Skip to content


A. Vairavan Servai Vs. Commissioner of Agricultural Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case Nos. 359 & 360 of 1975 (Revision Nos. 73 & 74 of 1975)
Judge
Reported in[1980]124ITR557(Mad)
ActsTamil Nadu Agricultural Income Tax Act, 1955 - Sections 9(2); Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949; Hindu Marriage Act, 1955 - Sections 16; Marriage Laws (Amendment) Act, 1976 - Sections 11
AppellantA. Vairavan Servai
RespondentCommissioner of Agricultural Income-tax
Appellant AdvocateK.C. Rajappa, Adv.
Respondent AdvocateAddl. Govt. Pleader
Cases ReferredQueen v. Totley
Excerpt:
direct taxation - declaration - section 9 (2) of tamil nadu agricultural income tax act, 1955 and section 16 of hindu marriage act, 1955 - whether statutory declaration contained in amended section 16 can be imported into section 9 (2) or not - even if declaration contained in amended section 16 was imported into section 9 (2) still there will be area where children will be illegitimate to whom section will have no application - held, statute declaration contained in amended section 16 should not be invoked for construing scope of word 'child' occurring in section 9 (2). - .....to that act, the marriage would be void being bigamous, and, consequently, indrani would be an illegitimate child of the assessee ; but, on the other hand, if the marriage had taken place prior to the coming into force of that act, themarriage would have been valid and the said child would have been a legitimate child. after this court called for a finding, the commissioner, by his order dated september 20, 1979, has rendered a finding that the marriage between the assessee and neelavathi ammal took place on april 3, 1949. now, it is not in controversy before us that the date, april 3, 1949, is subsequent to the coming into force of the tamil nadu act, of 1949, already referred to and, therefore, the marriage was bigamous and hence void and consequently, indrani, the offspring of.....
Judgment:

M.M. Ismail, C.J.

1. The petitioner in both these tax revision cases is one and the same, and these cases relate to the assessment years 1972-73 and 1973-74. The petitioner is an assessee on the file of the Agrl. ITO, Pattukottai, and he has settled his properties on his three sons, four daughters, three wives, mother, an orphanage and a secondary school at Karambakkadu on March 11, 1960. Up to the assessment year 1971-72, the assessee was permitted to compound his agricultural income-tax on his total holdings of 270.12 acres of land as it stood before the abovesaid settlement of properties. The assessee filed revision petitions before the Commissioner of Agrl. I.T. against the assessment orders for the assessment years 1961-62 to 1963-64 and the Commissioner dismissed them. However, the High Court held that the Agrl. ITO was correct in clubbing the lands settled in favour of his sons, daughters and wives. But, in the present case, we are concerned with a very narrow question. The assessee had married a third wife by name Neelavathi Ammal on April 3, 1949. He has settled certain lands on the minor daughter of his by name Indrani born through the third wife, Neelavathi Ammal. The Agrl. ITO did not club the lands so settled in favour of Indrani with the lands of the assessee for the purpose of computing the total tax payable by the assessee. However, the Commissioner of Agrl. I.T. took up suo motu revision and held that Section 9(2)(a)(iv) of the Tamil Nadu Agrl. I.T. Act, 1955, is attracted to the case in question and that, therefore, the land settled by the assessee on the minor child, Indrani, is liable to be included in the lands of the assessee. Consequently, by his order dated December 16, 1974, he directed the Agrl. ITO to pass fresh orders including the land settled in the name of Indrani under Section 9(2) of the Tamil Nadu Agrl. I.T. Act. It is to revise this order that the present petition under Section 54(1) of the said Act has been filed.

2. The matter came up before a Bench consisting of Sethuraman and Balasubrahmanyan JJ. The learned judges directed the Commissioner to record a finding as to the date of marriage of the assessee with his third wife, Neelavathi Ammal. This was necessitated by the fact that though it was stated that the marriage took place in 1949, there was no material to show whether that marriage took place subsequent to the coming into force of the Tamil Nadu (Bigamy Prevention and Divorce) Act (Tamil Nadu Act 4 of 1949) or earlier to that Act. The reason for calling for such a finding was that if the marriage had taken place subsequent to that Act, the marriage would be void being bigamous, and, consequently, Indrani would be an illegitimate child of the assessee ; but, on the other hand, if the marriage had taken place prior to the coming into force of that Act, themarriage would have been valid and the said child would have been a legitimate child. After this court called for a finding, the Commissioner, by his order dated September 20, 1979, has rendered a finding that the marriage between the assessee and Neelavathi Ammal took place on April 3, 1949. Now, it is not in controversy before us that the date, April 3, 1949, is subsequent to the coming into force of the Tamil Nadu Act, of 1949, already referred to and, therefore, the marriage was bigamous and hence void and consequently, Indrani, the offspring of that marriage, is an illegitimate child of the assessee. It is as against the background of this position we have now to consider whether the Commissioner was right in including the land settled on Indrani with the lands of the assessee for the purpose of determining the agricultural income-tax payable by him under the Tamil Nadu Act V of 1955. Section 9(2) of that Act states :

' 9(2) In computing the total agricultural income of any individual for the purpose of assessment, there shall be included-

(a) so much of the agricultural income of a wife or minor child of such individual as arises directly or indirectly-

(i) from the membership of the wife in a firm of which her husband is a partner ;

(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner ;

(iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart ; or

(iv) from assets transferred directly or indirectly to the minor child not being a married daughter by such individual otherwise than for adequate consideration.'

3. The question for consideration is whether the word 'child' occurring in Sub-clause (iv) of this sub-section will take in an illegitimate child or not. Mr. K. C. Rajappa, the learned counsel for the petitioner-assessee, contends that the provisions contained in Section 9(2) of the Tamil Nadu Agrl. I.T. Act, 1955, are modelled on the provisions contained in the Indian I.T. Act, 1922, and with reference to the analogous provisions contained in the Indian I.T. Act, 1922, this court has taken the view that the word ' child ' will take in only a legitimate child and will not take in an illegitimate child. For instance, there is a decision of this court in CIT v. C. S. Rajasundaram Chetty : [1950]18ITR145(Mad) . In that case, while construing Section 16(3)(a) of the Indian I.T. Act, 1922, a Bench of this court has held that the normal connotation of the term ' child ' in the said section will be only a legitimate child when there is nothing in the context to the contrary. As a matter of fact, this court referred to the observations of Denman C.J., in the case of Queen v. Totley [1845] 7 QB 596 , to the effect :

'...the law does not contemplate illegitimacy. The proper description of a legitimate child is ' child '. '

4. It is admitted that there is no decision to the contrary and notwithstanding this construction of the word ' child ' occurring in the corresponding provision in the Indian I.T. Act, Parliament has not taken any steps to amend the Act so as to make it clear that the word ' child ' was intended to include the illegitimate child also. If so, we are unable to take a different view with regard to the word ' child ' used in Section 9(2) of the Tamil Nadu Agrl. I.T. Act. 1955, and, therefore, the word ' child ' occurring in the section, there being nothing in the context to compel us to come to a different conclusion, must mean only a legitimate child and not an illegitimate child.

5. The learned Addl. Govt. Pleader brought to our notice the amendment made to Section 16 of the Hindu Marriage Act, 1955, by Section 11 of the Marriage Laws (Amendment) Act, 1976 (Central Act 68 of 1976), and contended that by the said amendment a child, whether born before the commencement of that Act or later as a result of bigamous marriage declared to be void under the Act, will continue to be a legitimate child and not an illegitimate child. Section 16, as amended, in Sub-section (1) thereof provides :

' Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. '

6. It is clear that the provision contained in the amended Section 16(1) of the Hindu Marriage Act, 1955, is declaratory in character. Once the marriage is void in law, certainly the offspring of that marriage cannot be legitimate. However, the section, by means of this amendment, now declares that notwithstanding that a marriage is null and void under Section 11, the child shall be legitimate. The question for consideration is whether this statutory declaration contained in the amended Section 16 of the Hindu Marriage Act, 1955, can be imported into Section 9(2) of the Tamil Nadu Agrl. I.T. Act or not. We are of the opinion that there is no justification for importing that declaration into this section. The reason for this is that the Tamil Nadu Agrl. I.T. Act is applicable to all citizens irrespective of faith or religion. In this context, the observation of Viswanatha Sastri J. in the decision referred to already, namely, CIT v. C. S. Rajasundaram Chetty : [1950]18ITR145(Mad) is apposite. The learned judge stated (p. 150) :

'It must be remembered that Section 16(3)(a) of the Indian Income-tax Act is an enactment applicable to all persons irrespective of their faithor religion. The fact that amongst Sudras, illegitimate sons get a share of the inheritance on the death of the putative father will not entitle the court to introduce that consideration in interpreting the word ' child ' in Section 16(3)(a) of the Act which applies to Hindus as well as to Christians, Muhammadans and members of the other communities.'

7. The rationale behind that observation is clearly applicable to the present case also. Even if we import the declaration contained in the amended Section 16 of the Hindu Marriage Act, 1955, into Section 9(2) of the Tamil Nadu Agrl. I.T. Act, 1955, still there will be an area where the children will be illegitimate to whom the section, will have no application. For instance, an offspring of concubinage will still continue to be an illegitimate child and Section 9(2) of the Tamil Nadu Agrl, I.T. Act will not take in such a child. Similarly, the children of a bigamous marriage contracted by a Christian will be illegitimate and those children also will not be covered by Section 9(2) of the said Act. Consequently, taking into account these vital considerations we are unable to agree with the learned Addl. Govt. Pleader that the statutory declaration contained in the amended Section 16 of the Hindu Marriage Act, 1955, should be invoked for the purpose of construing the scope of the word ' child ' occurring in Section 9(2) of the Tamil Nadu Agrl. I.T. Act, 1955. The result is, the two revision cases succeed and accordingly they are allowed and the impugned order of the Commissioner of Agrl. I.T. is set aside. There will be no order as to costs.


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