1. This appeal is against an order made in execution of the decree in O.S. No. 10 of 1924 on the file of the Sub-ordinate Judge's Court, Cuddalore. The subject of the petition is a house No. 40, South Car Street, Chidambaram. Mythili, the decree-holder, was entitled under the decree to recover Rs. 5,800 from her husband Mahadevan, the judgment-debtor. To realize this sum she attached the aforesaid house as belonging to her husband. Janaki Ammal, mother of Mahadevan, filed a claim praying that the attachment should be raised on the ground that the house was her own. This claim was tried by the learned District Judge, South Arcot, who held that the house did belong to Janaki. Hence this appeal by Mythili, the decree-holder. The learned District Judge chiefly addressed himself to the question whether the purchase money for the house which was purchased in Janaki's name came out of Mahadevan's estate or was furnished by Janaki. He held that, apart from the oral evidence of Janaki, there was no evidence that the purchase money was paid by Janaki out of her own funds but that, on the other hand, there was evidence that it did not come out of the estate of Mahadevan. The points chiefly urged by learned Counsel for the appellant are : (1) that the learned Judge did not appreciate the evidence properly and (2) that he shut out evidence which was produced by Mythili which if taken into account materially helped her case.
2. The circumstances attending the purchase of this house and the payment of the purchase money are as follows : In February 1918 when the house was purchased the parties lived at Cuddalore. Janaki had been left a widow in 1913. Her husband had left a large estate estimated to be worth two lakhs which devolved on his son Mahadevan, then aged 13. Janaki managed this estate on his behalf. In February 1918 this house at Chidambaram was conveyed to Janaki for Rs. 6750, the bulk of the consideration being the discharge of a mortgage on the house, for Rs. 6350. In April 1918 Mahadevan came of age. In the latter half of 1918 and the first half of 1919 repairs to the extent of about Rs. 1800 were done to the house and on 14th June 1919 the mortgagee, a vakil living in Madras, was paid Rs. 7100 in full discharge of his mortgage. Some little while before that, the family consisting of Janaki, her son Mahadevan and the latter's wife Mythili had moved to Chidambaram and taken up their abode in the suit house.
3. The argument now advanced on appeal is that the learned Judge should have held that the cost of repairing the house in 1918, 1919 and the money for the discharge of the mortgage paid on 14th June 1919 and the balance of the consideration for the purchase, namely Rs. 400, which was paid on 1st June 1921 all came out of the funds of Mahadevan's estate. And that from this the learned Judge should have inferred that the house was purchased benami for Mahadevan. Account books relating to her husband's estate for the relevant period were filed as exhibits by the appellant. Expenditure on the repairs to the house are found in these accounts and certain other entries are relied upon as relating to the payment of consideration for the sale. The learned District Judge held that the account books were not such regularly maintained accounts that the entries by themselves can be taken as prima facie proof of the expenditure. One of the questions now raised and which we have to decide in this appeal is whether the learned District Judge was wrong in not accepting the evidence furnished by the account, books. Again, the appellant sought to exhibit certain income-tax returns made by Janaki on behalf of Mahadevan, in which mention is made of the house. The learned District Judge rejected these returns. It is not objected that he was wrong in doing so and that these returns are powerful evidence in support of the appellant's case.
4. Before discussing these points in detail, we observe that the conduct of the parties is inconsistent with the ownership of the house being in the appellant's husband. Appellant and her husband lived in this house along with the petitioner till nearly the end of 1920. Then Mahadevan fell out with his mother. He and his wife removed to Gavrapet, four miles away, and lived in. the ancestral house there. Janaki continued to live in the house No. 40, South Car Street, Chidambaram, paying the Municipal taxes-and appearing to the outside world as the owner. Mention was made of the house in the course of the litigation which ensued between Mahadevan and his mother and between Mahadevan and his wife. At the end of 1920 he had charged his mother with misappropriating large funds belonging to his estate during her management between 1913 and 1918, and with failing to render to him accounts of the estate when she had handed over the estate to him. She replied at once repudiating these charges. Nothing came of these notices and counter notices however and they are not relevant here except in so far as the house in Chidambaram is not mentioned in them. Fifteen months later, in March 1922 Janaki applied to Mahadevan for separate maintenance and in April 1923 she filed a suit to obtain separate maintenance. In her plaint she described herself as living at No. 40 South Car Street, Chidambaram and stated that she made no claim to be provided with a residence as she had a house of her own. Mahadevan in his written statement dated 10th November 1923 declared that this was a gross lie. The house has been purchased in plaintiff's name and improved subsequently with moneys belonging to this defendant and for his benefit. The plaintiff has only a right to reside therein.
5. Here for the first time the ownership of the house was put directly in issue. Nevertheless, in the compromise by which the suit was ended in August 1924 neither the title to the house, nor Janaki's right to reside in it during her lifetime was mentioned. At the same time as he was defending this suit against his mother, Mahadevan was also engaged in litigation with his wife, the present appellant. We have seen how they left Chidambaram and settled in Gavrapet in the latter half of 1920. In March 1921 appellant ran away but later was reconciled, and a child was born. In August 1923, she again left Mahadevan and in January 1924 she filed a suit for separate maintenance. Referring to the house in Chidambaram she stated in para. 5 of her plaint that defendant 1's mother purchased the house in 'her own name with family funds in 1918.' This of course is not strictly accurate since no money was paid for the house in 1918. In a later paragraph describing the quarrel of 1920 she said, defendant 1's mother became thoroughly disgusted with him and asked him to leave the house which was her own and not to enter it any more. And in the long list of her husband's properties on which in this suit appellant claimed that her maintenance should be charged, appellant did not include this house in Chidambaram. It is on foot of the decree in this suit that the respondent has now attached the house. In this same year, 1924, Mahadevan filed a suit against the appellant for restitution of conjugal rights. In December 1924 appellant filed a written statement alleging that she had left her husband on account of his gross and continued cruelty. Answering the charge that her own father was responsible for the estrangement between Mahadevan and his mother and referring more particularly to the quarrel of 1920 she said:
After some time the plaintiff's mother became thoroughly disgusted with his low habits and drink and other vices, and asked him to leave her house at Chidambaram. That was how the plaintiff separated from his mother.
6. Appellant is not of course by these statements estopped from setting up her husband as the owner of the house. Nevertheless having made them it is a weakness in her case that she has not gone into the witness box to explain what has caused her to change her opinion as to the ownership of the house. Coming now to the main argument advanced by learned Counsel for the appellant there is first the argument which is based on the accounts. The accounts of Mahadevan's estate show (i) that money of his estate was used to buy the stamp paper for Ex. A by which the house was purchased by Janaki in February 1918, (ii) that money of the estate was spent on effecting repairs to the house between February 1918 and June 1919 and (iii) that the 'grahapravesham' ceremony was performed at the cost of the estate. Taking these entries as a correct representation of the facts they do not by themselves indicate that the house belonged to Mahadevan. In the first place Mahadevan was of age when this expenditure was incurred. It is stated that his mother retained control of his estate till June 1920. But that is not the same thing as saying that this expenditure was incurred without his knowledge and approval nor can it be alleged as a strange or unusual thing that a house the property of his mother was put into a state of good repair at his expense. In the second place there is the fact that at this time the estate was indebted to Janakiammal. She had been left a legacy of Rs. 5000 under the will of her husband. Of this she had drawn only Rs. 3000 from the estate. And see the compromise decree in her suit for maintenance. Therein it is stated - so late as August 1924 - that some money was still due to her under the will and for jewels. (After examining certain entries his Lordship concluded as follows.) Our conclusion therefore is that the learned District Judge was correct in holding that the accounts of the estate do not prove that the money paid as consideration for the purchase of the house came out of the estate of Mahadevan, husband of the appellant.
7. The only other point which we have to decide arises on the contention of learned Counsel for the appellant that the learned District Judge was wrong in shutting out the income-tax returns filed by Janaki when she was in control of Mahadevan's estate. The original returns are of course in the office of the Income-tax authorities. Their contents were sought to be proved by certified copies. The contention of learned Counsel is, that in these returns, Janaki has made statements about this house, inconsistent with her present claim to be the owner of it. Now, what Janaki said in the return submitted to the income-tax authorities can be proved by exhibiting the returns themselves. This has not been done. And it is difficult to see how it could be done since such returns are confidential. It is the policy of the law that statements made in these returns shall not be brought up in Court against the person making them or for that matter against anyone else. But learned Counsel contends that income-tax returns can be proved by secondary evidence. As we read Section 65, Evidence Act, we do not find it possible to accede to this contention. Section 65 enumerates the cases in which the contents of a document may be proved by secondary evidence. Section 65(a) does not apply, (i) because the documents now in question are not in the possession or power of Janaki against whom they are sought to be proved, (ii) the documents are not in the possession or power of a person not subject to the process of the Court or legally bound to produce them who having been given notice to produce has refused to do so. The Income-tax Officer in whose custody the documents are, is subject to the process of the Court. He can be summoned to attend the Court although he cannot be required to produce these documents which are classed as confidential by the Income-tax Act. See Section 54 of the Act. Again, the Income-tax Officer cannot be described in the circumstances just explained as a person legally bound to produce such documents. Learned Counsel faced with this difficulty falls back on Section 65(e), Evidence Act by which secondary evidence is allowable of the contents of a public document. 'Public document' is defined in Section 74, Evidence Act, and means a document forming the act or record of the act, (1). of the Sovereign authority, (2). of Official bodies and tribunals, (3). of public officers legislative, judicial and executive. It is urged upon us that the income-tax return inasmuch as it is made in compliance with a notice issued under Section 22(2), Income-tax Act, and when made becomes the basis of an assessment made under Section 23, is therefore part of the record of the act of assessment. We do not agree in this view. Section 23 of the Act is:
If the Income-tax Officer is satisfied that a return is correct and complete he shall assess the total income of the assessee and shall determine the sum payable by him on the basis of such return.
8. We think this Section is perfectly clear. In the matter of assessing a person to tax, when does the Income-tax Officer perform an act within the meaning of Section 74, Evidence Act? The answer can only be when he assesses the income of that person and determines the sum payable. And the record of that act is the notice of demand made in the prescribed form under Section 29, Income-tax Act, in which the Income-tax Officer communicates his decision to the assessee and requires him to pay the tax. We find it quite impossible to infer from the words of the Act that the return made by the assessee is either part of the act of the Income-tax Officer; indeed, we think that such a proposition is absurd on the face of it - or that it is part of the record of the act of that officer. And indeed a reference to Section 54, Income-tax Act demonstrates that a return made by an assessee cannot possibly be part of the record of the act of the Income-tax Officer. In that Section such returns are made confidential. No Court can require any public servant to produce them before it. A public servant who discloses the contents of such returns except in certain special circumstances is punishable with imprisonment which may extend to six months and is also liable to fine. But if the return is, as now argued, a public document, anyone who happens to come into possession of a certified copy of it can produce that copy into Court, and so prove the contents of the return, thus defeating the express provisions of Section 54. From the fact that certified copies of the feturns made by Janaki have been tendered in evidence in the present case, we presume that the granting of certified copies is in certain circumstances permissible by some rule made under the Income-tax Act. Most probably they can be granted to the person who has made the return, for his own private information since that would not come under the head of disclosure under Section 54(2). But that does not mean that a third party who has, in some way, come into possession of the certified copies can use them to his own advantage. If it did, then we would be faced with the ludicrous position that the Income-tax Officer, though forbidden to disclose the contents of the returns could by furnishing certified copies facilitate such disclosure. We agree with the learned District Judge that these certified copies - they were actually marked as exhibits in the lower Court and numbered 35 and 35-A - are not admissible in evidence.
9. On the merits of the case we have been taken very carefully through the evidence by learned Counsel on both sides and we think the conclusions of the learned District Judge are correct. We would only add that it has not been shown that in February 1918 when Janaki bought this houses she had any reason to deceive her son or to act prejudicially to his interests. On the contrary, the evidence is that at that time she was much attached to him. If she had intended to buy the house for him and not for herself there was no reason whatever why she should not have bought it in his name. We dismiss this appeal with costs.