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PETITIONER: GOWLIBUDDANNA

       Vs.

RESPONDENT: COMMISSIONER OF INCOME-TAX, MYSORE,BANGALORE

DATE OF JUDGMENT: 10/01/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. SIKRI, S.M.

CITATION:  1966 AIR 1523            1966 SCR  (3) 224  CITATOR INFO :  R          1970 SC  14  (8,9)  R          1970 SC 343  (3)  R          1971 SC  33  (8)  D          1975 SC 498  (4)  F          1976 SC 109  (14,15,33,36,39)  R          1978 SC 504  (7)  R          1985 SC 716  (7)  RF         1988 SC 845  (7)

ACT: Income  Tax  Act, 1922 (11 of 1922),  s.  3-Hindu  undivided family--  Whether includes joint family with  one  surviving male member and female members.

HEADNOTE: B,  his wife, his two unmarried daughters and the  appellant who  was B’s adopted son, were members of a Hindu  undivided family.   In  respect  of the income from  dealings  of  the family, B was assessed during his life-time in the status of a  manager of the Hindu undivided family.  After  his  death for the assessment year 1951-52, the Income-tax Officer  the appellant  on the basis that the income was that of a  Hindu undivided  family and rejected the latter’s contention  that he  should  be  assessed as an  individual.   The  order  of assessment   was  confirmed  by  the   Appellate   Assistant Commissioner,  the Tribunal and on a reference, by the  High Court. It  was  contended  on  behalf of  the  appellant  that  the expression  ’Hindu  undivided family’ used in s.  3  of  the Income Tax Act, 1922, means a Hindu     coparcenary and when on the death of one out of two co-parceners the entire property devolves  upon  a single co-parcener, asssesment  cannot  be made of   the  surviving  co-parcener, in the  status  of  a Hindu undivided family.  Alternatively it was contended that even  if  the  entity ’Hindu undivided family’ in  s.  3  is intended to mean a Hindu joint family. a sole surviving male member of the family, even if there be widows in the  family entitled to maintenance, may only be assessed as an  indivi- dual. HELD  : Property of a Joint family does not cease to  belong to the family merely because the family is represented by  a

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single co-parcener who possesses rights similar to those  of an  owner  of property.  In the present  case  the  property which  yielded  the income originally belonged  to  a  Hindu undivided  family.   On the death of B although  the  family which  included a widow and females born in the  family  was represented  by the appellant alone, the property  continued to  belong  to  the undivided  family  and  income  received therefrom  was  taxable  as income of  the  Hindu  undivided family. [234 D] Under  s. 3 of the Act, it is not a Hindu coparcenary but  a Hindu  undivided family which one of the assemble  entities. 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 and includes only those persons who acquire by birth  a  status  in the  joint  or  co-parcenary  property. Therefore there may be a Joint Hindu family consisting of a, single  male member and widows of deceased of  co-parceners. [227 A] There  was no force in the alternative plea that there  must be  at  least  two male members to form  a  Hindu  undivided family as a taxable entity.  The expression ’Hindu undivided family’  in  the Act is used in the sense in which  a  Hindu joint family is understood in Hindu law.  Under the                             225 Hindu system of law a joint family consist of a single  male member  and  widows of deceased male members  and  there  is nothing in the Act to indicate that a Hindu undivided family as  an assessable entity must consist of at least  two  male members. [231 E] Kalyanji  Vithaldas & Others v. C.I.T., Bengal, 5 I.T.R.  90 (64 I.A. 28) C.1.7’., Bombay v. Gomedalli Lakshminarayan,  3 I.T.R.  367;  ln  re Moolji Sicka & others,  3  I.T.R.  123; C.I.T.  v.  A. P. Swamy Gomedalli, 5 I.T.R.  416;  Attorney- General of Ceylon v. A. R. Arunachalam Chettiar and  others, L.R. [1957] A.C. 540; 34 I.T.R. Supp. 42, discussed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 328 of 1965. Appeal  from the judgment and order dated June 20,  1962  of the Mysore High Court in Income-tax Reference Case No. 15 of 1961. K.   Srinivasan and R. Gopalakrishnan, for the appellant. A.   V. Viswanatha Sastri, R. Ganapathy lyer and R. N. Sach- they, for the respondent. S.  T.  Desai,  R.  P.  Kapur for  I.  N.  Shroff,  for  the intervener. The Judgment of the Court was delivered by Shah, J. One Buddappa, his wife, his two unmarried daughters and  his  adopted  son  Buddanna were  members  of  a  Hindu undivided  family.   Buddappa  died on  July  9,  1952.   In respect of the business dealings of the family, Buddappa was assessed during his life-time in the status of a manager  of the Hindu undivided family.  For the assessment year 1951-52 the Additional Income-tax Officer, Raichur assessed Buddanna in respect of the income of the previous year which ended on November 8, 1950 as a Hindu undivided family under the title "Sri  Gowli  Buddappa (deceased) represented  by  his  legal successor Sri Gowli Buddanna, On Mills Owner, Raichur".  The order of assessment was confirmed in appeal by the Appellate Assistant  Commissioner, subject to the variation  that  the assessment  was  made  under the  title  "Buddanna  a  Hindu undivided   family".   The  Income-tax  Appellate   Tribunal

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confirmed the order of the Appellate Assistant Commissioner.  The  Tribunal then referred the following questions of  law to,  High Court of Mysore for opinion under s. 66(1) of  the Indian Income-tax Act :               (i)   Whether   the   sole   male    surviving               coparcener  of  the Hindu  joint  family,  his               widowed mother and sisters constitute a  Hindu               undivided  family  within the meaning  of  the               Income-tax Act ?               226               (ii)  Whether the assessment of the income  in               the  hands’ of the Hindu undivided family  was               correct ?               (iii) Whether    the    Appellate    Assistant               Commissioner  was  entitled  to  correct   the               status ?" The  High Court recorded answers in the affirmative  on  all the  questions.  With certificate granted by the High  Court under  s.  66-A of the Indian Income-tax Act,  Buddanna  has appealed to this Court. Before the Appellate Assistant Commissioner it was contended by Buddanna that he could in law have only been assessed  as an individual and that the Income-tax Officer was  precluded by  virtue of the proviso to s. 26(2) to pass the order  for assessment for the year 1951-52 against him.  The  Appellate Assistant  Commissioner and the Appellate Tribunal  rejected that contention. Buddappa  was a resident of and carried on business at  Rai- chur  which  before  January 26, 1950, formed  part  of  the territory of H.E.H. the Nizam.  The joint family of Buddappa and Buddanna was governed by the Mitakshara School of  Hindu law,  and there was at the material time no  legislation  in force  in  the  territory by which on the death  of  a  male member in a joint Hindu family interest in the family estate devolved upon his widow.  Such a widow had therefore only  a right to receive maintenance from the estate. Counsel  for the appellant urged that the expression  "Hindu undivided family" used in s. 3 of the Income-tax Act a Hindu coparcenary  and  when  on  the death  of  one  out  of  two coparceners  the  entire  property devolves  upon  a  single coparcener,  assessment  cannot  be made  on  the  surviving coparcener  in  the  status of  a  Hindu  undivided  family. Alternatively,  it  was contended that even  if  the  entity Hindu  undivided  family  in the  charging  section  of  the Income-tax  Act  is intended to mean a Hindu  joint  family, there  must be at least two male members in the family,  and where there are not two such members the sole surviving male member  of the family, even if there be widows  entitled  to maintenance out of the estate, may be assessed in the status of  an  individual,  and not of a  Hindu  undivided  family, unless , . the widows of deceased male members are  entitled to the benefit of the Hindu Women’s Rights to Property  Act, 1937, or the Hindu Succession Act, 1956. 227 The  first contention is plainly unsustainable.  Under s.  3 of  the Income-tax Act not a Hindu coparcenary but  a  Hindu undivided family is one of the assessable entities.  A Hindu joint family consists of all persons lineally descended from a  common ancestor, and includes their wives and  un-married daughters.  A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire 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.   Therefore there  may  be a joint Hindu family consisting of  a  single

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male member and widows of deceased coparceners.  In Kalyanji Vithaldas & Others v. Commissioner of Income-tax, Bengal(1), delivering  the  judgment  of the  Judicial  Committee,  Sir George Rankin observed:               "The  phrase "Hindu undivided family" is  used               in  the  statute  with reference  not  to  one               school  only of Hindu law but to all  schools;               and  their  Lordships think it  a  mistake  in               method  to  begin by pasting  over  the  wider               phrase   of   the   Act   the   words   "Hindu               coparcenary",  all  the more that  it  is  not               possible to say on the face of the Act that no               female can be a member." The  plea  that there must be at least two male  members  to form  a Hindu undivided family as a taxable entity also  has no  force.  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 personal  law  of  Hindus. Under the Hindu system of law a joint family may consist  of a  single male member and widows of deceased  male  members, and  apparently the Income-tax Act does not indicate that  a Hindu undivided family as an assessable entity must  consist of at least two male members. Counsel  for  the  appellant said  that  there  are  certain intrinsic  indications  in  the annual  Finance  Acts  which support  the contention that the income received or  arising from  property in the hands of a sole surviving male  member in  a joint Hindu family, even if there be females having  a right  to  maintenance out of that property, is  taxable  as income  of an individual, and not of the family.  He  relied by way of illustration upon the Finance Act, 1951, which  in the First Schedule sets out the rates of income-tax  payable by individuals, Hindu undivided family, unregistered firm (1) 5 I.T.R. 90=L.R. 64 I.A. 28. 228 and other association of persons.  The relevant part of  the First Schedule prescribing rates of tax is as follows "Provided that-               (i)   no  income-tax  shall be  payable  on  a               total  income which, before deduction  of  the               allowance, if any, for earned income, does not               exceed the limit specified below;               The  limit  referred to in the  above  proviso               shall be-               (i)   Rs.  7,200  in the case of  every  Hindu               undivided family which satisfies as at the end               of  the previous year either of the  following               conditions, namely :               (a)   that   it  has  at  least  two   members               entitled  to claim partition who are not  less               than 18 years of age; or               (b)   that   it  has  at  least  two   members               entitled to claim partition neither of whom is               a  lineal descendant of the other and both  of               whom are not lineally descended from any other               living member of the family; and               (ii) Rs. 3,600 in every other case." But  the.  Schedule sets out the limits of exempted  income: it  does  not state or imply that a Hindu  undivided  family must  consist  of  at least two members  entitled  to  claim partition.   The  text  of  the  clause  furnishes  a  clear indication to the contrary. Reliance was also placed upon the form of "Return" prescrib- ed  under the Rules, which by s. 59 of the  Income-tax  Act, 1922 have effect as if enacted in the Act.  Part IIIA of the

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Form  prescribes certain particulars to be  incorporated  in the case of a Hindu undivided family, viz. names of  members of  the  family  at the end of the previous  year  who  were entitled to claim partition, relationship, age at the end of the  previous  year  and  remarks, but  thereby  it  is  not intended  that  a Hindu undivided family  as  an  assessable entity does not exist so long as there are not at least  two or  more members entitled to claim partition.  The  informa- tion  is required to be given in Part MA of the Form  merely to  enable the Income-tax Officer to consider which  of  the two  parts  of  the proviso in the  First  Schedule  to  the relevant  Finance Act prescribing the limit of exemption  in respect of the Hindu undivided family applies. 229 Sub-section (1) of s. 25-A on which reliance was placed also does not imply that a Hindu undivided family must consist of more male members than one.  The subsection only  prescribes the  procedure  whereby the members of a  family  which  has kither  to been assessed in the status of a Hindu  undivided family  may  obtain  an  order that  they  may,  because  of partition  of  the joint status, be  assessed  as  separated members.  ’Me clause is purely procedural: it does not enact either  expressly or by implication that a  Hindu  undivided family assessed as a unit must consist of at least two male, members who are capable of demanding a partition. Counsel  for  the  appellant  placed  strong  reliance  upon certain  observations  of  the  Judicial  Committe  in   the judgment  in  Kalyanji  Yithaldas’s case(1)  in  which  they disapproved  of the view expressed by the Bombay High  Court in   Commissioner   of  Income-tax   Bombay   v.   Gomedalli Lakshminarayan (2 ). In the case decided by the Bombay  High Court  a  joint family consisted of a father and a  son  and their respective wives.  The father died, and in the year of assessment the joint family consisted of the son, his mother and his wife.  In dealing with the question referred by  the Commissioner  of Income-tax whether the income  received  by the  son should be regarded as his individual income  or  as the  income of a Hindu undivided family for the  purpose  of assessment to super-tax under the Indian Income-tax Act, the Bombay High Court held that the expression "Hindu  undivided family"  as  used in the Income-tax  Act  includes  families consisting  of  a  sole surviving  male  member  and  female members  entitled  to  maintenance, and the  income  of  the assessee  should  therefore be treated as the  income  of  a Hindu  undivided  family.  In Kalyanji  Vithaldas’s  case(1) which dealt with a group of appeals from the judgment of the Calcutta  High Court in In re Moolji Sicka &  Others(3)  the Judicial Committee observed :               "The  High Court (of Calcutta) approached  the               cases   by  considering  first   whether   the               assessee’s   family  was  a  Hindu   undivided               family,  and  in the end left  unanswered  the               question  whether the income under  assessment               was the income of that family.  This is due no               doubt to the way in which the Commissioner had               stated  the questions.  But, after all if  the               relevant  Hindu law had been that  the  income               belonged,.not to the assessee 5 I.T.R. 90 -L.R. 64 T. A. 28. (3)  3 I.T.R. 123. (2) 3 I.T. R. 367. 230               himself,  but  to the assessee, his  wife  and               daughter  jointly, it is difficult to see  how               that  association  of individuals  could  have

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             been  refused  the  description  "Hindu  joint               family"The Bombay  High  Court, on  the  other               hand, inLaxminarayan’s  case having    held               that the       see,his wife and mother  were               a Hindu undivided family, arrived too  readily               at  the  conclusion that the  income  was  the               income of the family."               The Judicial Committee further observed               "Under  Section 3 or Section 55 income is  not               to  be  attributed  to any  one  of  the  five               classes  of persons mentioned by any loose  or               extended interpretation of the words, but only               where   the  application  of  the   words   is               warranted    by    their    ordinary     legal               meaning  . . . . In an extra legal sense,  and               even  for  some  purposes  of  legal   theory,               ancestral  property may perhaps be  described,               and  usefully described, as  family  property;               but it does not follow that in the eye of  the               Hindu   law  it  belongs,  save   in   certain               circumstances, to the family as distinct  from               the  individual.   By reason of its  origin  a               man’s  property may be liable to  be  divested               wholly  or  in  part on  the  happening  of  a               particular  event,  or may be  answerable  for               particular  obligations,  or may pass  at  his               death in a particular way; but if, in spite of               all  such facts, his personal law regards  him               as the owner, the property as his property and               the  income  therefrom as his  income,  it  is               chargeable  to income-tax as his, i.e, as  the               income of an individual.  In their  Lordships’               view  it  would  not  be  in  consonance  with               ordinary    notions   or   with   a    correct               interpretation  of the law of the  Mitakshara,               to hold that property which a man has obtained               from  his father belongs to a Hindu  undivided               family  by  reason of his having  a  wife  and               daughters." The  facts of the cases which were decided by  the  Judicial Committee  need  to be scrutinized  carefully.   Before  the Judicial Committee there were six appeals by six partners of the  firm  Moolji  Sicka:  they  were  Moolji,   Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.  Moolji,  Purshottam and  Kalyanji  had each a son or sons from whom he  was  not divided.   But  the  income of the firm,  which  had  to  be assessed to super-tax was the separate 231 income of each of these partners.  Chaturbhuj had a wife and daughter  but  no  son,  and the  income  was  his  separate property.   Kanji and Sewdas, sons of Moolji,  were  married men,  but  neither had a son : they received  by  gift  from Moolji  their respective interests in the firm, and for  the purpose of the case it was assumed that the interest of each was  ancestral  property in which if he had a  son  the  son would  have taken an interest by birth.  But no  son  having been born, the interest of Kanji and Sewdas in the  property was  not  diminished or qualified.  The  Judicial  Committee held that the wife and the daughters of a Hindu had right to maintenance  out of his separate property as well as out  of his  coparcenary interest, but the mere existence of a  wife or  daughter  did not make ancestral property in  his  hands joint.  They observed :               "Interest’  is  a  word  of  wide  and   vague               significance, and no doubt it might be used of

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             a wife’s or daughter’s right to be  maintained               which right accrues in the daughter’s case  on               birth;  but  if the father’s  obligations  are               increased,  his  ownership  is  not  divested,               divided  or impaired by marriage or the  birth               of  a  daughter.   This  is  equally  true  of               ancestral property belonging to himself  alone               as of self-acquired property." The Judicial Committee accordingly held that in none of  the six  appeals  before them could the income  falling  to  the shares  of the partners of a registered firm be  treated  as income  of  a Hindu undivided family and  assessed  on  that footing.   In  the view of the  Judicial  Committee,  income received by four out of the six partners was their  separate income: in the case of the remaining two partners the income was  from sources which were ancestral.  But merely  because the source was held by a member who had received it from his father  and was on that account ancestral, the income  could not  be deemed for purposes of assessment to be income of  a Hindu  undivided family, even though Kanji had a wife and  a daughter,  and  Sewdas  had  a wife who  had  rights  to  be maintained under the Hindu law. In  Gomedalli Lakshminarayan’s case(1) the property was  an- cestral in the hands of the father, and the son had acquired by birth an interest therein.  There was a subsisting  Hindu undivided family during the life-time of the father and that family did not come to an end on his death.  On these  facts the High Court of Bombay held that the income received  from the property was (1) S I.T.R. 367. L10SupCI/66-2 232 liable  to  super-tax in the hands of the son  who  was  the surviving  male member of the Hindu undivided family in  the year  of assessment.  This distinction in the facts  in  the case  then  under  discussion and  the  facts  in  Gomedalli Lakshminarayan’s  case(1) was not adverted to and the  Board observed  in Kalyanji Vithaldas’s case (2) that  the  Bombay High  Court "arrived too readily at the conclusion that  the income  was  the  income  of  the  family."  When  Gomedalli Lakshminarayan’s  case(1)  was  carried  in  appeal  to  the Judicial  Committee, the Board regarded themselves as  bound by the interpretation of the words "Hindu undivided  family" employed  in  the  Indian  Income-tax Act  in  the  case  of Kalyanji  Vithaldas (2) , and observed that since the  facts of the case were not in any material respect different  from the  facts in the earlier case, the answer to  the  question referred  should  be that "the income received by  right  of survivorship  by the sole surviving male member of  a  Hindu undivided  family  can be taxed in the hands  of  such  male member  as  his  own individual income for  the  purpose  of assessment to super-tax under s. 55 of the Indian Income-tax Act,  1922.": Commissioner of Income-tax v. A. P. Swamy  Go- medalli(8). It  may  however be recalled that  in  Kalyanji  Vithaldas’s case(  2 income assessed to tax belonged separately to  four out  of six partners : of the remaining two it was  from  an ancestral  source but the fact that each such partner had  a wife or daughter did not make that income from an  ancestral source  income of the undivided family of the  partner,  his wife  and daughter.  In Gomedalli  Lakshminarayan’s  case(1) the  property from which income accrued belonged to a  Hindu undivided  family and the effect of the death of the  father who  was  a  manager was merely to invest the  rights  of  a manager upon the son.  The income from the property was  and

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continued  to  remain the income of  the  undivided  family. Ibis  distinction  which had a vital bearing  on  the  issue falling  to  be determined was not given effect  to  by  the Judicial Committee in A. P. Swamy Gomedalli’s case(3). A recent judgment of the Judicial Committee in a case  aris- ing from Ceylon-Attorney-General of Ceylon v. A. R.   Aruna- chalam Chetiar and Others (4 ) is in point.  One Arunachalam a  Nattukottai  Chettiar  and his son  constituted  a  joint family governed by the Mitakshara School of Hindu law.   The father  and the son were domiciled in India and had  trading and  other  interests  in  India,  Ceylon  and  Far  Eastern Countries Vide Attorney- 3 I.T. R. 367.         (2) 5 I.T.R. 90-L.R. 64 I.A. 28. (3) 5 I.T.R. 416.         (4) L.R. [1957] A.C. 540:34 I.T.R. Suppl. 42. 233 General v. A. R. Arunachalam Chettiar (No. 1)-(L.R.[1957] A. C.  513).   The undivided son died in 1934  and  Arunachalam became  the sole surviving coparcener in a  Hindu  undivided family  to  which  a  number  of  female  members  belonged. Arunachalam diedin  1938 shortly after the  Estate  Duty Ordinance No. 1 of 1938  came into operation in Ceylon.   By s. 73 of the Ordinance itwas  provided  that   property passing on the death of a member of a Hindu undivided family was  exempt  from payment of estate duty.  At  all  material times,  the  female members of the family had the  right  of maintenance and other rights which belonged to them as  such members.   The widows in the family including the  widow  of the  predeceased  son  had  also  the  power  to   introduce coparceners  in the family by adoption, and that  power  was exercised  after  the death of Arunachalam.  On a  claim  to estate duty in respect of Arunachalam’s estate in Ceylon, it was  held  that Arunachalam was at his death a member  of  a Hindu  undivided family, the same undivided family of  which his  son,  when  alive  was  a  member,  and  of  which  the continuity  was  preserved  after  Arunachalam’s  death   by adoptions  by  the  widows  of  the  family.   The  Judicial Committee observed at p. 543:               "........ though it may be correct to speak of               him  (the  sole surviving coparcener)  as  the               "owner",  yet it is still correct to  describe               that  which  he  owns  as  the  joint   family               property.  For his ownership is such that upon               the  adoption of a son it assumes a  different               quality : it is such too, that female  members               of  the  family (whose members  may  increase)               have  a right to maintenance out of it and  in               some circumstances to a charge for maintenance               upon it.  And these are incidents which arise,               notwithstanding his so-called ownership,  just               because  the  property has been  and  has  not               ceased  to  be joint family  property.....  it               would not appear reasonable to imp-art to  the               legislature the intention to discriminate,  so               long  as the family itself  subsists,  between               property  in the hands of a single  coparcener               and   that  in  the  hands  of  two  or   more               coparceners." Dealing  with the question whether a single  coparcener  can alienate the property in a manner not open to one of several coparceners, they observed that it was,               "can  irrelevant  consideration.   Let  it  be               assumed  that  his  power  of  alienation   is               unassailable: that means no more than that  he               has in the circumstances the power to alienate

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             joint family property.  That is what it is               234               until  he  alienates it, and, if he  does  not               alienate  it,  that is what it  remains.   The               fatal  flaw in the argument of  the  appellant               appeared  to  be  that,  having  labelled  the               surviving   coparcener   "owner",   he    then               attributed  to his ownership such a  congeries               of rights that the property could no longer be               called "joint family property".  The family, a               body  fluctuating in numbers and comprised  of               male  and female members, may equally well  be               said to be owners of the property, but  owners               whose ownership is qualified by the powers  of               the coparceners.  There is in fact nothing  to               be  gained by the use of the word  "owner"  in               this  connexion.  It is only by analysing  the               nature of the rights of the members of the un-               divided family, both those in being and  those               yet  to  be born, that it  can  be  determined               whether  the family property can  properly  be               described as "joint property" of the undivided               family." Property  of  a  joint family therefore does  not  cease  to belong   to  the  family  merely  because  the   family   is represented  by  a single coparcener  who  possesses  rights which an owner of property may possess.  In the case in hand the property which yielded the income originally belonged to a  Hindu  undivided family.  On the death  of  Buddappa  the family which included a widow and females born in the family was  represented  by Buddanna alone but the  property  still continued  to  belong to that undivided  family  and  income received  therefrom  was  taxable as  income  of  the  Hindu undivided family. The  High  Court  was therefore  right  in  recording  their answers referred for opinion. We  may observe that in this case we express no  opinion  on the  question whether a Hindu undivided family may  for  the purpose of the Indian Income-tax Act be treated as a taxable entity when it consists of a single member-male or female. The appeal is dismissed with costs. Appeal dismissed. 235