Skip to content


Nadiammai Achi and anr. Vs. Mariappa thevar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Case NumberA.A.O. No. 476 of 1946
Judge
Reported inAIR1951Mad625
ActsDebt Laws; Madras Agriculturists Relief Act, 1938 - Sections 5; Hindu Law
AppellantNadiammai Achi and anr.
RespondentMariappa thevar
Appellant AdvocateR. Gopalaswami Iyengar, Adv.
Respondent AdvocateG.R. Jagadisa Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredVenkatadri Somappa v. Venkatasami Chetti
Excerpt:
family - hindu undivided family - debt laws, section 5 and 19 of madras agriculturist relief act, 1938 and hindu law - partition took place in family - family assessed to income tax as undivided hindu family in respect of income from undivided assets - undivided assets divided - decree obtained - application for scaling down decree under section 19 - decree scaled down - appeal against order of district judge scaling down decree - appellant contended that as family assessed to income tax after partition member of family could not get the decree scaled down as section 5 applies - family divided in status prior to decree - when there has been partition court presumes complete partition - foundation for application of section 5 is that there should be undivided hindu family - section 5 has..........become divided in 1926. butt in the partition certain immovables and cash outstandings were left undivided and they were in the management of ramalinga. ramalinga and his sons became divided between 1934 and 1936. inspite of the division ramalinga continued to be in management of the assets not divided. during the lifetime of ramalinga he was assessed to income-tax in regard to the income of the property left undivided and after his death his son kayarohana was also assessed in respect of the same income. after kayarohana's death subrahmanya was assessed in the same manner. subsequently in o. s. no. 3 of 1938, a partition suit filed in the district court of west tanjore, the undivided assets also were divided between the members of the family. the appellants obtained a decree in o. s......
Judgment:

Subba Rao, J.

1. This is an appeal against the order of the Court of the District Judge of West Tanjore scaling down the decree under Section 19 of Madras Act IV [4] of 1938. For appreciating the facts and the contentious of the parties the following genealogy may usefully be referred to.

KAYAROHANA

|

_______________________________________________

| |

Ramalinga Sabapathy

| |

________________________ Kasinatha Thevar.

| |

Kayarohana Subrahmanyam

|

Mariappa Thevar (Respondent).

The branches of Ramalinga and Sabapathi had become divided in 1926. Butt in the partition certain immovables and cash outstandings were left undivided and they were in the management of Ramalinga. Ramalinga and his sons became divided between 1934 and 1936. Inspite of the division Ramalinga continued to be in management of the assets not divided. During the lifetime of Ramalinga he was assessed to income-tax in regard to the income of the property left undivided and after his death his son Kayarohana was also assessed in respect of the same income. After Kayarohana's death Subrahmanya was assessed in the same manner. Subsequently in O. S. No. 3 of 1938, a partition suit filed in the District Court of West Tanjore, the undivided assets also were divided between the members of the family. The appellants obtained a decree in O. S. no. 5 of 1934 against Mariappa Thevar and others. Mariappa filed I. A. No. 299 of 1944 for scaling down the decree under Section 19 of Madras Act IV [4] of 1938. The decree-holders relied upon Section 5 of Act IV [4] of 1938 and contended that as the family was assessed to income-tax the petitioner being a member of the family could not get the decree scaled down. The learned Judge held that at the time when Kayarohana was assessed to income-tax as representing the undivided Hindu family the family was really disrupted and, therefore, Section S had no application. In that view he scaled down the decree as prayed for. The decree-holders preferred the above appeal. The learned counsel for the appellants argued that Section 6, Madras Agriculturists' Relief Act, 1938 directly applies to the facts of this case. Section 5 reads as follows:

'Where an undivided Hindu family other than a martimakkattayam or aliyasanthana tarwad or tavazhi is assessed to the taxes specified in provisos (A), (B) and (C) to Section 8 (ii), or falls within the category, of persons specified in proviso (D) to the same section, no person who was a member of the family on the 1st October 1937 shall be deemed to be an agriculturist for the purposes of this Act except section 13.'

2. The first contention of the learned advocate is that Section 5 applies whether the Hindu family is joint or divided in status. He argued that the Legislature intentionally used the words 'undivided Hindu family' in contradistinction to the well-known concept 'the joint Hindu family' under the Hindu law. He re-inforced his argument by referring us to Section 25A, Income-tax Act. This argument not only ignores the principle underlying Section 5 but also the meaning of the express words used therein. Under Hindu law, a Hindu family is either undivided or divided and a division may be by metes and bounds or in status. To describe a divided family either in status or by metes and bounds as an undivided Hindu family is a contradiction in terms. Further under the Act this disqualification is imposed upon a member of an undivided Hindu family as in law it is treated as one entity and a member thereof so long as he continues to be a member of the family has no separate or independent rights de hors the family towards third parties. This conception of Hindu law is recognised by Section 3 (i) of the Act where a person is defined as including an undivided Hindu family. A decision of a Bench of this Court in Venkatakutumba Rao v. Veerabhadrudu : (1943)1MLJ211 , supports this construction of the section. In that case though a debtor had become divided from his uncle as the result of a partition suit decreed on 30-3-1936, the uncle was assessed to income-tax in ignorance of such division as Manager of a joint Hindu family for 1936-37. The learned Judges held :

'That under Madras Act IV [4] of 1988, the family so assessed cannot be deemed to be & person after 30-3-1936, and the divided member .... is not disentitled to the benefits of Madras Act IV [4] of 1938.'

3. It is suggested that there might have been a division by metes and bounds in that case, but we have called for the records in that appeal and satisfied ourselves that the question arose before there was any division by metes and bounds. Another decision of Wadsworth J. in Rajeswara Rao Garu v. Venkata Rayanim Garu, 54 M. L. W. 223 : A. I. R. 1941 Mad. 846 bears out the said construction. The question that arose in that case was

''whether an undivided Hindu family in Section 3 (i) of Madras Act IV [4] of 1938 covers those joint families which have re-united as well as those joint families which never separated.'

The Courts below held that the words 'undivided Hindu family' did not attract the reunited family as the word used is undivided but not joint. The learned Judge rejected that distinction and relying upon the provisions of Section 19 of the Act held that the word 'undivided' was used in the sense of joint and, therefore, the re-united family also was covered by Section 5. Wadsworth J., stated the principles at p. 224 as follows :

'The real question, therefore, is, what was the sense in which the Legislature used the words 'undivided Hindu family' in the definition of a person in Section 3 (i) of the Act. Clearly the reason for treating an undivided family as a person was not the historical origin of the family nor the future devolution of property on the death of the members of the family. The real reason for treating the family as a unit was the way in which its property is held and its obligations are incurred jointly.'

At p. 295 the learned Judge proceeds to observe:

'It seems to me that what the Legislature had in mind in treating an undivided Hindu family as a person, was the present undivided status of that family and not the historical origin of that status.'

Applying these principles we agree with the learned Judge that under Section 5 of the Act the words 'undivided Hindu family' are synonymous with the words 'joint family'. The contention based upon Section 25-A, Income-tax Act does not help the appellants. Section 25-A, Income-tax Act XI [11] of 1922 reads as follows :

'Where, at the time of making an assessment under Section 23, it is claimed by or on behalf of any member of a Hindu family hitherto (assessed as) undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied. . . . that the joint family property has been partitioned among the various members or groups of members in definite portions. ... he shall record an order to that effect.'

4. It is argued that Section 25-A contemplates a division by metes and bounds and until it is done and proved to the satisfaction of the Income-tax Officer the undivided family is liable to be assessed under the Act; and, therefore, as Section 5 refers to assessment under the Income-tax Act the words 'undivided family' used in Section 5 must be understood in the same sense as they are used in Section 25-A, Income-tax Act. This argument offends against every rule of construction. We cannot construe the words in Section 5, Madras Agriculturists' Relief Act, with reference to the provisions of the Income-tax Act. The foundation for the application of Section 5 is that there should have been an undivided Hindu family and the fact that a divided family is assessed by a fiction as an undivided Hindu family under Section 25-A of the Act cannot affect the real status of the family. We, therefore, hold that Section 5 has no application to the case of Hindu families divided in status.

5. It is next contended that in regard to some immovable properties and outstandings the family continued to be a joint Hindu family. Partition may be either total or partial. It may be open to the members of a joint family to sever an interest in respect of a part of the joint estate while retaining their status as joint family and holding the rest as the property of an undivided Hindu family. Co-parcenary may cease as to some of the properties and continue as to the rest. It is settled law that when there has been a partition the presumption is that it is a complete one as to the parties and properties. We are not satisfied on the facts before us that when the branches of Ramalinga and Sabapathy became divided in 1926 they intended to retain their joint family status in regard to some of the immoveables and cash outstandings. It is more likely that there was a severance in status in regard to the entire family property and some of the items were continued to be held jointly for convenience. The fact that they had a separate mess and lived separately and that in 1934 there was a partition inter se between Ramalinga and his three sons also indicates the same intention. In our view the appellants on whom the burden lies did not put before us sufficient material to rebut the initial presumption of law. In any view EX. p-1 the notice dated 10-5-1926 issued on behalf of T. S. Kasinatha Thevar son of Sabapathy Thevar to T. K. Ramalingam Pillai shows a clear and unambiguous declaration of the intention to divide in regard to the entire properties. It is stated in the letter :

'. . . . Therefore you are bound to divide and deliver at once a 1/3rd share at least in the family immoveable and moveable properties and outstandings which have not been divided according to the talk between you both and to pay the income derivable from the aforesaid one-third share . . . .'

We, therefore, hold on the evidence that there was a division in status among the members of the family in regard to the entire family estate.

6. It was nest contended by the learned advocate for the appellants that assuming there was a division in status when the joint family was assessed the petitioner also must be deemed to have been assessed as one of the divided members of the family and in support of his argument he relied upon the decision reported in Venkatadri Somappa v. Venkatasami Chetti : AIR1941Mad672 . That was a case of a partnership of which the person claiming relief under the Madras Agriculturists' Belief Act was a partner. The learned Judges held that

'when the income of a partnership is assessed to tax what is really assessed is the income of the individual partners and therefore the applicant had undoubtedly been subjected to income-tax....'

This decision in our view has no application to the facts of our case. There is. an essential distinction between a joint Hindu family divided in status and a partnership. In the case of a joint family divided in status the family is assessed to the income-tax not as a group of persons but as one entity, whereas a partnership would be assessed as a group of persons. This distinction in principle between the two classes of cases has been brought out succinctly in a decision reported in In re Keshar Deo Chamaria : AIR1937Cal583 . The learned Judges have held that the members of a formerly undivided Mitak-shara family after the passing of a preliminary decree for partition are not an association of individuals within the meaning of Section 3 of the Act. Whatever might be said in the case of an assessment on a group of persons it is impossible to say that, when a family whether divided or undivided is assessed as a separate legal entity, a member thereof is also assessed as one of a group of persons. We, therefore, reject this argument also. But there is another fact which really makes a decision on this point unnecessary. Under Ex. P-26 the family was assessed on 23-11-1937 for the year of assessment 1937-38 and under Ex. P-27 the family was assessed on 15-9-1938 for the year of assessment 1938-39. Section 3 (ii) (A) reads as follows:

'Provided that a person shall not be deemed to be an 'agriculturist' if he (A) has in both the financial years ending 31-3-1938 been assessed to income-tax under the Indian Income-tax Act, 1922, or under the Income-tax laws of any Indian State, or foreign Government.'

To come under this proviso the petitioner should have been assessed in both the financial years ending 31-3-1938. But in this case the respondents' father had not been assessed in the first financial year, that is, between 31-3-1936 and 1-4-1937 and therefore proviso (A) has no application to this case.

7. For the foregoing reasons, we agree with the lower Court that the respondent is an agriculturist within the meaning of the Madras Agriculturists' Relief Act and is entitled to have his debt scaled down therein. In the result the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //