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PETITIONER: C.   KRISHNA PRASAD

       Vs.

RESPONDENT: C. I. T. BANGALORE

DATE OF JUDGMENT12/11/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ GUPTA, A.C.

CITATION:  1975 AIR  498            1975 SCR  (2) 709  1975 SCC  (1) 160

ACT: Indian  Income  tax  Act,  1922-Sec.  2(31)-Hindu  undivided family--Whether a single unmarried person can constitute  an HUF.

HEADNOTE: The assessee-appellant, with his father and brother formed a HUF  upto Oct. 30, 1958 when there was a  partition  between them  and  the  assessee got certain  house  properties  and vacant  sites.  The partition was recognised by the  Depart- ment  and  an order u/s 25-A of the Indian  Income-tax  Act, 1922  was passed recognising the partition with effect  from Nov. 1, 1958. On the date of partition and during the period ending  March 31,  1964  the  assessee was unmarried,  upto  1963-64,  the assessee  was  assessed as an individual, but for  the  year 1964-65,  the assessee filed a return showing his status  as an   individual  but  in  the  course  of   the   assessment proceedings  for  1964-65,  he claimed  that  he  should  be assessed in the status of a HUF. The  I.T.O.  did  not accept the claim  and  held  that  the assessee’s  status was that of an individual.  The order  of the  I.T.O. was affirmed on appeal by the  Appellate  Asstt. Commissioner and the Tribunal.  At the instance of the a the following question was referred to the High Court. "Whether  on the facts and circumstances in the  case,  etc, the  assessee  was  rightly assessed in  the  status  of  an individual for the assessment year 1964-65." The  High  Court  answered the question  in  favour  of  the revenue  and hence the appeal before this Court.   The  main question for decision is whether an unmarried male Hindu, on partition  of  a joint Hindu family can be assessed  in  the status of a HUF even though no other person besides him is a member of the alleged family. Dismissing the appeal, HELD:(1)  Section  4  of the Act of 1922  provides  for  the charging  of income tax on the total income of every  person subject  to  the  conditions  prescribed  in  that  Section. "Person"  has  been  defined in Sec. 2(31) of  the  Act  and includes, inter alia, an individual and a HUF. [711D] (2)  A  single  person. male or female,  however,  does  not constitute  a.  family.   He or she would  remain,  what  is

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inherent  in  the very nature of things,  an  individual,  a lonely  wayfarer till per chance he or she finds a mate.   A family consisting of a single individual is a  contradiction in terms. [711G] The  word ’family’ always signifies a group.   Plurality  of persons is an essential. attribute of a family. [711G] (3)  It  is well settled that a Hindu joint family  consists of all persons lineally descended from a common ancestor and includes  their  wives  and unmarried  daughters.   A  Hindu coparcenary  is a much narrower body then the joint  family. It  includes  only  those persons who acquire  by  birth  an interest in the joint or coparcenary property. [711H] (4)  The  expression "Hindu undivided family" in the  Income tax  Act is used in the sense in which a Hindu joint  family is understood under the various schools of Hindu Law.  Under the Hindu Law, it is not necessary that there must be a male member.  The joint family continues so long as the  property which  was originally of the joint Hindu family  remains  in the hands of the widows of the members of the family, and is not divided among them. [712A-D] 710 (5)  The  share which a coparcener obtains on  partition  of ancestral property is ancestral property as regard his  male issue.  As regards other relations, it is separate  property and  if the copercener dies without leaving male  issue,  it passes  to his heirs by succession. (Mulla’s  Principles  of Hindu Law 14th Ed. page 272 referred to.) [712D-E] (6)  In  view  of the above, it cannot be  denied  that  the appellant was the absolute owner of the property which  fell to his share as a result of partition and he could deal with his property in any way he liked.  In order to determine the status  of the assessee for the purpose of  income-tax,  one has  to look to the realities as they exist at the  time  of assessment  and it would not be correct to project into  the matter  future  possibilities  which  might  or  might   not materialise.   In the instant case, there can hardly be  any doubt  that the assessee is an individual and not a  family. [712G-H] Anant  Bhikappea  Patel v. Shankar Ramchandra  Patel  A.I.R. (30) 1943 P.C. 196 referred to and distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil appeal No. 1553 (N)  of 1970. From the Judgment & Order dated the 10th September, 1969  of the Mysore High Court in I.T.R.C. No. 7 of 1968. S.   T. Desai and Vineet Kumar, for the, appellant. R.   N. Sachthey, for the respondent. The Judgment of the Court was delivered by KHANNA,  J.-This  appeal  on  certificate  is  against   the judgment  of  the Mysore High Court whereby the  High  Court answered the following question referred to it under section 256(1) of the Income-tax Act, 1961 (hereinafter referred  to as the Act) in the affirmative in favour of the revenue  and against the assessee-appellant :               "Whether on the facts and in the circumstances               of the case the assessee, was rightly assessed               in  the  status  of  an  individual  for   the               assessment year 1964-65 ?" C.   Krishna Prasad assessee-appellant along with his father Krishnaswami  Naidu  and brother C. Krishna Kumar  formed  a Hindu  undivided family up to October 30, 1958,  when  there was a partition between Krishnaswami Naidu and his two sons.

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In the said partition the assessee got some house properties and  vacant  sites.   The partition was  recognised  by  the department  and  an order under section 25-A of  the  Indian Income-tax  Act, 1922 was passed recognising  the  partition with effect from November 1, 1958. On  the  date  of partition and  also  during  the  relevant period,  i.e.,  the  year  ending on  March  31,  1964,  the assessee was unmarried.  Up to the year 1963-64 the assessee was  assessed  in  the status of  an  individual.   For  the assessment year 1964-65 the assessee filed a return  showing his status as an individual.  In the Course, however, of the assessment  proceedings for the assessment year 1964-65  the assessee claimed that he should be assessed in the status of a  Hindu undivided family.  The income-tax officer  did  not accept  the claim of the assessee and held that  his  status was  that  of an individual.  The order  of  the  income-tax officer  was affirmed on appeal by the  Appellate  Assistant Commissioner  and on further appeal by the Appellate  Tribu- nal.   At  the  instance  of  the  assessee,  the   question reproduced above 711 was referred to the High Court.  The High Court, as  already mentioned,  agreed  with the  departmental  authorities  and answered the question against the assessee. The short question which. arises for determination, as would appear  from the resume of facts given above, is whether  an unmarried  male Hindu on partition of a joint  Hindu  family can  be assessed in the status of a Hindu  undivided  family even  though no other person besides him is a member of  the alleged family.  This Court in the case of Gowli Buddanna v. Commissioner   of   Income-tax  Mysore(1)   refrained   from expressing  an  opinion  on  the  point  "whether  a   Hindu undivided family pay for the purposes of the Indian  Income- tax  Act be treated as taxable entity when it consists of  a single member-male or female." After hearing the learned counsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee. Section 4 of the Act provides for the charging of income-tax on  the  total  income  of  every  person  subject  to   the conditions  prescribed in that section.  "’Person" has  been defined  in  section 2(31) of the Act  and  includes,  inter alia,  an  individual  and a Hindu  undivided  family.   The inherent fallacy of the case set up on behalf of the  asses- see-appellant  in  our opinion, is that according to  him  a single  individual can constitute a Hindu  undivided  family and  be  assessed  as such.  "Family" connotes  a  group  of people  related by blood or marriage.  According to  Shorter Oxford  English Dictionary, 3rd Ed. the word "Family"  means the group consisting of parents and their children,  whether living  together or not; in wider sense, all those  who  are nearly  connected by blood or affinity; a person’s  children regarded  collectively; those descended or claiming  descent from a common ancestor; a house, kindred, lineage; a race; a people   or  group  of  peoples.   According  to   Aristotle (Politics 1), it is the characteristic of man that he  alone has any sense of good and evil, or just and unjust, and  the association  of  living beings who have this  sense  make  a family and a State.  It would follow from the above that the word  "Family"  always  signifies  a  group.   Plurality  of persons  is  an essential attribute of a family.   A  single person, male or female, does not constitute a family.  He or she  would  remain, what is inherent in the very  nature  of things, an individual, a lonely wayfarer till per chance  he or  she  finds  a mate.  A family  consisting  of  a  single

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individual  is a Contradiction in’ terms.  Section 2(31)  of the  Act  treats  a  Hindu undivided  family  as  an  entity distinct  and different from an individual and it would,  in our opinion, be wrong not to keep that difference in view. It is well settled that a Hindu joint family consists of all persons  lineally  descended  from  a  common  ancestor  and includes  their  wives  and unmarried  daughters.   A  Hindu coparcenary  is a much narrower body than the joint  family; it includes only those persons who acquire (1)  [1966] 60 T.T.R, 293. 712 by  birth an interest in the joint or coparcenary  property, these being the sons, grandsons, and great-grandsons of  the holder  of the joint property for the time being.  The  plea that there must be at least two male members to form a Hindu undivided  family as a taxable entity has no  force.   Under Hindu law a joint family may consist of a single male member and widows of deceased male members.  The expression  "Hindu undivided family" in the Income-tax Act is used in the sense in  which  a  Hindu joint family  is  understood  under  the various schools of Hindu law (see Attorney-General of Ceylon v. Ar.  Arunachalwn Chattiar & Ors.(1) and Gowli Buddana  v. Commissioner  of Income-tax Mysore (supra).  In the case  of Commissioner of Income-tax Madras v. Ram Ar.  Ar.   Veerappa Chettiar(2) this Court observed that under the Hindu law  it is not predicated of a Hindu joint family that there must be a male member.  It was accordingly held that so long as  the property  which  was originally of the  joint  Hindu  family remains  in  the hands of the widows of the members  of  the family  and  is  not divided among them,  the  joint  family continues.   One  thing significant which follows  from  the above  is  that  the assessment in the  status  of  a  Hindu undivided family can be made only when there are two or more members of the Hindu undivided family. The  share  which  a  coparcener  obtains  on  partition  of ancestral property is ancestral property as regards his male issue.   They take an interest in it by birth, whether  they are  in  existence  at the time of  partition  or  are  born subsequently.   Such share, however, is  ancestral  property only as regards his male issue.  As regards other relations, it is separate property, and if the coparcener dies  without leaving  male  issue, it passes to his heirs  by  succession (see p. 272 of Mulla’s Principles of Hindu Law 14th Ed).   A person  who  for  the  time  being  is  the  sole  surviving coparcener  is  entitled  to  dispose  of  the   coparcenary property  as if it were his separate property.  He may  sell or  mortgage the property without legal necessity or he  may make a gift of it.  If a son is subsequently born to him  or adopted  by  him, the alienation, whether it is  by  way  of sale,  mortgage or gift, will nevertheless stand, for a  son cannot  object to alienations made by his father  before  he was  born  or begotten (see p. 320 ibid.). In  view  of  the above  it cannot be denied that the appellant at present  is the  absolute owner of the property which fell to his  share as a result of partition and that he can deal with it as  he wishes.   There is admittedly no female member in  existence who  is  entitled to maintenance from  the  above  mentioned property  or who is capable of adopting a son to a  deceased coparcener.  Even if the assessee-appellant in future intro- duces a new member into the family by adoption or otherwise, his  present  full  ownership  of  the  property  cannot  be effected.   Such  a new member on becoming a member  of  the coparcenary would be entitled to such share in ’the property as would remain undisposed of by the assessee.  In order  to determine  the  status of the assessee for  the  purpose  of

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income-tax,  we have to look to the realities as they  exist at  present and it would not be correct to project into  the matter  future  possibilities  which  might  or  might   not materalise.  This would indeed (1) [1958] 34 I.T.R. 42. (2) [1970] 76 I.T.R. 467. 713 amount  to  speculation  and the  same  is  not  permissible excursions to the realm of speculation may be legitimate and justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with  the mundane subject of the status of the assessee  for the purpose of the income-tax assessment.  For this  Purpose we  have to look to facts as they exist and emerge from  the record and not to what they may or may not be in future.  As things are at _present in the instant case, there can in our view he hardly any doubt that the assessee is an  individual and not a family. Mr.  Desai  on behalf of the appellant has referred  to  the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil.(1) As considerable reliance has been placed upon that case,  it may  be  necessary to deal with that case, at  some  length. The  dispute  in that case was between parties  governed  by Hindu law and related to watan lands, The pedigree table  of the parties was as under                     DHULAPPA      Punnappa                     Hanamantappa      d. 1901 Gundappa       Narayan d. 1902        d. 1908                    Ramchandra      Bhikkappa      d. 1905      =Gangabai Keshav         Anant        Shankar      Hanmant  Babu d. 1917       adopted       defendant           1930           plantiff Dhulappa’s sons Punnappa and Hanumantappa separated in 1857. The  watan lands in dispute went to the share  of  Punnappa, Narayan, one of the sons of Punnappa, Separated from him  in his  lifetime.  Thereafter Punnappa died in 1901.   Bhikappa died  in  1905, leaving his widow Gangabai and  son  Keshav. Narayan  died issueless, in 1908 leaving two plots of  watan lands.  On the remarriage of the widow of Narayan, those two plots  devolved  by  inheritance  on  Keshav.   Keshav  died unmarried  in 1917.  At that time his nearest heir  was  his collateral  Shankar defendant.  Shankar  obtained  possesion 1928 of the land in dispute, which had been left by Keshav (1)  A.I.R. (30) 1943 P. C. 196. 714 after  bringing a suit, against Gangabai.  In 1930  Gangabai adopted  Anant plaintiff ’as a son to her  deceased  husband Bhikappa.   In  1932 Gangabai as the next  friend  of  Anant brought  suit for possession of the land in dispute  against Shankar.   The trial court decreed the suit.  On appeal  the High  Court dismissed the suit for possession.   On  further appeal  the  Judicial Committee restored the decree  of  the trial  court.   It was held by the Judicial  Committee  that the, power of a Hindu widow to adopt does not come to an end on the death of the sole surviving coparcener.  Neither does it  depend upon the vesting or divesting of the estate,  nor can the right to adopt be defeated by partition between  the coparceners.   The Judicial Committee also held that on  the death  of a sole surviving coparcener a, Hindu joint  family cannot be finally brought to an end while it is possible  in

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nature or law to add a male member to it.  The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member- The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person  other  than his adoptive father if such  estate  has vested  before  the  adoption in some heir  other  than  the adopting mother. The  above  case,  in  our opinion, can  hardly  be  of  any assistance to the assessee-appellant.  As would appear  from the facts of that case, the question involved there  related to  the  adoption  by a widow after the death  of  the  sole surviving  coparcener.   The  question  with  which  we  are concerned,  as  to whether one individual can  constitute  a Hindu   undivided  family,  Was  not  before  the   Judicial Committee  and  it expressed no opinion  on  that  question. According to Mr. Desai it is implicit in that judgment  that from  1917 when Keshav died till 1930 when  Anant  plaintiff was adopted, there was a joint Hindu family even though  the joint  family  consisted  of Gangabai  alone.   We  find  it difficult  to agree with Mr. Desai in this respect As  would appear  from  the facts of that case, Anant was  adopted  by Gangabai as a son of Bhikappa.  It is now firmly established that  the rights of the adopted son relate back to the  date of  the adoptive father’s death and the adopted son must  be deemed by a fiction of law to have been in existence as  the son  of  the adoptive father at the time of  latter’s  death (see  v. 543 of Mullah’s Principles of Hindu Law 14th  Ed.). This  principle of relation back is subject to  certain  ex- ceptions  but we are not concerned with them.  As  Bhikhappa died  in  1905,  Anant  should be deemed  to  have  been  in existence  as  the son of Bhikappa at the time  of  latter’s death  in  1905.  A necessary corollary of the  above  legal fiction  would be that Anant as the adopted ,on of  Bhikappa would  be taken to be in existence during the years 1917  to 1930.  Gangabai consequently cannot be considered to be  the sole  member of the Hindu undivided family during the  above period. There  is  no  merit  in  the  appeal.   It  is  accordingly dismissed with costs. S.C.                               Appeal dismissed. 715