This appeal is against an order made in execution of the decree in O. S. No. 10 of 1924 on the file of the Subordinate Judges 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 realise 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 Janakis name - came out of Mahadevans 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.
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. 6,750, the bulk of the consideration being the discharge of a mortgage on the house for Rs. 6,350. 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. 1,800 were done to the house and on the 14th June 1919 the mortgagee, a Vakil living in Madras, was paid Rs. 7,100 in full discharge of his mortgage. Some little while before that the family consisting of Janaki, her son Mahadevan and the latters wife Mythili had moved to Chidambaram and taken up their abode in the suit house.
The argument now advanced on appeal is that the learned Judge should have held that the cost of repairing the house in 1918 and 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 Mahadevans estate. And that from this the learned Judge should have inferred that the house was purchased benami for Mahadevan. Account books relating to her husbands 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 now objected that he was wrong in doing so and that these returns are powerful evidence in support of the appellants case.
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 Mahadevans 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 returns 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 any one else. But learned Counsel contends that Income-tax returns can be proved by secondary evidence. As we read Section 65 of the Indian 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, because (i) the documents now in question are not in the possession or power of Janaki against whom they are sought to be proved, and (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) of the Evidence Act by which secondary evidence is allowable of the contents of a public document. 'Public document' is defined in Section 74 of the Indian Evidence Act and means a document forming the act or record of the act
(i) of the Sovereign authority,
(ii) of Official bodies and tribunals,
(iii) 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) of the 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 determine the sum payable by him on the basis of such return.'
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 of the Indian 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 on demand made in the prescribed form under section 29 of the 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 of the 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, any one 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 returns made by Janaki have been tendered in evidence in the present case, we presume that the granting of certified copies of the returns 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 XXXV and XXXV-A are not admissible in evidence