary, on the other hand, is a much narrower body than the joint family;it includes only hose persons who acquire by birth an interest in the join t or coparcenary property, these being the sons, grandsons and great grand-sons of the holder of the joint property for the time being. There may, therefore, be a Hindu undivided family even where there is a single coparcener and if there is property belonging to the Hindu undivided family, assessment can be made on the single coparcener in the status of a Hindu undivided family. This position must now be regarded as settled, in view of the decision of the Supreme Court in Gowli Buddanna v. Commissioner of Income-tax 2.

The question then arises whether, after the death of Shantaben, the assessee and his won unmarried sisters formed a Hindu undivided family and the properties assessed to wealth-tax were the properties of that Hindu undivided family. Now it is clear from the statement of facts given above that during the lifetime of Chinubhai, there was a Hindu undivided family consisting of Chinubhai, his wife, Shantaben, his son, the assessee, and his two unmarried daughters. On the death of chinubhai, his undivided share in the joint family properties devolved on his widow, Shantaben, and the Hindu undivided family then consisted of the assessee, his mother, Shantaben, and his two unmarried sisters. It was the same Hindu undivided family of which Chinubhai when alive was a member and on the death of Shantaben, the same Hindu undivided family continued to subsist with the assessee and his two unmarried sisters as the only then existing members. The revenue did not dispute the first limb of this proposition and conceded - in our opinion, rightly -that on the death of Chinubhai the same Hindu undivided family continued to subsist but on the second limb of the proposition, a serious controversy was raised by the revenue. The revenue urged that, on the death of Shantaben, the Hindu undivided, family came to an end and the properties, therefore, ceased to be the properties of the Hindu undivided family. The assessee, no doubt, continued to be the sole surviving coparcener, said the revenue, but there being no potential mother who could in the way of nature or in the way of law bring in a new male member, there was no Hindu undivided family in existence after the death of Shantaben. The revenue relied strongly on the following observations of the Nagpur High Court which were quoted with approval by the Privy Council in Anant Bhikkappa Patil v. Shankar Ramchandra Patil 1 :

'We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add to male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member',

and urged that it was a necessary implication from these observations that when the potential mother died, the Hindu undivided family came to an end. But we do not think these observations support the implication suggested on behalf of the revenue. These observations were made in the context of the question whether on the death of the sole surviving coparcener, the joint family comes to an end and, dealing with that question, the Privy Council pointed out that :

'........... the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible',

and held that, despite the death of the sole surviving coparcener, the Hindu undivided family does not come to an end so long as there is a potential mother who can in the way of nature or law add a male member to it. The Privy Council did not lay down - and there can be no doubt as to what the Privy Council intended to say - that even where there is a coparcener, single though he be, there must be a widow - a potential mother - capable of introducing a new male member in order to have a Hindu undivided family. Such a proposition carried its own refutation, for it is a contradiction in terms to say that there is a sole surviving coparcener but he does not constitute a Hindu undivided family. The third principle formulated by the Supreme Court in paragraph 5 of the judgment in Krishnamurthi Vasudeorao Deshpande v. Dhruwaraj 1, on which reliance was placed on behalf of the revenue, also does not carry the matter any further. It merely reiterates the same principle, namely, that even after the death of the sole surviving coparcener 'a coparcenary continues to subsist so long as there is in existence a widow of a coparcener capable of bringing a son into existence by adoption' : vide also Commissioner of Income-tax v. Sarwan Kumar 2 and Rukmini Bai Rathor v. Commissioner of Wealth-tax 3, where it has been held that :

'............. even though a Hindu family may consist of only the widow of a sole coparcener and his minor unmarried daughter, the family will continue to be Hindu undivided family because the widow, being a potential mother, can always adopt a son to her deceased husband and thereby continue the line.'

Of course, this proposition may no longer hold good in view of the provisions] of the Hindu Adoptions and Maintenance Act, 1956, under which an adoption can be made by a widow only to herself and not to her deceased husband so as to bring into existence a son in the male line and the provisions of section 14 of the Hindu Succession Act, 1956, may also, in a case where they apply, affect its validity as held by the Orissa High Court in Rukmini Bai Rathors case 3 but we are not concerned with these question on the facts of the present case and we do not, therefore, propose to express any final opinion upon them. But one thing is clear that, even under the law prior to the enactment of the Hindu Adoptions and Maintenance Act 1956, and the Hindu Succession Act, 1956, the question of 'a potential mother' could arise only after the death o the sole surviving coparcener. It would, therefore, appear that, even if the assessee had died before Shantaben, the Hindu undivided family would not have come to an end but would have continued with Shantaben and the two unmarried daughters, leaving out of account the provisions of the Hindu Adoptions and Maintenance Act, 1956, and the Hindu Succession Act, 1956. A fortiori, the Hindu undivided family could not be extinct on the death of Shantaben leaving the assessee as the sole surviving coparcener. The same Hindu undivided family, of which, at one time, Chinubhai, Shantaben, the assessee and the two unmarried daughters were members, continued to subsist with two members, namely, Chinubhai and Shantaben, taken away by death. It is in this context that we have to determine whether the properties in the hands of the assessee were the joint properties of the Hindu undivided family.

The revenue leaned heavily on the decision of the Privy Council in Kalyanji Vithaldass case 1 and contended that in view of that decision the properties in the hands of the assessee must be held to his individual properties for the purpose of assessment to wealth-tax. Since strong reliance was placed on this decision and its analogy was invoked, it is necessary to examine it a little more closely. There were in this case before the Privy Council six appeals by sick partners of the firm of Messrs. Moolji Sicka & Co., namely, Moolji, Purshottam and Kalyanji, Chaturbhuj, Kanji and Sewdas. Moolji, Purshottam and Kalyanji had each a son or sons from whom he was not divided. But the income of the firm which had to be assessed to super-tax was the separate income of each these partners. Chaturbhui had a wife and daughter but no son and the income was his separate property. Kanji and Sewdas, sons of Moolji, were married men but neither had a son : they received by gift from Moolji their respective interest in the firm and for the purpose of the case it was assumed that the interest was ancestral property in which, if he had a son, the son would have taken an interest by birth. But no son having been born, the interest of Kanji and Sewdas in the property was not diminished or qualified. The question was whether the existence of a wife or of a wife and a daughter made it income of the Hindu undivided family rather than the income of the individual partner. The Privy Council held that, though the income was from an ancestral source, the fact that each partner had a wife or daughter did not make that income from ancestral source income of the Hindu undivided family of the partner, his wife and daughter. The Privy Council said :

'In an extra legal sense,...... ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of the Hindu law it belongs, save in certain circumstances, to the family as distinct from the individual..... it would not be consonance with ordinary notions or with a correct interpretation of the law of the Mitakshra, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of his having a wife and daughter'.

The Privy Council pointed out that the wife and daughter of a Hindu are entitled to be maintained out of his separate property as well as out of property in which he has coparcenery interest 'but mere existence of a wife or daughter does not make ancestral property joint'. There must be some circumstance or event which makes property received by an assessee from his father joint property of a Hindu undivided family. The property being originally not joint family property when received by the assessee, the question has to be asked : has the property acquired the character of joint family property has it become property of a Hindu undivided family And according to the Privy Council it does not become the property of a Hindu undivided family merely by reason of the existence of a wife or daughter. Property received by the assessee from his father, whether by gift or by succession, is, therefore, nor assessable as property of a Hindu undivided family merely because the assessee has a wife or daughter entitled to be maintained under Hindu law. If the assessee besets or adopts a son, the son would acquire an interest in the property by birth and the property would then joint property of a Hindu undivided family but until then, the property would be assessable in the hands of the assessee as his individual property.

Different considerations, however, apply where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case would be : does the property retain the character of joint family property or has it shed the character of joint family property and become the absolute property of the single coparcener It would be the reverse of the question in the previous class of cases represented by the Privy Council decision in Kalyanjis case and on the answer to it would depend the decision of the question whether the property is liable to be assessed in the hands of the single coparcener as his individual property is liable to be assessed in the hands of the single coparcener as his individual property or as the property of a Hindu undivided family. This class of cases is illustrated by the decision of the Bombay High Court in Commissioner of Income-tax v. Gomedalli Lakshminarayan. In that case the property was ancestral in the hands of the father and the son had acquired it interest by birth. There was a subsisting Hindu undivided family during the lifetime of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received form the property was liable to super-tax as the income of the Hindu undivided family in the hands on the son who was the sole surviving male member of the Hindu undivided family in the year of assessment. The reasoning on which the decision proceeded was that the property from which income accrued originally belonged to a Hindu undivided family and on the death of the father it did not cease to be property of the Hindu undivided family but continued to belong to that Hindu undivided family and its income in the hands of the son was, therefore, assessable as income of the Hindu undivided family. It would be apparent that there was a clear distinction between the facts in Gomedallis case and the facts in Kalyanjis case, which had a vital bearing on the issue falling to be determined but this distinction was not noticed when the Privy council observed in Kalyanjis case that the Bombay High Court 'arrived too readily at the conclusion that the income was the income of the family'. When Gomedallis case was carried in appeal to the Privy Council, the Board once against failed to notice the distinction in the facts and erroneously taking the view that the facts of the case were not in material respects different from the facts in Kalyanjis case wrongly reversed the decision of the Bombay High Court and held that the answer to the question referred should be that :

'........... the income received by right of survivourship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax............' (Commissioner of Income-tax v. A. P. Swamy Gomedalli).

The decision of the Privy Council in Attorney-General of Ceylon v. AR. Arunachalam Chettiar, a case arising from Ceylon, also falls within the same class of case as Gomedallis case. On Arunachalam-Nattukottai Chettiar -and his son constituted a join t family governed by the Mitakshara school of Hindu law. the father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern countries. the undivided son died in 1934 and Arunachalam became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938 came into operation in Ceylon. By section 73 of the Ordinance it was provided that property passing on the death of a member of a Hindu undivided family was exempt form payment of estate duty. On a claim to estate duty in respect of Arunachalams claim in Ceylon, the Privy council held that Arunachalam was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which continuity was preserved after Arunachalams death by adoptions made by the widows of the family, and, since the undivided Hindu family thus continued to persist, the property in the hands of Arunachalam as a single coparcener was the property of the Hindu undivided family. the Privy Council pointed out :

'............. though it may be correct to speak of him as the owner, yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge of maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. Once again their Lordships quote from the judgment of Grecian J. : To my mind it would make a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener. To this it may be added that it would not appear reasonable to import to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners.'

The Privy Council rejected the contention of the revenue that, since a single coparcener has full power of alienation over the property held by him, he must be held to be the absolute owner and observed that the fact that he possesses a large power of alienation.

'........... appears to their Lordships to be an irrelevant consideration. Let it be assumed that his power of alienation is unassessable; that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it and, if he does not alienate it, that is what it remains......... It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family.'

Here also, the basis of the decision was that the property which was the joint property of the Hindu undivided family did not cease to be so because of the 'temporary reduction of the coparcenary unit to a single individual'; the character of the property, namely, that it was the joint property of a Hindu undivided family, remained the same.

The same principle was also applied by the Supreme Court in Gowli Buddannas case. In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a Hindu undivided family. Buddappa died and after his death the question arise whether the income of the properties held by Buddanna as the sold surviving coparcener was assessable as the individual income of Buddanna or as the income of the Hindu undivided family. the Supreme Court, after examination the decisions of the Privy Council in Kalyanjis case and Gomedallis case, pointed out there was a clear distinction between the facts of two classes of cases, one represented by Kalyanjis case and the other represented by Gomedallis case and expressed its disapproval of the Privy Council decision in Gomedallis case in that it failed to recognise and give effect to this distinction :

'It may however be recalled that in Kalyanji Vithaldass case the income assessed to tax belonged separately to four out of six partners : of the remaining two it was from an ancestral source, but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayans case, the property form which income accrued belonged to a Hindu undivided family and the effect of the death of the father, who was a manager, was merely to invest the rights of a manager upon the son. The income form the property was and continued to remain the income of the undivided family. This distinction, which had a vital bearing on the issue falling to be determined, was not given effect to by the Judicial committee in A.P. Swamy Gomedallis case.'

The Supreme Court then referred to the decision of the Privy Council in Arunachalams case as 'case in point' and concluded by saying :

'Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by Buddanna alone, but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family.'

Since the property which came into the hands of Buddanna as the sole surviving coparcener was originally joint family property, the question asked was whether it ceased to belong to the joint family merely because the joint family was represented by a single coparcener and the answer was that it did not cease to belong to the joint family and the income form it was, therefore, assessable in the hands if Buddanna as income of the Hindu undivided family.

The question is, in which class of cases does the present case fall : does it fall within the class of cases represented by Kalyanjis case or does it fall within the class of cases represented by Gomedallis case, Arunachalams case and Gowli Buddannas case. we are clearly of the view that it falls within the latter class of cases. The properties sought to be taxed originally belonged to a Hindu undivided family and on the deaths of Chinubhai and Shantaben, the same undivided Hindu family continued to subsist with the assessee and his two unmarried sisters as members and the properties also, therefore, continued to belong to that Hindu undivided family. Nothing transpired to convert the character of the properties from joint properties belonging to a Hindu undivided family into the absolute properties of the assessee. the properties were, therefore, liable to be assessed in the hands of the assessee as properties of a Hindu undivided family and income received from them was also liable to be taxed in the hands of the assessee as income of the Hindu undivided family. Our answer to the question referred to us for our opinion is, therefore, in the negative. the commissioner will pay the costs of the reference to the assessee.

Wealth-tax Reference No. 5 of 1967. - One Dahyabhai Chimanlal Sheth, who is the assessee before us, and his brother formed a Hindu undivided family. there was a partition between the assessee and his brother some time prior to Samvat Year 2014 - the exact point of time when the partition took place does not appear form the record and is not material for our purpose - and on such partition certain properties belonging to the Hindu undivided family came to the share of the assessee. The assessee was married but had no son at the date of the partition or at any subsequent time up to the relevant valuation date and the family of the assessee consisted only of himself and his wife. The assessee, in the course of his assessment to wealth-tax for the assessment years 1960-61, 1961-62 and 1962-63, claimed that the properties which he had received on partition were liable to be assessed in his hands as properties of a Hindu undivided family and they should not be included in his individual assessment, but this claim was rejected by the revenue and the matter not having been carried further in appeal or by way of reference, the assessment for the assessment years 1960-61, 1961-62 and 1962-63 became final. When the time came for filing a return for assessment to wealth-tax for the assessment year 1963-64, for which the relevant valuation date was Aso Vad Amas, Samvat Year 2018, the assessee submitted a return of his net wealth in the status of an individual and he was accordingly assessed to wealth tax on the basis that the properties received by him on partition were his individual properties. the assessee, however, preferred an appeal to the appellate Assistant Commissioner and before the Appellate Assistant Commissioner he raised a contention that the properties received by him on partition were properties of a Hindu undivided family and were no liable to be included in his individual assessment. the Appellate Assistant Commissioner, relying on the decision of the Privy Council in Kalyanjis case, held that, since the family of the assessee consisted only of himself and his wife, the properties received by the assessee on partition were rightly treated as hid individual properties. the assessee thereupon carried the matter further in appeal to the Tribunal. By the time the appeal came up for hearing before the Tribunal, the supreme Court had given its decision in Gowli Buddannas case, and the Tribunal take in the view that the case before it was directly governed by the decision of the Supreme Court in Gowli Buddannas case, held that the properties received by the assess on partition belonged to a Hindu undivided family and were not liable to be included in his individual assessment to wealth-tax. This view taken by the Tribunal is challenged before us in the present reference at the instance of the Commissioner.

Before we proceed to discuss the merits of the question arising on the reference, it is necessary at the outset to refer to the decision of the supreme court in T. S. Srinivasan v. Commissioner of Income-tax,. This decision was strongly relied upon by the revenue and it was contended that this decision clearly laid down, implicit if not explicitly, that property received by a coparcener on partition cannot be regarded as property of a Hindu undivided family if he has merely a wife or daughter and no son. Now if this contention is well-founded, no further inquiry would be necessary and the question referred to us would straight away have to be answered in favour of the revenue. We must, therefore, first examine this decision and see what is the ratio it lays down. The appellants who was a member of a Hindu undivided family with his father and brothers received certain shares as a result of a partial partition of properties belonging to the Hindu undivided family and with these shares as nucleus he acquired house properties, shares and deposits. His first son was born on 11th December, 1952, and it was common ground that the conception of the child must have taken place some time in March, 1952. For the assessment year 1953-54, the relevant accounting year being the financial year 1st April, 1952, to 31st March, 1953, the appellant claimed that the income form these assets should be assessed in the hands of the Hindu undivided family consisting of himself and his sons which, according to him, had come into existence in or about March, 1952, when the son was conceived. the Income-tax Officer recognised the Hindu undivided family only from the date of birth of the son, namely, 11th December, 1952, and assessed the income till 11th December, 1952, in the hands of the appellants as an individual. the Appellate Assistant Commissioner upheld this view and the assessee also failed before the Tribunal. The assessee thereupon carried the matter by was of reference to the High Court of Madras. the same contention was raised before the High Court, namely, that the Hindu undivided family came into existence in or about March, 1952 when the son was conceived and that the assessee could not, therefore, be assessed in his status as an individual for any part of the relevant account year. this contention was negatived by the Madras court in a decision in T. S. Srinivasan v. Commissioner in Income-tax. The assessee appealed to the Supreme court against the decision of the Madras High Court and before the supreme Court also the contention of the assessee followed the same lines. The assessee invoked the doctrine of Hindu law that a son conceived is in the same position as a son actually in existence but the Supreme court negatived the applicability of this doctrine in a question under the Income-tax Act and held that the Hindu undivided family, therefore, did not come into existence on the conception of the son as claimed by the assessee but came into being when the son was actually born. Now it is no doubt true that this decision of the Supreme Court recognised the existence of the in undivided family from the date of the birth of the son and it might, therefore, be suggested that by necessary implication this decision must be taken to have decided that there could be no Hindu undivided family prior to the date of the birth of the son. But we do not think any such implication can be raised from this decision. the case of the assessee throughout the course of the proceedings was that the Hindu undivided family came into existence for the first time in or about March, 1952, when the some was conceived and it was not his case at any time that a Hindu undivided family was in existence prior to the conception of the son. As a matter of fact it was common ground between the parties that there was no Hindu undivided family in existence prior to the conception of the son. The only dispute was whether the Hind undivided family came into existence for the first time when the son was conceived as claimed by the assessee or it came into being when the son was born as claimed by the revenue. The assessee relied doctrine on the that a son conceived is in the same positions a son born and pleaded for its applicability under the Income-tax Act while the revenue contended that this doctrine was inapplicable and could not be invoked by the assessee. That was the only question raised before the Supreme Court which the Supreme Court was called upon to decide and which in fact it decided. The question whether there was, in any event, even without a son conceived or born, a Hindu undivided family consisting of the assessee and his wife and the properties received on partition belong to that Hindu undivided family was neither raised nor argued before the Supreme Court and the Supreme Court had no occasion to consider it. Nothing said by the Supreme Court in this decision can therefore be construed as amounting to an expression of opinoin on this question and this decision cannot be regarded as an authority for the proposition that property received by a coparcener on partition does not belong to a Hindu undivided family if he has no son. There being no binding decision of the Supreme Court on the point, the question will have to be approached on principle.

Now the decided cases which we have already discussed make a distinction between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him : one, where property not originally joint family property is received by the assessee and the question has to be asked whether it has acquired the character of joint family property in the hands of the assessee and the other, where property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it retains the character of joint family property in the hands s of the assessee or is converted into absolute property of the assessee. The frist class of cases is represented by Kalyanjis case while the second class of cases is illustrated by Gomedallis case, Arunachalams case and Gowli Buddannas case. The question is, in which class of cases does the present case fall ?

While examining this question it is necessary to bear in mind that the property sought to be taxed in the hands of the assessee originally belonged to the Hindu undivided family consisting of the assessee, his wife, his brother and other members in the brothers branch. They were the joint family properties of that Hindu undivided family. when partition took place between the assessee and his brother, these properties came to the share of the assessee and the question is whether they ceased to bear the character of joint family properties and became the absolute properties of the assessee. Now, as pointed out by the Privy Council in Arunachalams case in the passage quoted with approval by the Supreme Court in Gowli Buddannas case.

'It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family.'

Applying this test it is clear that, though in the absence of male issue the assessee may properly be described as owner of these properties, his ownership is such that - to quote once again the words of the Privy Council in Arunachlams case - upon the adoption or birth of a son to him it would assume a different quality :

'............ it is such, too, that female members of the family........ have a right to maintenance out of it and in some circumstances to charge for maintenance upon it.'

And these are incidents which arise because the properties have been and have not ceased to be joint family properties. It is no doubt true that on partition the Hindu undivided family of the assessee, his wife, his brother and other members in the brothers branch was disrupted as between the assessee and his wife on the one hand and his brother and other members in the brothers branch on the other but the effect of the partitions so far as these properties a reconcerned was as if the brother and other members of his branch went out leaving these properties as joint properties of the Hindu undivided family of the assessee and his wife. These properties which before partition belonged to the Hindu undivided family of the assessee, his wife, his brother and other members in the brothers branch continued to belong to the Hindu undivided family of the assessee and his wife, the brother and other members of his branch having separated and relinquished their right, title and interest in these properties under the partition. The character of these properties was therefore not converted and they did not cease to be joint family properties and become the separate properties of the assessee. We must, therefore, hold that when a coparcener who has only a wife or daughter and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu undivided family of himself and his wife daughter and cannot be assessed as his individual property. Such case clearly falls within the class of cases represented by Gomediallis case, Arunachalams case and Gowli Buddannas case. We, however, wish to make it clear that our decision is confined only to a case where a coparcener who receives his share on partition has a wife or daughter. If the coparcener has no wife or daughter and is the only member of his branch, a question may well arise whether the property received by him on partition can be said to be the property of a Hindu undivided family. We are not concerned with that question since the assessee in the present case has admittedly wife and we do not, therefore, express any opinion upon it.

So much on principle. Turning now to the authorities, we find that wherever this question has arisen, the various High Courts have consistently take the same view which we are taking in the present case, though for varying reasons. the first decision to which we must refer is the decision of the Mysore High Court in Commissioner of Wealth-tax v. Basappa. The assessee and his two brothers formed a Hindu undivided family and on partition a portion of the joint family property came to the share of the assessee. The assessee was at all material times the only make member in his branch, the other members being his wife and two daughters. The question, therefore, arose whether the properties received by the assessee on partition should be considered as properties of a Hindu undivided familiar they should be rgarded as individual properties of the assessee. The Mysore High Court held, following is earlier decision in Gowli Buddannas case, which was later confirmed in appeal by the Supreme Court, that the assessee was liable to be assessed in respect of the properties received by him on partition, as karta of a Hindu undivided family and not as an individual even though his family did not include any other male member but consisted only of himself, his wife and daughters. This decision proceeded on the ground that the properties originally belonged to a Hindu undivided family and they did not cease to bear the character of joint family properties by reason of the fact that they came to be held by a single coparcener as a result of partition. That is the same ground which has found favour with us an d on which we have rested our decision.

That takes us to the decision of the Allahabad High Court in Pratap Narain v. Commissioner of Income-tax. Though there is not much discussion, this decision proceeds on the same principle as Basappas case and emphasizes that property received on partition continues to be coparcenary property and does not become the separate property of the coparcener. there is also a later decision of the Allahabad High Court reported in Tax Affairs, August, 1968, issue, at page 1, but this decision merely summarises the previous decisions on the subject and reiterates the view taken in Pratap Narains case saying :

'The preponderance of judicial authority is in support of the view that upon partition, the property retains the character of joint family property.'

The Orissa High Court in Rukmini Bai Rathors case 5 also held applying the principle in Arunachalams case 6 that the properties received by a coparcener on partition are joint family properties assessable in his hands as properties of a Hindu undividual family even where he has only a wife and an unmarried daughter and no son. The same conclusion was also reached by the Patna High Court in Panna Lal Rastogi v. Commissioner of Income-tax 7 though, for reasons which we shall presently state, we are unable to subscribe to the line of reasoning which found favour with the Patna High Court. The test applied by the Patna High Court for determining the status of the assessee was whether there was, in the case of the assessee, a potentiality of a coparcener being brought into existence either by law or by nature, that is to say, either by adoption or birth of a son. The Patna High Court seemed to derive support for this test from the decision of the Privy Council in Arunachalams case 6. But with great respect to the learned judges of the Patna High Court, we do not think this is a correct approach to the problem. In the first place, the test adopted by the Patna High Court does not find any support from the decision of the Privy Council in Arunachalams case 1. The Privy Council did undoubtedly refer to the potentiality of a coparcener being brought into existence either by law or by nature but that was in reference to the situation arising on the death o f Arunachalam who was the sole surviving coparcener. The Privy Council never said that even where there is a coparcener in existence, the potentiality of another coparcener being brought into existence either by birth or adoption of a son would make the property in the hands of that corparcener, property of a Hindu undividual family. If such a test were correct, it would equally apply in a case like Kalyanjis case2 and the property received by the assessee from his father would have to be held to be joint family property, contrary to the decision in Kalyanjis case 2. We do not think this is a correct test to be applied for the purpose of determining whether ancestral property in the hands of an assessee is the property of a Hindu undivided family. We certainly agree with the ultimate conclusion reached by the Patna High Court, but our reasons for doing so are different. We have already discussed the reasons earlier.

Before we close, we must refer to two decisions relied upon by the revenue. The first is the decision of the Punjab High Court in Parshotam Das v. Controller of Estate Duty 3. In that case there was partition between K, the father, and his three sons who were members of a Hindu undivided family and as a result of the partition certain properties went to the share of K. Ks wife did not take any sheer on partition and K was, therefore, bound to maintain her which he did until his death. On the death of K the question arose whether estate duty was payable on Ks properties in the status of an individual. Now the estate duty would be payable on Ks property as an individual. Now the estate duty would be payable Ks property as an individual if K was at the time of his death competent to dispose of the properties. The contention of the accountable parsons was that Ks wife was either a co-owner or a tenant-in-common with K in respect of the properties received by him on partition with his sons and K was, therefore, not competent to dispose of the same. This contention was negative by the Punjab High Court and the view taken by the Punjab High Court was that, as a result of the partition, K became the sole owner of the entire properties in his hands and was competent to dispose of the same and there was nothing to show that Ks wife was either a co-owner or a tenant-in-common with K in respect of the said properties. It will be seen from these facts that the only question before the Punjab High Court was as to whether K was at the time of his death competent to dispose of the properties received by him on partition with his sons. No question was raised or argued whether the properties in the hands of K were his individual properties or the properties of a Hindu undivided family consisting of himself and his wife. As a matter of fact, right up to the time of his death K had been assessed as an individual in respect of the income of these properties and Ks wife and had not objected to it. The Punjab High Court was, therefore, not called upon to consider whether the properties in the hands of K were his individual properties to the properties of a Hindu undivided family and the decision of the Punjab High Court cannot be regarded as an authority on his question. The decision of the Madras High Court in K. R. Ramchandra Rao v. Commissioner of Wealth-tax 1 was the other decision relied upon on behalf of the revenue. But this decision has clearly no application to the facts of the present case. The question there was whether a sole surviving coparcener without any female member could constitute a Hindu undivided family and the properties in his hands could be said to be properties belonging to a Hindu undivided family. That is not the question before us and, as already pointed out by us above, we do not propose to express any opinion upon it. The Supreme Court also kept this question open in Gowli Buddannas case 2.

We are, therefore, of the view that even where an assessee has only a wife or unmarried daughter and no son, the property received by him in respect of his share in the joint family properties on partition, belongs to the Hindu undivided family consisting of himself and his wife or unmarried daughter and is liable to be assessed as property of the Hindu undivided family and not as his individual property. The question referred to us must, therefore, be answered in the affirmative. The Commissioner will pay the costs of the reference to the assessee.


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