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PETITIONER: COMMR. OF WEALTH TAX, MADRAS & ORS.

       Vs.

RESPONDENT: LATE R. SRIDHARAN BY L.Rs.

DATE OF JUDGMENT29/04/1976

BENCH:

ACT:      Special Marriage Act, 1954, , Sec. 21- Marriage between Hindu assessee and Christian female-Whether issue is a Hindu governed by Hindu Law.

HEADNOTE:      The late  R. Sridharan married Rosa Maria Steinbichler, a christian  Austrian of descent, under the Special Marriage Act, 1954  and a  son Nicolas  Sundaram was  born out of the wedlock. In  the assessment  proceedings i respect of income tax, wealth tax and expenditure tax, Sridharan claimed to be assessed in the status of a member of Hindu Undivided Family consisting of  himself and  his  son,  contending  that  the property held  by him was ancestral and Nicolas Sundaram was a Hindu.  The officers dealing with these taxes rejected the contention and  assessed him  as an individual on the ground that succession  to the  property of  a person married under the Special  Marriage Act,  1954, is  governed by the Indian Succession Act,  1925 and  not by  ordinary   Hindu Law  and Nicolas  Sundaram   could  not  become  a  member  of  Hindu Undivided Family With his father. these orders were affirmed by  the  Appellate  Assistant  Commission  i  the  Appellate Tribunal in  appeals by  Sridharan against the assessments.. On further  applications made  by Sridharan,  the Income Tax Appellate Tribunal  referred the  matter to  the High  Court which  decided   in  favour   of  Sridharan  but  granted  a certificate of  fitness. Meanwhile,  Sridharan died, and his widow filed  wealth tax  returns, claiming  the status  of a member of  Hindu Undivided  Family. The  Revenue authorities followed their  earlier decisions, and ultimately the matter was referred to the High Court  which  decided in  favour of respondent Mrs. Sridharan, but granted Leave to appeal to this Court.      Dismissing the appeals, the Court, ^      HELD: (  1 )  Under the  codifying, Acts.  the orthodox concept of  the term  "Hindu" has undergone a radical change and it has been given an extended meaning. The Acts not only apply to Hindus but also to a large number of other persons. Any child  legitimate or  illegitimate, one of whose parents is a  Hindu by religion and who is brought up as a Hindu, is a Hindu. [478D-E]      (2) Section  21 of  the Special  Marriage  Act  has  no bearing on the present case. The section does not in any way impair  or  alter  the  joint  family  structure  between  n assessee and  his son.  Nor does  it affect  the  discretion vested in  a Hindu assessee to treat his properties as joint family properties  by taking into his fold his Hindu sons so as to continue joint family properties [479 A-C]      Shastri Yagnapurushdasji  & Ors.  v. Muldas  Bhundardas

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Vaishya and  Anr. AIR  1966 S.C. 1119; Bhagwan Koer v. J. C. Bose &  Ors. (1904)  ILR 31  Cal. 11;  Lingappa v.  Esudasan (1904) 27  Mad. 13;  Mothey Anja  Ratna Raja  Kumar v. Koney Narayana Rao  & Ors. AIR 1953 SC 433 and Ananthaya v. Vishnu 17 Mad. 160, referred to.      Webster’s  3rd  New  International  Dictionary  of  the English  Language;  Encyclopaedia  Britannica  (15th  Edn.); Gitarahasya by  B. G.  Tilak Principles  of Hindu  Law (14th Edn.) pp.  671 and  chap. I para 6 by Mulla, and Hindu Law & Usage (11th Edn.) pp. 290 by Mayne, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1399 to 1403 of 1970. 479      Appeal from  the Judgment and order dated 20th December 1-968 A  the Madras  High  Court  in  Tax  Case  No.  314/64 (Reference No. 82 of 1964) and                 Civil Appeal No. 301 of 1974      Appeal from the Judgment and order dated 3rd April 1972 of the  Madras High  Court in  Tax  Case  No.  328  of  1966 (Reference No. 88/66).      S. T.  Desai, J.  Ramamurthi; for  the appellant (In CA 1399-1403 of 1970).      S.  Swaminathan,   Mrs.  S.   Gopalakrishnan  for   the Respondent in all the appeals.      The Judgment of the Court was delivered by      JASWANT SINGH,  J. These  Appeals Nos.  1399 to 1403 of 1970 and  301 of  1974 by  certificates granted  by the High Court of  Madras shall  be  disposed  of  together  by  this judgment as they raise common question of law and fact.      The circumstances giving rise to these appeals are: The late  R.  Sridharan  along  with  his  father  and  brothers constituted a  Hindu undivided family governed by Mitakshara law. On  June 28,  1952, while  he was  still  unmarried,  a partition took  place between  him,  his  brothers  and  his father. As  a result of this partition, a block of shares in T. V.  Sundaram Iyengar  and Sons  Private Limited and three other limited companies fell to his share. On June 14, 1956, Sridharan married  Rosa Maria Steinbchler, a Christian woman of Austrian  descent, under  the Special Marriage Act, 1954. On November  29, 1957, a son named Nicolas Sundaram was born out of  this wedlock.  For the assessment years 1957-58, and 1958-59, Sridharan was assessed to income tax and wealth tax in the  status of  an ’individual’ on his own declaration to that effect.  In the  assessment proceedings  in respect  of income tax  and wealth tax for the assessment years 1959-60, 1960-61 and  1961-62 and in the assessment proceedings under the Expenditure  Tax Act for the year 1961-62, he claimed to be assessed  in the  status of  a member  of Hindu undivided family consisting  of himself and his son, Nicolas Sundaram, contending that  the property  held by him was ancestral and Nicolas Sundaram was a Hindu. The Income Tax officer, Wealth Tax officer and Expenditure Tax officer refused to accede to the contention  of Sridharan  and assessed him in the status of an  ‘individual’ as  in the previous years on the grounds that the  value of  the share and other investments standing in his  name being his exclusive properties and by virtue of section 21  of the Special Marriage Act, 1954, succession to the property  of a person whose marriage has been solemnized under that  Act being governed by the Indian Succession Act, 1925, and  not by  the ordinary  Hindu law, Nicolas Sundaram could not become a member of Hindu undivided family with his

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father.  Sridharan  thereupon  went  up  in  appeal  to  the Appellate Assistant  Commissioner but remained unsuccessful. The orders passed by the Income 480 Tax /Wealth  Tax/Expenditure Tax  officers and the Appellate Assistant Commissioner were also affirmed in appeals against the assessments respectively made under the Income-tax Act‘, Wealth Tax  Act and the Expenditure Tax Act by the Appellate Tribunal. In  the course of its consolidated order rejecting the appeals,  the appellate  Tribunal observed that although section 21  of the  Special Marriage  Act pre served some of the rights  in the  family property of the children born out of marriage  solemnized under  that Act,  it did  not clothe such off  spring with the character of Hindus and therefore, there was no Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.      Thereafter on  the applications made by Sridharan under section 27  ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of the Income-tax  Act and section 25(l) of the Expenditure Tax Act,  the   Income-tax  Appellate   Tribunal  referred   the following common  question of law arising from its aforesaid decision for the opinion of the High Court:-           "Whether, on the facts and in the circumstances of      the case,  the assessee and his son constituted a Hindu      undivided family  for purposes  of assessment under the      Income-tax, Wealth-tax and Expenditure-tax Acts ?"      The High  Court following the decision of this Court in Gowli Buddanna  v. Commissioner  of Income-tax(l)  held that Sridharan’s claim  to be  reckoned as Hindu undivided family was well  merited and  the Tribunal  was in error in holding that there  was no  Hindu undivided  family of Sridharan and his son  which could  claim to be assessed and taxed as such either under  the Income-tax  Act, or  Wealth Tax Act or the Expenditure Tax Act. The High Court accordingly answered the question in  the  affirmative  but  granted  certificate  of fitness for appeal to this Court.      Sridharan died  on April  9, 1962. A few days after the valuation date relevant for the assessment year 1963-64, his widow Mrs.  Rosa Maria Steinbchler filed a wealth tax return claiming that the assessment for the assessment year 1962-63 should be  made in the status of Hindu undivided family. The Wealth Tax  officer following  his earlier  decision in  the assessment proceedings  in respect  of  the  previous  years rejected the  claim of  Rosa Maria  Steinbchler holding that she was  not a Hindu and in any case since her marriage with Sridharan was  under the Special Marriage Act, 1954, Nicolas Sundaram had no right by birth in the properties obtained by the assessee  on partition.  He further  held  that  Nicolas Sundaram could  claim Sridharan’s  property only  under  the Indian Succession  Act, 1925 and not under the Hindu law. on appeal, the  Appellate Assistant  Commissioner affirmed  the order of the Wealth Tax officer. A further appeal was 481           "Whether  the  assessee,  Sridharan  and  his  son      constituted A  in law a Hindu undivided family for  the      purpose of assessment under the Wealth-tax Act, 1957 ?"      The High Court answered the question in the affirmative i.e. .  against the  Revenue observing  that the decision in the previous  reference directly  governed the  facts of the fresh reference.      Aggrieved  by   this  order  of  the  High  Court,  the appellant applied and obtained leave to appeal to this Court under section  29(1) of  the  q  Wealth-tax  Act,  1957  and Article 133(1)(c)  of the Constitution of India. This is how the appeals are before us.

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    Counsel appearing  for the  appellants and  respondents have  repeated   before  us   the  contentions  respectively advanced on behalf of the parties before the High Court.      It  cannot  be  disputed  that  a  joint  Hindu  family consists of  all persons  lineally descended  from a  common ancestor and  includes their  wives and unmarried daughters. It  cannot  also  be  disputed  that  property  obtained  by Sridharan on partition between his father and brothers could become ancestral  property so far as his sons, grandsons and great  grandsons  were  concerned  who  could  according  to Mitakshara law acquire an interest therein by birth.      The  sole   question  which,  however,  falls  for  our consideration in  these appeals  is whether Nicolas Sundaram is a  Hindu governed  by Hindu law. It is a matter of common knowledge that  Hinduism  embraces  within  itself  so  many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term ’Hindu’ with precision.      The historical  and etymological  genesis of  the  word "Hindu" has   been  succinctly explained  by Gajendragadkar, C.J. in Shastri Yagnapurushdasji & ors. v. Muldas Bhundardas Vaishya & Anr.(l).      In  Unabridged   Edition   of   Webster’s   Third   New International Dictionary  of the  English language, the term ’Hinduism’ has  been defined  as meaning  "a complex body of social,  cultural,   and  religious  beliefs  and  practices evolved in  and largely  confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and  theories as  aspects of  one  eternal  being  and truth, a  belief in  ahimsa,  karma,  dharma,  sansara,  and moksha, and  the practice  of the  way of  works, the way of knowledge, or  the way  of devotion  as the means of release from the  bound of  rebirths; the  way of life and form r of thought of a Hindu".      In Encyclopaedia  Britannica (15th  Edition), the  term ’Hinduism’ has  been defined as meaning "the civilization of Hindus (originally, the inhabitants of the land of the Indus River). It  properly  denotes  the  Indian  civilization  of approximately the last 2,000 years, which      (1) A.I.R. 1966 S.C. 1119.      33-833 SCI/76 482 gradually evolved  from Vedism,  the religion of the ancient Indo-European peoples  who settled  in  India  in  the  last centuries of  the 2nd millennium BC. Because it integrates a large   variety    of   heterogeneous   elements,   Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary,  and artistic  aspects. As  a  religion, Hinduism is  an utterly  diverse conglomerate  of doctrines, cults,  and   way  of   life  ....  In  principle,  Hinduism incorporates  all   forms  of  belief  and  worship  without necessitating the selection or elimination of any. The Hindu is inclined  to revere  the divine  in every  manifestation, whatever it  may be,  and is  doctrinally tolerant,  leaving others-including both  Hindus and  non-Hindus-whatever creed and worship  practices suit them best. A Hindu may embrace a non-Hindu religion  without ceasing to be a Hindu, and since the Hindu  is disposed  to think synthetically and to regard other  forms   of  worship,   strange  gods,  and  divergent doctrines as  inadequate rather than wrong or objectionable, he  tends   to  believe   that  the  highest  divine  powers complement each  other for  the well-being  of the world and mankind. Few  religious ideas  are considered  to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or on whether there is

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one god  or many. Since religious truth is said to transcend all verbal definition it is not conceived in dogmatic terms. Hinduism is,  then both a civilization and a conglomerate of religions, with  neither  a  beginning,  a  founder,  nor  a central authority, hierarchy, or organization. Every attempt at  a   specific   definition   of   Hinduism   has   proved unsatisfactory in  one way  or another,  the more so because the finest  Indian scholars  of Hinduism,  including  Hindus themselves, have emphasized different aspects of the whole".      In his  celebrated treatise  "Gitarahasaya", B.G. Tilak has given  the following  broad  description  of  the  Hindu religion:-      :    "Acceptance   of   the   Vedas   with   reverence; recognition of  the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of gods  to   be  worshipped  is  large,  that  indeed  is  the distinguishing feature of Hindu religion".      In Bhagwan  Koer v.  J. C.  Bose &  ors.(l) it was held that Hindu  religion is  marvellously catholic  and elastic. Its theology  is marked  by eclecticism  and  tolerance  and almost unlimited freedom of private worship. Its social code is much more stringent, but amongst its different castes and sections, exhibits  wide diversity  of practice. No trait is more marked  of Hindu  society in general than its herror of using the meat of the cow.      This being  the scope and nature of the religion, it is not strange  that it  holds within its fold men of divergent views and traditions who have very little in common except a vague faith  in what  may be  called the fundamentals of the Hindu religion.      (1) [1904] I.L.R. 31 Cal. 11. 483      It will  be advantageous at this stage to refer to page 671  of  Mulla’s  A  Principles  of  Hindu  Law  (Fourteenth Edition), where the position is stated thus:-      :    "The word  ’Hindu’ does  not denote any particular religion or  community. During  the last  hundred years  and more  it   has   been   a   nomenclature   used   to   refer comprehensively to various categories of people for purposes of personal  law. It has been applied to dissenters and non- comformists and  even to  those who have entirely repudiated Brahminism. It  has been  applied to various religious sects and bodies  which at  various periods  and in  circumstances developed out  of or  split off  from, the  Hindu system but whose members  have nevertheless continued to live under the Hindu law  and the  Courts  have  generally  put  a  liberal construction upon  enactments relating  to the personal laws applicable to Hindus".      In paragraph  6  of  Chapter  I  of  Mulla’s  aforesaid Treatise, the  following have  been enumerated as persons to whom Hindu law applies:-           "(i) not only  to Hindu  by  birth,  but  also  to                Hindus  by   religion,   i.e.   converts   to                Hinduism;           (ii) to  illegitimate children  where both parents                are Hindus;            (iii)to illegitimate children where the father is                a Christian  and the  mother is  a Hindu, and                the children  are brought  up as  Hindus. But                the   Hindu   law   of   coparcenary,   which                contemplates the  father as  the head  of the                family and  the. sons as coparceners by birth                with rights  of survivorship, cannot from the                very  nature   of  the  case  apply  to  such                children;

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           (iv)  to Jains,  Buddhists in  India, Sikhs  and                Nambudri Brahmins  except so  far as such law                is varied  by custom  and to Lingayat who are                considered Sudras;            (v)  to a  Hindu by  birth who,  having renounced                Hinduism, has reverted to it after performing                the  religious   rites   of   expiation   and                repentence. Or  even without  a formal ritual                of reconversion  when he  was recognised as a                Hindu by his community;           (vi) to  sons of  Hindu dancing  girls of the Naik                caste converted  to Mahomedanism,  where  the                sons are  taken into  the family of the Hindu                grandparents and are brought up as Hindus;          (vii) to  Brahmos;   to  Arya   Samajists;  and  to                Santhals of Chota Nagpur and also to Santhals                of Manbhum  except so far as it is not varied                by custom; and 484         (viii) to Hindus  who made  a declaration  that they                were  not  Hindus  for  the  purpose  of  the                Special Marriage Act, 1872."      This enumeration  is based  upon decisions  of  various courts relating to old uncodified Hindu law.      In   Lingappa   v.   Esudasen(l)   which   related   to maintenance, it  was held  that Hindu  law does not apply to the illegitimate  children of  a Hindu father by a Christian mother who  are  brought  up  a  Christians.  This  decision indirectly leads  to the conclusion that legitimate children of a  Hindu father  by a Christian mother who are brought up as Hindus would be governed by Hindu law.      In Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao & ors.(2) whole  approving the  observations made in Ananthaya v. Vishnu(3)  this Court  inter alia  held  that  under  the Mitakshara  law,   an  illegitimate   son  is   entitled  to maintenance as  long as  he lives,  in  recognition  of  his status as a member of his father’s family.      Under the codifying Acts namely the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardian  ship   Act,  1956   and  the  Hindu  Adoption  and Maintenance Act,  1956, the  orthodox concept  of  the  term ’Hindu’ has undergone a radical change and it has been given an extended  meaning. The  aforesaid codifying Acts not only apply to  Hindus by  birth or  religion i.e.  to converts to Hinduism but  also to  a  large  number  of  other  persons. According to  explanation (b)  to section  2(1) of the Hindu Succession Act,  1956, Hindu  Adoption and  Maintenance Act, 1956 and  Hindu Marriage  Act, 1955  as  also  according  to explanation (ii)  to section  3(1) of the Hindu Minority and Guardianship   Act,    1956,   any   child   legitimate   or illegitimate, one  of whose  parents is  a Hindu by religion and who is brought up as a Hindu is a Hindu.      In the  present case, Sridharan is a Hindu by birth and was lawfully  married to  Rosa Maria Steinbchler. Even after his marriage,  he did not renounce Hinduism but continued to profess that  religion. Having  been  begotten  out  of  the aforesaid valid  and lawful  wedlock, Nicolas  Sundaram is a legitimate child  and lineal  descendant of Sridharan. There is no  material on  the record to show that Nicolas Sundaram was not  brought up as a Hindu or that he did not conform to the habits  and usages  of  Hinduism  or  that  he  was  not recognised as a Hindu by the society surrounding him or that he became  a convert  to another  faith. Sridharan  has also unequivocally acknowledged  and expressly  declared that  he and his  son, Nicolas  Sundaram  formed  a  Hindu  undivided

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family. This declaration in the circumstances is sufficient, as also  found by  the High Court? to establish that Nicolas Sundaram was  brought up  as a Hindu member of the family to which his  father belonged.  At page  290 of his Treatise on Hindu Law,  and Usage  (Eleventh Edition), Mayne says that a child  in  India,  under  ordinary  circumstances,  must  be presumed to have his father’s (1) [1904] 27 Mad. 13. (2) A.I.R. 1953 S.C. 433. (3) 17 Mad. 160. 485 religion, and his corresponding civil and social status. He, there- A  fore, have  no hesitation  in holding that Nicolas Sundaram is  a Hindu and he could validly be a member of the Hindu undivided  family headed by his father and be governed by Hindu law.      Section 21  of the  Special Marriage Act which has been heavily relied  upon by  the Revenue has, in our opinion, no bearing on  the present  case. That  section  provides  that succession to  the property  of a  person whose marriage has been solemnized under the Special Marriage Act, 1954 and the property of  the issue of such marriage shall be governed by the provisions of the Indian Succession Act (XXXIX of 1925). In other  words, the  section guarantees  inter alia  to the issue of the person whose marriage has been solemnized under the Special  Marriage Act  a collateral  statutory right  of succession to  the estate  of the  latter in  case  he  dies intestate. It  does not in any way impair or alter the joint family structure  between an  assessee and his son. Nor does it effect,  as observed  by the  High Court,  the discretion vested in  a Hindu assessee to treat his properties as joint family properties  by taking into his fold his Hindu sons so as to constitute joint family properties.      For the  foregoing reasons,  we are of the opinion that the aforesaid  question  referred  to  the  High  Court  was rightly answered by it on both the occasions. In the result, we find  no merit  in these appeals which are dismissed with costs. M.R.                                      Appeals dismissed. 486