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Commissioner of Income-tax, Delhi, Ajmer, Rajasthan and Madhya Bharat Vs. Dhannalal Devilal - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberCivil Ref. No. 13 of 1954
Judge
Reported inAIR1956Raj30; [1956]29ITR165(Raj)
ActsFinance Act, 1951; Hindu Law; Income-tax Act, 1922 - Sections 3; Succession Act, 1925 - Sections 25 and 26
AppellantCommissioner of Income-tax, Delhi, Ajmer, Rajasthan and Madhya Bharat
RespondentDhannalal Devilal
Appellant Advocate K.N. Rajagopal Shastri, Adv.
Respondent Advocate B.D. Ghiya, Adv.
Cases ReferredKalyanji Vithal Das v. Commissioner of Income
Excerpt:
- - so far as the first two conditions are concerned, they are satisfied in this case. if they can be said to be lineally descended from her, the third condition is not satisfied,and the assessee would not be entitled to the higher limit of exemption. in this view of the matter, a son will be a lineal descendant of the mother as well as of his grand-mother irrespective of whether the mother or the grand-mother can form a line of succession under the hindu law. lineally descended from any other living member of the family not entitled to claim partition'.this would clearly show that lineal descent is possible from female members who may not be entitled to claim partition......of an undivided hindu family, and in particular whetherfemales are also members of an undivided hindufamily. it is clear that all males who are joint are members of a hindu undivided family. sofar as females are concerned, it has been heldthat wives of male members of undivided hindufamily and unmarried daughters of male members of undivided family are also members of thehindu undivided family.in -- 'vedathanni v. commissioner of income-tax, madras', air 1932 mad 733 (sb) (a), it was held that widows entitled to maintenance are dependent members of an undivided hindu, family.5. paragraph 549 of the principles of hindu law by d. p. mulla (edn. 11) speaks of maintenance of female members of joint hindu family, and these female members are mentioned in para. 543 as the wives of male.....
Judgment:

Wanchoo, C. J.

1. This is a reference by the Appellate Tribunal under the Income-tax Act.

2. The following question has been referred to this Court for answer :

'Whether on the facts and in the circumstances of this case, the Tribunal was justified in holding that the assessee was entitled to the higher exemption limit of Rs. 7,200/- in terms of the proviso to para. A in part I of Schedule I of Section 2, Finance Act of 1951?'

3. The facts of the case are these: The assessee Messrs Dhannalal Devilal of Jaipur filed a return for the assessment year 1951-52, and claimed the benefit of the higher exemption limit as provided in para. A in part I of Schedule I of S. 2, Finance Act of 1951. The firm in question was at that time owned by two minors . named Sita Ram and Madhav who were members of an undivided Hindu family.

Further at the relevant time this family had ., two other members, namely the widowed mother and the widowed grand-mother of the two minors. The question arose whether is view of the existence of these ladies, and particularly the widowed mother, the assessee could claim the higher exemption limit of Rs. 7,200/-. The Income-tax Officer held that they could not. The appellate Assistant Commissioner, however, held that they could. Thereupon, there was an appeal before the Tribunal which agreed with the Appellate Assistant Commissioner.

The present reference has been made by the Tribunal on the application of the Commissioner of Income-tax. It came for hearing before a Division Bench of this Court. The Division Bench has referred the following question arising out of the reference by the Appellate Tribunal to a Full Bench for answer, namely,

'Whether a son or grand-son can be said to be lineal descendant of his mother or grandmother respectively within the meaning of condition (b) of Clause (1) of Part 1(A) of Schedule 1 of the Indian Finance Act (No. 23) of. 1951 which prescribes Rs. 7,200/- as an exemption limit in the case of Hindu undivided family.'

4. The relevant provision on the interpretation of which the answer to this question depends is as follows:

'The limit referred to in the above provise shall be

(i) Rs. 7,200/- in the case of every Hindu un-divided family which satisfies as at the end of the previous year either of the following conditions, namely,

(a) That it has at least two members entitled to claim partition who are not lass than 18 years of age; or

(b) that it has at least two members entitled to claim partition neither of whom is a lineal descendant of the other and both of whom are not lineally descended from any other living member of the family.....'

The first question, therefore, that arises for determination is who are the members of an undivided Hindu family, and in particular whetherfemales are also members of an undivided Hindufamily. It is clear that all males who are joint are members of a Hindu undivided family. Sofar as females are concerned, it has been heldthat wives of male members of undivided Hindufamily and unmarried daughters of male members of undivided family are also members of theHindu undivided family.

In -- 'Vedathanni v. Commissioner of Income-tax, Madras', AIR 1932 Mad 733 (SB) (A), it was held that widows entitled to maintenance are dependent members of an undivided Hindu, family.

5. Paragraph 549 of the Principles of Hindu Law by D. P. Mulla (Edn. 11) speaks of maintenance of female members of joint Hindu family, and these female members are mentioned in para. 543 as the wives of male members and widows of male members who are dead. Unmarried daughters also are mentioned as female members in para. 546. In, the --- 'Commissioner of Income-tax, Bombay Presidency v. Gomedalli Laxminarayan', AIR 1935 Bom 412 (B), it was held that where the family consisted of a single male member and his mother and wife, it was an undivided Hindu family. Rangnekar J. pointed out at page 414 that 'under the Hindu Law an undivided Hindu family is composed of (a) males and (b) females. The males are (1) those that are lineally connected in the male line,.....The female members are (1) thewife or the 'widowed wife' of a male member, and (2) maiden daughters. 'He also pointed out that' an undivided Hindu family in this sense-differs from what is called a Hindu coparcenary, which is a much narrower body including only those male members who take by birth an interest in the coparcenary property.'

6. In -- 'Kalyanji Vithal Das v. Commissioner of Income-tax, Bengal', AIR 1937 PC 36 (C), their Lordships of the Privy Council had occasion to consider this question, and made the following observations at page 38 :

'The phrase 'Hindu undivided family' is used in the statute with reference not to one-school only of Hindu Law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words 'Hindu coparcenary' -- all the more that it is not possible to say on the face of the Act that no female can be a member. The Bombay High Court, on the other hand. in 'Laxminarayan's case (B)', (already referred to), having held that the assessee, his wife and mother were a Hindu undivided family, arrived too readily at the conclusion that the income was the income of the family.'

7. It is clear, therefore, from these authorities that wives or widows of male members of fan undivided Hindu family and unmarried daughters of male members of an Undivided Hindu family are members of the family, though they may not be coparceners.

8. Now we have to see whether the assessee,which is admittedly an Hindu undivided familyconsisting of two minor sons and their mother and grand-mother, is entitled to the higher exemption limit of Rs. 7,200/- under the Finance Act of 1951. We have already set out the relevant provision in this behalf, and it is admitted between the parties that Clause (a) does not apply, as that requires that at least two members of family entitled to claim partition should not be less than 18 years of age.

It is, however, contended on behalf of the assesses that clause (b) applied and they are entitled to a higher exemption limit under that clause. Clause (b) , requires three conditions Before a higher exemption limit can be claimed, namely,

1. that the Hindu undivided family should have at least two members entitled to claim partition,

2. neither of the two members should be a lineal descendant of the other, and

3. both of them should not be lineally descended from any other living member of the family. So far as the first two conditions are concerned, they are satisfied in this case. The dispute is about the third condition, namely, whether thetwo members, who are entitled to claim partition, are lineally descended from any other living member of the family. The two members in this case are two minor brothers, and the question is whether they are lineally descended from any other living member of the family.

We have already held that widows of male members are members of a Hindu undivided family. Therefore the mother of the two minors is a member of the undivided family and is living . These two minors are her sons. Can they be said to be lineally descended from her or not? If they can be said to be lineally descended from her, the third condition is not satisfied,and the assessee would not be entitled to the higher limit of exemption. The Appellate Tribunal held that the minors were not lineal descendants of their mother, and their reasoning was given in these words:

'A son may be a descendant of the mother. A female under the Hindu Law cannot form a line of succession : The privilege is given only to a male. The two minor sons cannot be said to toe lineal descendants of the mother or the grand-mother, although they might be mere descendants' of the mother or the grand-mother.' The emphasis by the Appellate Tribunal seems to have been on the word 'lineal', and the reason why the son is not a lineal descendant of the mother is said to be the inability of the female under the Hindu Law to form a line of succession. We think however the words used in Clause (b) have to be interpreted in their natural meaning without any pre-conceived notion as to whether a Hindu female can form a line of succession. What is the difference between a 'descendant' and a 'lineal descendant'.

In Wharton's Law Lexicon (Edn. 14) 'LinealConsanguinity' is defined as that relationship 'which subsists between persons descended in aright line, as grandfather, father, son, grandson. 'Lineal Descent' is denned as the descent of an estate from ancestor to heir to a right line. Reading these two together, 'lineal descendant' means ' descendant in the right line as from father to son etc., without any deviation. In the Oxford English Dictionary Vol. III, a 'descendant' is denned as one who 'descends' or is descended from an ancestor; issue, offspring (in any degree near or remote).

The idea of right line without any deviation seems to be absent. from the Dictionary meaning of the word 'descendant'. So when the law speaks of 'lineal descendant', the intention is that a person must be descended in a right line without any deviation as from father to son, grandson, great grandson and so on. Similarly, it seems to us that the 'descent' is lineal if it goes from mother to daughter, and granddaughter, and great grand-daughter, because here also it is in a right line without any deviation.

Section 25, Indian Succession Act defines 'Lineal Consanguinity', while Section 26 defines 'Collateral Consanguinity'. Where the descent is by lineal consanguinity, one may call it a lineal descent, and the person so descending is a lineal descendant. But where the relationship is by collateral consanguinity, one may be descendant of the other, but he cannot be said to be lineally descended. That is, to our mind, the distinction between lineal descendant and descendant. It has nothing to do with the ability or otherwise of Hindu female to form a line of succession.

8. The same difference may be explained in other words. Lineal consanguinity is when two persons are connected in one straight line, whether descending or ascending, drawn from the propositus. Where the line is descending, the persons are lineal descendants. Collateral consanguinity is when two persons are connected by a descending line which is not a straight line.

Such persons may be descendants of each other, but will not be lineal descendants. In this view of the matter, a son will be a lineal descendant of the mother as well as of his grand-mother Irrespective of whether the mother or the grand-mother can form a line of succession under the Hindu Law. These notions of Hindu Law have not, in our opinion, to be imported ia interpreting the words 'lineal descendant',

10. The view that we are taking is further confirmed by the provision of the First Schedule to the Finance Act of 1955 dealing with the question of exemption. In the Finance Act of 1955, the words used are:

'lineally descended from any other living member of the family not entitled to claim partition'. ,

This would clearly show that lineal descent is possible from female members who may not be entitled to claim partition.

11. Our answer, therefore, to the questionput to us by the Division Bench is that a sonor a grand-son can be said to be a lineal descendant of his mother, or grand-mother respectively within the meaning of condition (b) ofClause (i) of part 1 (A) of Schedule 1 of the IndianFinance Act (No. 23 of 1951) which prescribesRs. 7,200/- as an exemption limit in the case ofHindu undivided family.


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