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CASE NO.: Appeal (civil) 5450-5451  of  1997

PETITIONER: THE COMMISSIONER OF INCOME TAX, BIHAR-II, RANCHI

       Vs.

RESPONDENT: SMT.  SANDHYA RANI DUTTA

DATE OF JUDGMENT:       22/02/2001

BENCH: Y.K.Sabharwal, S.N.Hegde, S.P.Bharucha

JUDGMENT:

Bharucha, J. L.....I.........T.......T.......T.......T.......T.......T..J

     These  appeals arise from a judgment delivered by  the High  Court  at  Patna  (Ranchi  Bench)  on  an  income  tax reference  at  the  instance  of  the  Revenue.   The  three questions  the  High Court was called upon to consider  read thus:  (i) Whether on the facts and in the circumstances of the  case, female heirs of a Hindu governed by the Dayabhaga School of Hindu Law dying intestate could form a joint Hindu Family by means of agreement ?

     (ii)  Whether female heirs of a Hindu governed by  the Dayabhaga  School of Hindu Law dying intestate could impress upon  their inherited property the character of joint family property ?

     (iii) Whether on the facts and in the circumstances of the  case,  one-third of the properties inherited  from  her husband  was assessable in the hands of the assessee in  the status of individual?

     The High Court answered the first and second questions in  the  affirmative and in favour of the assessee  and  the third question in the negative and against the Revenue.

     The  brief  facts leading to the reference are  these: One  Har  Govind  Dutta, a Hindu governed by  the  Dayabhaga School  of  Hindu  Law, died intestate on 19th  June,  1972, leaving  behind his widow (the assessee- respondent) and two daughters,  Priya  Dutta and Keya Dutta.  That the  assessee and the two daughters inherited the self-acquired properties of  the  deceased  in equal shares is not in  dispute.   The assessee  and the two daughters entered into an agreement on 26th  July,  1972.   Thereby they claimed to form  an  Hindu undivided  family  and the assessee threw her share  of  the inherited  property  into the kitty of this Hindu  undivided family.   Accordingly, for the Assessment Years 1974-75  and 1975-76  the  assessee  did not disclose in her  income  tax returns any income from her share of the inherited property.

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     The  Income  Tax  Officer   rejected  the   assessees contention that her share of the inherited property had been thrown  into  the kitty of an Hindu undivided family and  he held  that  she was liable to income tax in respect  of  the income  therefrom.  Her appeal was rejected by the Appellate Assistant  Commissioner.  She went up before the Income  Tax Appellate  Tribunal,  which reversed the view of the  taxing authorities.   From out of the judgment of the Tribunal  the questions  aforestated were referred to the High Court.  The High  Court,  relying principally upon the judgment of  this Court  in Commissioner of Wealth-Tax vs.  Gauri Shankar Bhar (84  I.T.R.  699), came to the conclusion that there was  no bar  to  the  constitution of an Hindu undivided  family  in respect of properties inherited by the heirs, whether female or  male, of a Hindu governed by the Dayabhaga School  dying intestate by throwing an ascertained share into the hotchpot by agreement.

     The  High  Court  was in error in its reading  of  the judgment  of  this Court in the case of Gauri  Shankar  Bhar (supra).   This  Court held, in view of the concession  that each  one  of  the  heirs  of a  deceased  governed  by  the Dayabhaga  School took a definite share in the property left by  him,  that  it  was not necessary to  decide  whether  a Dayabhaga Hindu family could be considered a Hindu undivided family  within  the meaning of Section 3 of the  Wealth  Tax Act,  1957.   It  held that, on the facts of the  case,  the heirs  had  taken the property of the deceased  in  separate shares;   therefore, in law, each of them was liable to  pay wealth-tax  as  individuals.  It could not be said  that  an individual who inherited some property from someone became a Hindu  undivided family merely because he was a member of an Hindu undivided family.  There is, therefore, nothing in the judgment  in  Gauri Shankar Bhars case to support the  view taken by the High Court.

     In  Gowli  Buddanna vs.  Commissioner  of  Income-Tax, Mysore  (60 I.T.R.  293) this Court held that there might be a  joint Hindu family consisting of a single male member and the widows of deceased coparceners.  The plea that there had to  be  atleast two male members to form a  Hindu  undivided family  as  a  taxable entity was found to  have  no  force. Implicit  in  this is the conclusion that atleast  one  male member  is necessary for the purposes of the formation of an Hindu undivided family.

     In  Surjit Lal Chhabda vs.  Commissioner of Income-tax (101  I.T.R.   776) it was held by this Court that  a  joint Hindu  family, with all its incidents, is a creature of  law and  cannot be created by the act of parties, except to  the extent  to which a stranger may be affiliated to the  family by adoption.

     This  Court  in  Pushpa   Devi  vs.   Commissioner  of Income-tax  (109 I.T.R.  730) held that it was a fundamental notion  governing a joint Hindu family that a female  member of the joint family cannot blend her separate property, even if  she  is  the absolute owner thereof, with  joint  family property.   This  judgment  covered a case where  there  was already  a joint family in existence and held that, even so, a  female cannot blend her absolute property therewith.  The ratio  applies  as much when a female purports to create  by agreement  with other females an Hindu undivided family  and blends the property of her absolute ownership therewith.

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     The  assessee respondent has not put in an appearance. Since  a question of law was involved, we had requested  Mr. B.  Sen to assist us, which he has very kindly done.  He has drawn  our  attention to the judgment of the  Calcutta  High Court  in Commissioner of Wealth Tax vs.  Gouri Shankar Bhar (68  I.T.R.   345),  which judgment was considered  by  this Court  in  Gouri  Shankar Bhars case.  Mr.   Sen  drew  our attention   to  the  observation   therein  that  under  the Dayabhaga  School  a  joint family amongst  brothers  was  a creation  not  of  law but of a desire to live  jointly,  it originated  in  fact and not by legal fiction.  He drew  our attention also to the observation that a joint family could, in  relation  to persons governed by the  Dayabhaga  School, come  into existence only by an act of volition on the  part of the heirs, such as an agreement to live, mess and worship jointly.

     The principal question that we are concerned with here is  the capacity of Hindu females to form among themselves a Hindu  undivided family.  No authorities to support this are brought  to  our  notice;  indeed they cannot  be,  for  the concept  appears to us to be alien to the Hindu personal law which  requires  the presence of a male for the purposes  of the constitution of an Hindu undivided family.

     It  is appropriate, however, to note the two judgments cited  by  the  Tribunal  in  its  order  which  it  thought supported  the assessees case.  The Tribunal stated that it had   been  observed  by  the   Allahabad  High   Court   in Commissioner  of  Income-tax  vs.  Sarwan Kumar  (13  I.T.R. 361)  that there can be a Hindu undivided family consisting of  female members only. We have seen that judgment and  we find  that  that  is not the conclusion of the  High  Court. What  it said was, It follows that on the disappearance  of the  last  male  member, the other members  of  the  family, though  not  coparceners,  continue  to   be  members  of  a undivided  Hindu family. What was held, therefore, was that on  the death of the sole male member of an Hindu  undivided family,  the ladies who were members thereof could  continue with  that status.  The Tribunal also cited the judgment  of this  Court  in  Commissioner  of  Income-tax,  Madras   vs. Veoroppa  Chottiar  (76 I.T.R.  467).  The Tribunal  rightly noted  that  this Court had there held that so long  as  the property  which  was  originally  of a  joint  Hindu  family remained  in  the hands of the widows of the members of  the family  and  was  not divided among them, the  joint  family continued.   The conclusion that the Tribunal drew from this was  erroneous, namely, Thus according to the Supreme Court also only females can also form a joint Hindu family.

     In  the present case, as aforestated, the assessee and her  two daughters inherited in their individual capacity  a one-third share each in the estate of the deceased.  We have no  authority before us which can lead us to the  conclusion that  the  assessee  and her two daughters were  capable  of forming  a joint Hindu family or of throwing the interest of any  one  of them in the inherited property therein.  As  we have  stated,  the concept of Hindu females forming a  joint Hindu  family by agreement amongst themselves appears to  us to be contrary to a basic tenet of the Hindu personal law.

     Accordingly,   the   questions   are  answered   thus: Question (i) - in the negative and in favour of the Revenue. Question  (ii)    in  the negative and  in  favour  of  the

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Revenue.   Question (iii) in the affirmative and in  favour of the Revenue.

     We   repeat  our  gratitude  to   Mr.   Sen  for   his assistance.  The appeals are allowed.  No order as to costs.