NASIM ALI, J. - This is a reference under Section 66 (2) of the Indian Income-tax Act, XI of 1922.
The assessee is the widow of one Upendra Nath Sadhukhan who with his younger brother Bepin Behari Sadhukhan formed an undivided Hindu family. Upendra died intestate on December 23, 1917 leaving the assessee as his sole heiress under the Hindu law. Thereafter difference arose between her and her brother-in-law, Bepin Behari, as regards the joint properties.
In May 1923 the assessee left her husbands house in Calcutta and went to live at Howrah with her maternal uncle. On October 10, 1923, by a deed of relinquishment she surrendered her life estate in favour of her brother-in-law, Bepin in consideration of a payment by Bepin by way of maintenance of Rs. 1,000 per month.
The question is whether on these facts the sum of Rs. 12,000 which the assessee receives by way of maintenance every year can be said to have been so received by her as a member of the Hindu undivided family within the meaning of Section 14 (1) of the Indian Income-tax Act of 1922.
The words 'Hindu undivided family' in the Statute apply to all Hindu joint family governed by all the school of Hindu law. The assessee is no longer joint in food or worship or in estate with her brother-in-law, Bepin. The latter has now become the sole owner of the properties which originally constituted the joint property of himself and the assessee. The assessee and Bepin therefore, no longer constitute a Hindu undivided family and consequently, the question of the assessees being a member of a Hindu undivided family does not arise. The money which she receives every month from Bepin on the basis of the deed of receives every month from Bepin on the basis of the deed of relinquishment is not received by her as the income from a joint Hindu family property.
Under these circumstances, I am of opinion that the sum of Rs. 12,000 which is received by the assessee is not received by her as a member of a Hindu undivided family within the meaning of Section 14 (1) of the Indian Income-tax Act of 1922.
The Commissioner is entitled to the costs of this reference. We assess the Advocates fees at five gold mohurs. The other cost will be according to the rules.
DERBYSHIRE, C. J. - I agree. This widow has left the familys roof and the family idol and gone elsewhere. She has abandoned her rights as a Hindu widow and taken in exchange the rights under a contract in writing; she has completely separated from the family.
It cannot be said but the income she receives she receives as a member of a Hindu undivided family.
Reference answered accordingly.