1. The question referred to this Court under Section 66(1) of the Income-tax Act is whether on the facts and circumstances of the case and on true interpretation of the provisions of Sub-sections (1) and (3) of Section 9 of the Income Tax Act, the Tribunal was correct in holding that the income from the house properties could not be assessed in the hands of the assessee Hindu undivided family?
2. The facts as discovered from the statement of the case are as follows :
The assessee is a Hindu undivided family governed by Dayabhaga school of Hindu law, which came into existence on the death of one J.K. Rudra who died intestate in 1939 leaving certain immovable properties and a widow Sm. Bani Rani Rudra as also a minor son. On the death of J.K. Rudra, his son and wife succeeded to the properly in equal shares. The question before the Income-tax authorities was whether the income from the house properties should be assessed in the hands of the individual members constituting the family. Both the Income-tax Officer and the Appellate Assistant Commissioner were of the view that Section 9(3) was attracted only in case of association of persons, the members of which have definite and ascertaingble shares but did not apply to a Hindu undivided family. On further appeal the Appellate Tribunal took a different view. The Tribunal found that when a Hindu governed by Dayabhaga school of Hindu law died intestate leaving any property, his widow is entitled to an equal share with' the son under the Hindu Women's Rights to Property Act, 1937, though the widow's interest in the property is a limited Interest. Irrespective of the question as to whether she had a claim for partition or not, her undisputed right to share the property equally with her son could not be questioned. The Tribunal therefore held that on the death ofJ.K. Rudra, his son and wife became entitled to the properties in equal shares and under Section 9(3) of the Income-tax Act the income from properties could be assessed only on the assessment of two persons separately inasmuch as they were co-owners of the properties each having; a definite share therein,
3. Mr. Pal appeared for the Revenue and has placed the matter very fairly before us. There can be no question that the Tribunal came to the right conclusion. Under Section 9(1) of the Income-tax Act 'a tax shall be payable by an assessee in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of which he is the owner.' Therefore, when income from property has to be assessed it must be done in the hands of the owner. Section 9(3) lays down : 'Where property is owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property computed in accordance with this section shall be included in his total income.' This sub-section clearly lays down that where the shares of the owners are definite and ascertained, they are not to be treated as an association or persons. Therefore, they cannot be treated as members of a Hindu undivided family if their shares are definite.
4. Reference may be made to the position under the Daya Bhaga School of Hindu law in Mulla's well-known book (12th edition, page 417), Article 278 where the learned author observes : 'According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father's death. On the death of the father they take such of the property as is left by him, whether separate or ancestral, as heirs and not by survivorship' and again at p. 520, Article 347, 'according to the Dayabhaga law, on the other hand, each coparcener has, even whilst the family remains undivided, a certain definite share in the joint property of which he is the absolute owner. The property is held in defined shares, though the possession is the joint possession of the whole family. Partition, according to that law, consists in separating the shares of the coparceners, and assigning to the coparceners specific portions of the property. Under Section 3(1) of the Hindu Women's Rights to Property Act 1937 'when a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property * *** 'his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son.' Sub-section (3) states that 'any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.' The result of this was that on the death of J.K. Rudra his widow became entitled to the same share as a son and as heleft only one son, she became entitled to one moiety of the property with her son.
5. By reason of the operation of the Hindu Succession Act 1956, Section 14, the limited interest which she got under the Act of 1937 was converted into that of a full owner. But for income-tax purposes we have got to see whether her share and that of her son, who were the owners of the property, were definite and ascertained. If so, income from the immovable properties left by J.K. Rudra could only be assessed in their hands under Section 9(1) read with S.C. which could not be treated as income belonging to a joint family even if there was no partition between the widow and her son.
6. In the result, the answer must be in the affirmative and in favour of the assessee. The assessee did not appear before us. There will therefore be no order as to costs.
7. I agree.