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PETITIONER: SURJIT LAL CHHABDA

       Vs.

RESPONDENT: COMMISSIONER OF INCOME TAX, BOMBAY

DATE OF JUDGMENT06/10/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH GUPTA, A.C.

CITATION:  1976 AIR  109            1976 SCR  (2) 164  1976 SCC  (3) 142

ACT:      Income  Tax   Act,  1922-Section  2(9)-Hindu  Undivided Family  as   an  assessee-coparcenary  and  Hindu  Undivided Family-In the  absence  of  a  nucleus  whether  H.U.F.  can consist of  one male  member-Presumption of Union of a Hindu family-Composition of H.U.F. whether relevant for assessment in case where property belong to subsisting undivided family or in  case where  property is thrown into common hotchpotch for the  first time-Whether  assessment to be made depending on the  nature and  character  of  the  property  under  the personal law.

HEADNOTE:      The appellant  Surjit Lal was the owner of an immovable property called  "Kathoke Lodge".  He used  to  derive  rent income from the said property in addition to deriving income under other  heads. In  1956, he made a declaration throwing the said  property into  the family  hotchpotch. The  family consisted of himself his wife and an unmarried daughter.      The appellant  contended before  the Income Tax Officer that the  rent income  derived from the said property should be assessed  in the  status of a Hindu Undivided Family. The Income Tax Officer held:           1.   In the  absence of  a nucleus of joint family                property there  was nothing  with  which  the                appellant could mingle his separate property.           2.   There could  not be  a Hindu Undivided family                without   there    being   Undivided   family                property.      An  appeal   filed  before   the  Appellate   Assistant Commissioner was dismissed but on the following grounds:           (1)  After  the   declaration  the  appellant  was                dealing with  the income  of the  property in                the same  way as  before and,  therefore, the                declaration was not acted upon.           (2)  Even assuming  that the  property was  thrown                into the common stock and was therefore joint                family  property,   the  income   from   that                property  could   still  be   taxed  in   the                appellant’s hands  as he  was the  sole  male                member of the family.

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    The  matter   was  further  taken  to  the  Income  Tax Appellate Tribunal  by the  appellant. The Tribunal accepted the declaration as genuine and differed from the A.A.C. that it was  not acted  upon. The  Tribunal  however,  held  that though the appellant had invested his separate property with the character  of joint  family property,  he being  a  sole surviving coparcener continued to have the same absolute and unrestricted  interest   in  the  property  as  before  and, therefore, in  law, the  property had  to be  treated as his separate property.      Thereafter the Tribunal referred the question of law to the High  Court. Before  the High  Court it was contended by the appellant  that it  is open  to a male member of a joint Hindu Family to convert his self-acquire property into joint family property  by throwing  it into the common hotchpotch, and that  it was  not necessary  that  there  should  be  an ancestral nucleus or that there should be more than one male in the  joint family.  On the  other  hand,  the  department contended that  it was  contrary to  the basic  concept of a Hindu undivided  family that a single male alongwith females could form  a joint  Hindu family  and that it was necessary for the  formation of a joint Hindu family that there should be more  than one  male entitled  to claim  partition of the joint family property. 165      The High  Court did not go into the larger question and assumed for  the purpose  of argument that there need not be more than  one male  member for forming a joint Hindu family as a  taxable unit.  The High  Court  held  that  since  the assessee  had   no  son,  there  was  no  undivided  family. According to  the High Court, the case of the appellant fell within  the   ratio  laid  down  by  the  Privy  Council  in Kalyanji’s case  and that  since under the personal law, the right to  the income remained as it was before the appellant made the  declaration, the  income from  Kathoke  Lodge  was liable to be assessed as the appellant’s individual income.      Dismissing an appeal by Special Leave, ^ HELD:      (1) Even  in the  absence of  an antecedent  history of jointness, the  appellant could  constitute  a  joint  Hindu Family with  his wife  and unmarried daughter. True that the appellant could  not constitute  a coparcenary with his wife and unmarried  daughter but under the Income Tax Act a Hindu undivided family, not a coparcenary is taxable unit. A Hindu coparcenary is  a much  narrower body than the joint family. [170F, 171B]      (2) The  joint family  with all  its  incidents,  is  a creature of  law and  cannot be  created by  act of  parties except to  the extent  to which a stranger may be affiliated to the  family by  adoption. The appellant, however, was not by contract seeking to introduce in his family strangers not bound to  the family  by the  tie of  a sapindaship. That it does not  take more  than one  male to  form a  joint  Hindu family with females, is well established. [172A & G]      (3) The  contention of  the Department that since prior to the  declaration. the  family hotchpotch  in the  instant case was empty and there was nothing with which the property or  its   income  could   be  blended   and  therefore,  the declaration is  ineffective to  convert that  property  into joint family  property was  not raised  before the Tribunal, and the  same was  not pressed  in the  High Court.  It was, therefore, not  open to  the department  to take before this Court a  contention which  in the first place does not arise out of  the reference  and which the department’s counsel in

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the High Court raised but did not press.                                             [173G-H, 174A-C]      (4) The  cases of  Kanji and  Sewdas in Kalyanji’s case furnish a  near parallel  to the  present case.  Though  the property in  their hands was assumed to be ancestral, income which Kanji and Sewdas received from it was treated as their separate property,  as neither  of them  had a son who could take interest  in the  ancestral property by birth. Applying that analogy,  even if Kathoke lodge were to be an ancestral asset, its  income would  still have  to be  treated as  the appellant’s separate  property as  he had  no son  who could take interest  in that  property  by  birth.  The  ratio  of Kalyanji’s case would, therefore, apply to the instant case. The reason  why the  case of  Kanji and  Sewdas furnished  a close parallel is the very reason for which their cases were held by  this  Court  to  be  distinguishable  from  Lakshmi Narain’s case.  In Lakshmi  Narain’s case  the property  was ancestral in  the hands  of the father, the son had acquired an interest  by birth  therein there  was a subsisting Hindu Undivided family during the lifetime of the father and since that family  did not  come to  an end  on the  death of  the father, the  Bombay High  Court rightly held that the income continued to  be the  income of  the joint  family  and  was liable to  be taxed  as such. The property of a joint family 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.                              [176-D-G, 177A, 178, G-H, 179A]      (5) There  are thus two classes of cases each requiring a different approach. In cases where the property belongs to a subsisting undivided family the property does not cease to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of  property may  possess, or  for that matter even if the family  for the  time being  consists only  of widows of deceased coparceners.  In cases  where the  property did not belong  to   a  subsisting  undivided  family,  whether  any property has acquired the 166 character  of   joint  family   property  has  acquired  the character of  joint family  property  in  the  hands  of  an assessee depends  on the  composition of the family. A joint Hindu family can consist of a man, his wife and daughter but the mere  existence of  a wife  or daughter will not justify the assessment  of income  from the joint family property in the status  of the  head as  a manager  of the joint family. Once it  is realised  that there are two distinct classes of cases which  require a  different approach there would be no difficulty  in   understanding  the   implications  of   the apparently conflicting  tests evolved as guides for deciding the two  classes of cases. Kathoke Lodge was not an asset of a pre-existing  joint family.  It became  an item  of  joint family property  for the first time when the appellant threw what was  his separate  property into the family hotchpotch. The appellant  had no  son. His  wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke  Lodge while  it was his separate property. Their rights in that property are not enlarged for the reason that the property  was thrown  into the  family  hotchpotch.  Not being co-parceners  of the  appellant, they  have neither  a right by  birth in  the property  nor the  right  to  demand partition nor  indeed the  right to  restrain the  appellant from alienating the property for any purpose whatsoever. The property which  the appellant  has put into the common stock may change  its legal  incidence on  the birth  of a son but

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until that  event happens, the property in the eyes of Hindu Law is  really his.  He can  deal with  it as  a full owner, unrestrained by considerations of legal necessity or benefit of the  estate. He may sell it mortgage it or make a gift of it. Even  a son  born or  adopted after the alienation shall have to take the family hotchpotch as he finds it.                           [180-G, H, 181 A-D, 182-E-H, 183A]      (7) Since the personal law of the appellant regards him as the  owner of  Kathoke lodge  and the income therefrom as his income  even after  the property  was  thrown  into  the family hotchpotch,  the income would be chargeable to income tax as  his individual  income and  not that  of the family. [183B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1819- 1821 of 1970.      Appeals by  Special Leave  from the  Judgment and Order dated the  8/9th July  1969 of  the High  Court at Bombay in Income Tax Reference No. 29 of 1963.      G.C. Sharma, O.P. Dua, Annoop Sharma and P.K. Mukherjee for the Appellants.      S.T.  Desai,   P.L.  Juneja  and  S.P.  Nayar  for  the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, J.-The  appellant, Surjit Lal Chhabda, had three sources  of income.  He had  a share in the profits of two  partnership  firms,  he  received  interest  from  Bank accounts and  he received  rent from  an immovable  property called  "Kathoke   Lodge".  These   were  his  self-acquired properties and until the assessment year 1956-57, he used to be assessed  as an  individual  in  respect  of  the  income thereof. On  January 26,  1956 he  made a  sworn declaration before a  Presidency Magistrate in Bombay that he had thrown the property  Kathoke Lodge  into the  ’family hotchpot’  in order to  impress that  property with the character of joint family property  and that  he would be holding that property as the  Karta  of  the  joint  Hindu  family  consisting  of himself, his wife and one child. That child was an unmarried daughter.      In  the   assessment  proceedings   for  1957-58,   the appellant contended that since he had abandoned all separate claims to Kathoke Lodge, 167 the income  which he  received from  that property should be assessed in  the status  of a  Hindu Undivided  Family.  The income-tax authorities and the Income-tax Appellate Tribunal rejected that contention for varying reasons. The Income-tax Officer held  that in  the absence  of a  nucleus  of  joint family property,  there was nothing with which the appellant could mingle  his separate property and secondly, that there could not  be a  Hindu undivided  family without there being undivided family  property. The appellant carried the matter in  appeal  to  the  Appellant  Assistant  Commissioner  who differed from  the Income-tax Officer on both the points but dismissed the  appeal on  two other grounds. The A.A.C. held that even  after the  declaration, the appellant was dealing with the  income of  Kathoke Lodge in the same way as before which showed  that the  declaration was  not acted  upon and secondly, that  even assuming  that the  property was thrown into  the  common  stock  and  was  therefore  joint  family property, the income from that property could still be taxed in the  appellant’s hands  as he was the sole male member of

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the family. The Tribunal accepted the declaration as genuine and differed from the A.A.C.’s finding that it was not acted upon. The  appellant, according  to the  Tribunal,  was  the Karta of  the joint Hindu family and it was irrelevant as to how he  dealt with  the joint  family income.  The  Tribunal however held  that the  appellant had  invested his separate property with  the character  of joint  family property,  he being a sole surviving coparcener continued to have the same absolute and unrestricted interest in the property as before and therefore, in law, the property had to be treated as his separate property.      The appellant  moved the  Tribunal for  referring  five questions to the High Court while the respondent applied for the reference  of one  other question. The Tribunal referred the following  question only  for the  opinion of the Bombay High Court under section 66(1) of the Income-tax Act, 1922:           "Whether, on the facts and in the circumstances of      the case,  the income  from property  known as ’Kathoke      Lodge’ was  to be  assessed separately as the income of      the Hindu  undivided family  of which  the assessee was      karta?"      In the  High Court,  it was  contended on behalf of the appellant that  it is open to a male member of a joint Hindu family to  convert his  self-acquired  property  into  joint family property  by throwing  it into  the common  hotchpot; that for  effectuating this  purpose it is neither necessary that there  should be  an ancestral  or joint family nucleus nor that  there should  be more  than one  male in the joint family; and  since Kathoke  Lodge  was  impressed  with  the character of  joint family  property, its income belonged to the joint Hindu family of which the appellant was the Karta, the other members being his wife and unmarried daughter.      On the other hand, the Department contended that it was contrary to  the basic  concept of  a Hindu Undivided Family that a  single male  along with  females could  form a joint Hindu family; that though a joint Hindu family could include a wife and unmarried daughters, a 168 sole male  member could  not constitute a joint Hindu family along with  females; and  that  it  was  necessary  for  the formation of  a joint Hindu family that there should be more than one  male capable  of claiming  partition of  the joint family property.  In the  alternative, it  was urged  by the Department that  a single  male could  form  a  joint  Hindu family along  with a  coparcener’s widow  who is  capable of making an  adoption to her deceased husband but not with his own wife  and unmarried  daughter.  The  argument  that  the existence of  ancestral or  joint  family  property  was  an essential  pre-requisite   to  throwing   the  self-acquired property into  the common  stock  was  raised  but  was  not pressed in the High Court.      On these  contentions, the  real controversy before the High Court  was whether a single male can form a joint Hindu family with his wife and unmarried daughter; if yes, whether the Karta  of such  a family  can impress  his self-acquired property with  the character  of joint  family  property  by throwing it  into the  family hotchpot; and, lastly, whether the income of such property can be assessed as the income of the joint  family. The  High Court  did not enter into these questions and made its task simple by saying:           "Several authorities  were referred  to on  either      side in  support of their respective contentions. We do      not, however,  propose in deciding this reference to go      into the  larger question as to whether the property of      the  assessee,   which  was   originally  self-acquired

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    property, assumed  the character  of a  Hindu undivided      family property,  as to  what are  the incidents  of  a      Hindu  undivided   family  property   and  under   what      circumstances  can   separate  property   become  Hindu      undivided family property. Some of these questions have      been directly  answered in  the authorities  which were      cited before us.           "The question referred is confined to the ’income’      from Kathoke  Lodge. We would, therefore, without going      into  these   larger  questions,  prefer  to  rest  our      decision on the short point whether the income from the      property known  as Kathoke  Lodge after the declaration      was the  income of a Hindu undivided family and in this      respect whether  the principle  laid down  by the Privy      Council in Kalyanji’s case was correctly applied." The High  Court assumed  for the  purposes of  argument that there need  not be  more than  one male member for forming a joint Hindu  family as a taxable unit and that a joint Hindu family could  lawfully consist  of a single male member, his wife and  unmarried daughter.  On these assumptions the High Court concluded  that Kathoke  Lodge, from  the date  of the declaration by  which it  was thrown  into the common stock, was the Property of the Hindu undivided family. It, however, held:           "But the  assessee has  no son  and  therefore  no      undivided family. His ownership of the property and its      income in  fact remains the same as before. The fact of      the existence of a wife or of a wife and daughter would      make no difference 169      to his  ownership of that property... His position as a      member of  the joint family after the declaration would      be the same as that of a sole surviving coparcener, but      it is  now settled  law that  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......That  is the  position which the      assessee held  so far  as his property is concerned. So      far as  the income  is concerned,  he has  the complete      power of  disposal over  the income  and, even assuming      that he  is the karta of a joint Hindu family, there is      no one  who can question his spending, i.e., whether or      not it  is for  legal necessity  or  other  justifiable      purpose. If then, his right to the income remains under      his personal  law the same as it was before he made the      declaration, the  question  arises  whether  under  the      Income-tax Act  it must be held to be the income of the      karta of  the Hindu undivided family. That is precisely      the question  which the  Privy Council answered against      the assessee  in Kalyanji’s  case.....In  our  opinion,      therefore, the  assessee’s  case  would  fall  squarely      within the  principle enunciated by their Lord ships of      the Privy Council in Kalyanji’s case and upon that view      the income in the hands of the assessee would be liable      to be assessed as his individual income." The Privy Council decision on which the High Court relies is Kalyanji Vithaldas  v. Commissioner  of  Income-tax.(1)  The judgment of the High Court is reported in 75 I.T.R. 458.      Before examining  the  validity  of  the  High  Court’s reliance on  Kalyanji’s case  and  the  correctness  of  its conclusion that  the instant  case falls within the ratio of that decision,  it  is  necessary  to  have  regard  to  the principles of  Hindu Law  governing joint families. The High Court did not examine those principles, calling them "larger questions", and  preferred wholly to rely on, so to say, the

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magic touch  of Kalyanji’s  case. It  assumed that  a  joint family may  consist of  a single  male, a  wife and daughter which means  that it assumed that the appellant was a member of a  joint Hindu family consisting of himself, his wife and daughter. However,  in the  very next  breath the High Court concluded: "But  the assessee  has no  son and  therefore no undivided family." An examination of fundamentals might have saved the  High Court  from the  inconsistency that a single male can  constitute a  "joint family"  with  his  wife  and daughter but  if that  male has  no son,  there  can  be  no "undivided family".  In the  first place,  joint family  and undivided family  are synonymous  terms. Secondly,  when one says that  a joint  Hindu family  consists of a single male, his wife and daughter, one implies necessarily that there is no son. If there were a son, there would be two males.      For our  limited purpose,  fundamentals do not any more require a  study of  Sastric texts, digests and commentaries because judicial  decisions rendered  over the  last century and more have given a legalistic form to what was in a large measure a mingling of religious and 170 moral edicts  with rules  of positive laws. Hindu law today, apart  from  the  piecemeal  codification  of  some  of  its branches like  the laws  of marriage,  succession, minority, guardianship, adoption  and maintenance  is Judge-made  law, though that  does not  detract from  the juristic  weight of Smritis like  the Yajnavalkya Smriti nor from the profundity of Vijnaneshwara’s  Commentary on  it, the  critique bearing the humble title of ’Mitakshara’.      The appellant  is governed  by the Mitakshara school of Hindu law  but that is not of any particular consequence for the purposes  of this  appeal. The  differences between  the Mitakshara and  Dayabhaga  schools  on  the  birth-right  of coparceners and  the rules of inheritance have no bearing on the issues  arising in  this  appeal,  particularly  on  the question whether  a single  male can  constitute a  joint or undivided family  with his  wife and  unmarried daughter.  A joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally  joint in food, worship and estate. In both systems,  the  property  of  joint  family  may  consist  of ancestral  property,   joint  acquisitions   and   of   self acquisitions thrown  into  the  common  stock(1).  In  fact, whatever be  the school  of Hindu  law by  which a person is governed, the basic concept of Hindu undivided family in the sense of who can be its members is just the same.      Section 2(9)  of the  Income-tax Act,  1922  defines  a "person" to  include inter  alia a "Hindu undivided family". Under sections  3 and  55 of  that Act,  a  Hindu  undivided family is  a taxable unit for the purposes of income-tax and super-tax. The  expression ’Hindu  undivided  family’  finds reference in  these and other provisions of the Act but that expression is  not defined  in the  Act. The  reason of  the omission evidently  is that  the expression has a well-known connotation under  the Hindu  Law and being aware of it, the legislature did not want to define the expression separately in the  Act.  Therefore,  the  expression  ’Hindu  undivided family must  be construed  in the sense in which it is under stood under the Hindu law(1).      There  is   no  substance  in  the  contention  of  the respondent that  in the  absence of an antecedent history of jointness, appellant  cannot constitute a joint Hindu family with his  wife and  unmarried daughter.  The  lack  of  such history was  never before  pleaded and not only does it find no support  from the  record but  such an assumption ignores the plain  truth that  the joint and undivided family is the

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normal condition of Hindu society. The presumption therefore is that  the members of a Hindu family are living in a state of  union,   unless  the  contrary  is  established.(3)  The strength of  the presumption  may vary  from  case  to  case depending upon the degree of relationship of the members and the farther one goes from the founder of the family, the 171 weaker may  be the presumption. But, generally speaking, the normal state  of every  Hindu family  is joint  and  in  the absence of proof of division, such is the legal presumption. Thus, a  man who  separates from his father or brothers may, nevertheless continue  to be  joint with  the members of his own branch. He becomes the head of a new joint family, if he has a  family, and  if he obtains property on partition with his father and brothers, that property becomes the ancestral property of his branch, qua him and his male issue.      It is  true that  the  appellant  cannot  constitute  a coparcenary with  his wife  and unmarried daughter but under the  Income-tax   Act  a   Hindu  undivided  family,  not  a coparcenary, is  a taxable  unit. 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 and  these are  the sons, grandsons and great-grandsons  of the holder of the joint property for the time  being, that  is to say, the three generations next to the  holder in  unbroken male  descent. Since  under  the Mitakshara Law,  the right to joint family property by birth is vested  in the  male issue only, females who come in only as heirs to obstructed heritage (sapratibandha days), cannot be coparceners.  But we  are concerned  under the Income-tax Act with  the question  whether  the  appellant’s  wife  and unmarried daughter  can with  him  be  members  of  a  Hindu undivided family  and not  of a coparcenary. In the words of Sir George  Rankin who delivered the opinion of the Judicial Committee in Kalyanji’s case :           "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  co-      parcenary’, all the more that it is not possible to say      on the face of the Act that no female can be a member."      (p. 95).      Outside the limits of coparcenary, there is a fringe of persons, males  and females,  who constitute an undivided or joint family. There is no limit to the number of persons who can compose  it nor  to their  remoteness  from  the  common ancestor and to their relationship with one another. A joint Hindu family  consists of  persons lineally descended from a common ancestor  and  includes  their  wives  and  unmarried daughters. The  daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The  joint  Hindu  family  is  thus  a  larger  body consisting of  a group  of persons who are united by the tie of sapindaship  arising by birth, marriage or adoption. "The fundamental principle  of the  Hindu  joint  family  is  the sapindaship. Without  that it  is impossible to form a joint Hindu family.  With  it  as  long  as  a  family  is  living together, it  is almost impossible not to form a joint Hindu family. It  is the  family relation,  the sapinda  relation, which distinguishes  the joint  family, and  is of  its very essence."(1) 172      The joint Hindu family, with all its incidents, is thus a creature  of law  and cannot be created by act of parties,

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except to  the extent  to which a stranger may be affiliated to the  family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is no  impediment to  the appellant,  his wife and unmarried daughter forming  a joint Hindu family. The appellant’s wife became his  sapinda on  her marriage  with him. The daughter too, on her birth, became a sapinda and until she leaves the family by  marriage, the tie of sapindaship will bind her to the family  of her  birth. As  said by  Golapchandra  Sarkar Sastri in  his "Hindu Law" (Eighth Ed., p. 240), "Those that are called  by nature  to live  together, continue to do so" and form  a joint  Hindu family.  The appellant  is  not  by contract seeking  to introduce  in his  family strangers not bound to  the family by the tie of sapindaship. The wife and unmarried daughter  are members  of his family. He is not by agreement making  them so.  And as  a Hindu male, he himself can be  the stock  of a  fresh descent  so as  to be able to constitute an undivided family with his wife and daughter.      That it  does not  take more  than one  male to  form a joint Hindu  family with  females  is  well-established.  In Gowli  Buddanna   v.  Commissioner  of  Income-tax,  Mysore, Bangalore(1), one  Buddappa, his  wife,  his  two  unmarried daughters and  his adopted  son Buddanna  were members  of a Hindu undivided family. On Buddappa’s death a question arose whether  the   adopted  son   who  was  the  sole  surviving coparcener could  form a  joint Hindu family with his mother and sisters  and could accordingly be assessed in the status of a manager of the Hindu undivided family. Speaking for the Court, Shah J. observed :           "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." In N.  V. Narendranath v. Commissioner of Wealth-tax, Andhra Pradesh,  Hyderabad(2),  the  appellant  filed  returns  for Wealth Tax  in the  status of a Hindu undivided family which at the  material time consisted of himself, his wife and two minor daughters. The claim to be assessed in the status of a Hindu undivided  family rested  on the circumstance that the wealth returned  consisted of ancestral property received or deemed to  have been  received by the appellant on partition with his  father and  brothers. The  High Court held that as the  appellant’s   family  did   not  have  any  other  male coparcener, the assets must 173 be held  to belong  to him  as an  individual and not to the Hindu undivided  family. That decision was set aside by this Court on  the ground that a joint Hindu family could consist under the  Hindu law  of a  single male member, his wife and daughters and  that it was not necessary that the assessable unit should consist of at least two male members.      In  both   of  these   cases,  Gowli   Buddanna’s   and Narendranath’s the  assessee was  a member of a pre-existing joint family and had, in one case on the death of his father and in  the other  on partition,  become the  sole surviving coparcener. But  the decision in those cases did not rest on the consideration  that there  was an  antecedent history of jointness. The alternative argument in Gowli Buddanna’s case

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(p. 266)  was an  independent argument  uncorrelated to  the pre-existence of  a joint  family. The passage which we have extracted from  the judgment  of Shah  J. in that case shows that the  decision of  this Court  did not  proceed from any such consideration. The Court held in terms categorical that the Hindu  undivided family as an assessable entity need not consist of  at least  two male  members. The same is true of the decision in Narendranath’s case (see p. 886).      Thus the  contention of  the  Department  that  in  the absence of  a pre-existing joint family the appellant cannot constitute a  Hindu  undivided  family  with  his  wife  and unmarried daughter  must fail.  The view  of the  High Court that the  appellant has  "no son  and therefore no undivided family" is  plainly  unsound  and  must  also  be  rejected. Accordingly, the  question whether the income of the Kathoke Lodge can  be assessed  in the  hands of  the appellant as a Karta or  manager of the joint family must be decided on the basis that  the appellant,  his wife  and unmarried daughter are members of a Hindu undivided family.      By the  declaration of  January 26, 1956, the appellant threw Kathoke  Lodge into the family hotchpot abandoning all separate claims  to that  property. The  genuineness of that declaration was accepted by the Tribunal. The High Court too decided the  reference on the footing that the appellant had thrown the property into the common hotchpot and that ‘after the declaration,  the property  .... would  be property of a Hindu undivided  family in  the hands  of the  assessee" (p. 471). Learned  counsel for the Department attempted to raise a new contention before us that there is no such thing under the Hindu  law as  impressing  separate  property  with  the character of  joint, family property, that the only doctrine known in  this behalf  to  Hindu  law  is  the  doctrine  of blending and  since, prior  to the  declaration  the  family hotchpot in  the instant  case was  empty, there was nothing with which  the Kathoke Lodge or its income could be blended and therefore,  the declaration  is ineffective  to  convert that property  into joint  family property.  Learned counsel for the appellant cited several decisions of the High Courts to controvert  the Department’s  contention. But  apart from the merits of the point we ruled that the contention was not open to  the Department. The statement of case framed by the Tribunal shows  that such a contention was not raised before the Tribunal.  The Commissioner  of Income-tax himself asked for the reference of a question to the High 174 Court for  its opinion.  That question  concerns  the  point whether having  regard to  the conduct  of the appellant his self-acquired property  could be  said to  be impressed with the character of joint family property. The question did not cover the  contention raised  before us  on  behalf  of  the Department. But  above all, though an argument was raised in the High  Court on  behalf of  the Department  that for  the operation of  the doctrine of blending it was essential that there should  exist  not  only  a  coparcenary  but  also  a coparcenary property,  learned counsel  who appeared for the Department  in   the  High   Court  "did   not,  after  some discussion,  press   that  there   should   necessarily   be coparcenary property."  This  was  not  a  concession  on  a question of  law in  the sense  as to  what the  true  legal position was.  What the  Department’s counsel  stated in the High Court  was that he did not want to press the particular point. In  our opinion,  it is not open to the Department to take before  us a  contention which  in the first place does not arise  out of  the reference  and which the Department’s counsel in the High Court raised but did not press.

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    Having examined  the true nature of an undivided family under the  Hindu law  and in  view of  the findings  of  the Tribunal and the High Court on the second aspect, two points emerge clear  : Firstly  that the  appellant  constituted  a Hindu undivided  family with his wife and unmarried daughter and secondly  that Kathoke  Lodge which  was the appellant’s separate property  was thrown by him in the family hotchpot. It remains  now to  consider whether  the income  of Kathoke Lodge must  be assessed  in the hands of the appellant as an individual or  whether it  can be  assessed in his status as manager of the Hindu undivided family.      Since the conclusion reached by the High Court that the income  of   Kathoke  Lodge   cannot  be   assessed  in  the appellant’s status  as a  manager  of  the  Hindu  undivided family is  based wholly  on the  decision in Kalyanji’s case and since  that decision  also loomed large in the arguments before us, it is necessary to examine it closely.      The relevant  facts of  that case are these : One Sicka had two  sons, Moolji  and Purshottom.  From his first wife, Moolji had  two sons,  Kanji and  Sewdas both  of whom  were married but neither of whom had a son. From his second wife, Moolji had  a son Mohan Das. Kanji had a wife and a daughter while Sewdas  had a  wife but  no issue.  Moolji, Kanji  and Sewdas separated from one another in about 1919. In the same year Moolji  made gifts  of capital  to  Kanji  and  Sewdas. Moolji continued  to live  jointly with  his second wife and the son  Mohan Das born of her. Purshottom had a wife, a son and a daughter.      There was  another family  of which  the head  was  one Vithaldas. He  had  three  sons,  Kalyanji,  Chaturbhuj  and Champsi. Kalyanji  had a  wife, three  sons and  a  daughter while Chaturbhuj had a wife and daughters.      Moolji and  Purshottom, the  two sons of Sicka, who had already separated from each other started in 1912 a business called  Moolji   Sicka  and   Company  in  partnership  with Kalyanji, the son of Vithaldas. 175 The three  partners employed  their self-acquired properties for the  purpose  of  that  business.  In  course  of  time, Moolji’s  sons   Kanji  and   Sewdas,  and  Vithaldas’  sons Chaturbhuj and  Champsi were taken into the partnership with the result  that by  1930 the partnership came to consist of seven partners : Moolji, his sons Kanji and Sewdas; Moolji’s brother   Purshottom;   and   Vithaldas’s   sons   Kalyanji, Chaturbhuj and  Champsi. The interest of Kanji and Sewdas in the firm  was a  gift from  their father  Moolji and that of Chaturbhuj a  gift from  his brother  Kalyanji. Those of the partners whose  interest in  the firm  was separate property were not  shown to have thrown that property or the receipts therefrom into the common stock.      The Privy  Council had six appeals before it which were filed by the partners of the firm except Chapsi. The appeals related to  the assessment year 1931-32. The controversy was whether the  partners should  each be  assessed to super-tax upon his  share of  the profits  as an individual or whether the six  shares should each be assessed as income of a Hindu undivided family.      Three  partners   out  of   the  six,  namely,  Moolji, Purshotom  and  Kalyanji,  were  each  members  of  a  Hindu undivided family.  Each of these three partners had a son or sons from  whom he  was not  divided. But  the income  which these partners received from the firm was their separate and self-acquired property. Since the income was not thrown into the common  stock, the  Privy Council held that it could not be regarded as the income of the respective joint families.

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    The fourth  partner Chaturbhuj had no son. His interest in the  firm was  obtained from  his  brother  Kalyanji  and therefore the income which he received from his share in the profits of  the firm  was a  self-acquired and not ancestral property. The Privy Council observed that even if Chaturbhuj were to  have a  son, that  son would have taken by birth no interest in  the income which fell to Chaturbhuj’s share and therefore  the   income  was  assessable  in  the  hands  of Chaturbhuj as  his separate income and not that of the joint Hindu family.      According to the Privy Council, in none of the cases of these four partners was the result affected by the fact that any partner  had a  wife and  a daughter  or a wife and more than one  daughter. If  the mere  existence of a son did not make  a   father’s  self-acquired   property  joint   family property, it was untenable that the existence of a wife or a daughter could do so.      In the  case of  the remaining  two partners, Kanji and Sewdas, their interest in the firm was obtained under a gift from  their  father.  The  Privy  Council  assumed,  without deciding the  question, that  such an interest was ancestral property in the hands of the sons so that if either Kanji or Sewdas had  a son,  the son would have taken interest in the property by  birth. But  neither Kanji nor Sewdas had a son. Kanji’s family  consisted of  himself, his wife and daughter while Sewdas’s family consisted of himself and his wife. The Privy Council  held  that  the  wife  and  daughter  may  be entitled to be maintained out of a person’s separate as well as joint family property but the mere existence of a wife or daughter did not make ancestral property joint. 176      The crucial  facts in  Kalyanji’s  case  on  which  the ultimate decision  rested are these : (i) In regard to three partners, Moolji,  Purshottom and  Kalyanji, though  each of them was  the head  of his  joint family  which included  in every case  a son  or sons,  the income  which each received from the  firm was  his separate  and self-acquired property which was  not thrown  into the common stock. (ii) In regard to  Chaturbhuj,   though  he  had  no  son,  that  fact  was irrelevant because  his interest  in the  firm was his self- acquired or  separate property  in which  the son could have taken no interest by birth. (iii) And in regard to Kanji and Sewdas, even if their interest in the firm was assumed to be ancestral property,  the income which they received from the firm was  their separate  property as  neither of them had a son who  could take  interest in  the ancestral  property by birth.      The appeals  of  the  six  partners  before  the  Privy Council fall  into two classes. Those of Moolji, Purshottom, Kalyanji and  Chaturbhuj fall  in one  class while  those of Kanji and  Sewdas fall in another class. There is a point of distinction between  the cases  of the four partners falling within the first class on one hand and that of the appellant on the  other. But  the point  of distinction  is  not  that Moolji, Purshottom  and Kalyanji  had a  son or sons and the appellant has  none, because  though the three partners were heads of  their respective  joint families which included in every case  a son  or sons,  the income  which each received from the  firm was  his separate  and self-acquired property which was  not  thrown  into  the  common  stock.  The  mere existence of  a son or sons in a joint Hindu family does not make the  father’s separate  or self-acquired property joint family property.  Though Chaturbhuj  had no  son  that  fact would  not  by  itself  bring  his  case  on  par  with  the appellant’s because  Chaturbhuj’s interest  in the  firm was

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his separate  property which  also was  not  thrown  in  the common stock.  If the  mere fact that Moolji, Purshottom and Kalyanji had  each a son or sons did not make their separate property joint family property, the mere existence of a wife or  daughter   could  not   bring  about   that  result   in Chaturbhuj’s case.      As contrasted  with the  cases of  these four partners, Kathoke Lodge  which was  once the  separate property of the appellant was  thrown by  him in  the  common  stock,  which raises the  question whether that circumstance is sufficient to justify  the assessment  of the income from that property in the  appellant’s status  as  the  manager  of  the  joint family. On  this point the cases of Kanji and Sewdas furnish a near  parallel. They  did not have to throw their interest in the  firm in  the common stock because that interest was, on assumption, their ancestral property. But even though the property was  ancestral, the income which they received from it was treated as their separate property as neither of them had a  son who could take interest in the ancestral property by birth.  Applying that analogy, even if Kathoke Lodge were to be  an ancestral asset, its income would still have to be treated as  the appellant’s  separate property  as he has no son who  could take  interest in  that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into  the family  hotchpot could  not be  more telling than if that property was his ancestral property. 177      But then  it is  urged by  the learned  counsel for the appellant that  the  Privy  Council  was  in  error  in  its decision on  the nature  of income  received  by  Kanji  and Sewdas from  what was  assumed to  be ancestral property and therefore the  decision on  that aspect  of the matter ought not to  be followed  in determining  the true  nature of the income received  by the  appellant from  Kathoke Lodge. This submission is  founded on  the disapproval  by this Court of certain observations made by the Privy Council in Kalyanji’s case.      The Privy  Council, in its judgment in Kalyanji’s case, referred in  passing to  "Laxminarayan’s case"  and observed that  "The   Bombay  High   Court  on  the  other  hand,  in Lakshminarayan’s case having held that the assessee his wife and mother  were  a  Hindi  undivided  family,  arrived  too readily at  the conclusion that the income was the income of the family". The decision of the Bombay High Court which the Privy Council  had in  mind is  Commissioner of  Income-tax, Bombay v.  Gomedalli Lakshminarayan (3 I.T.R. 367). There is a fundamental  distinction between Lakshminarayan’s case and Kalyanji’s case which, with respect the Privy Council failed to notice.  In Lakshminarayan’s  case the joint Hindu family consisted of  a father,  his wife,  their son  and the son’s wife. The  property of the joint family was ancestral in the hands of  the father  and the son’s had acquired by birth an interest therein.  (See the  Judgment of  Rangnekar J. at p. 369). There  was a  subsisting undivided  family during  the father’s life-time and that undivided family did not come to an end  on the  father’s death.  The same  undivided  family continued after  the death  of the father, with the son, his mother and  his wife  as its  members.  The  effect  of  the father’s death  was merely this that the son, instead of the father, became  the manager  of the joint family. The income from ancestral  property was  the income of the joint family during  the  father’s  life-time  and  after  his  death  it continued to  be the  income of  the self-same joint family. The only change that had come about was that one link in the chain was  snapped by  death. But the death of a member of a

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joint Hindu  family does  not ordinarily  disrupt the  joint family. The Bombay High Court therefore held that the income of the  ancestral property  should be  assessed in the son’s status as  a manager  of the undivided family and not in his individual capacity.  When  Lakshminarayan’s  case  came  up before the Privy Council in appeal(1), it regarded itself as bound by  the interpretation  put in  Kalyanji’s case on the expression "Hindu  undivided family"  as employed in section 55 of  the Indian Income-tax Act and observed that the facts of the  case were not materially different from the facts of Kalyanji’s case.  The Privy  Council therefore  answered the question by  holding 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  purposes  of assessment to  super-tax under  Sec. 55 of the Indian Income Tax Act, 1922".      The decision  of the  Privy Council in Lakshminarayan’s case and  the observations  made by  it in  Kalyanji’s  case regarding the view taken 178 by the  Bombay High  Court  in  Lakshminarayan’s  case  were expressly disapproved  by this  Court at least in two cases. In Gowli  Buddanna’s case(1), after discussing the decisions in Kalyanji’s  case and  Lakshminarayan’s  case  this  Court observed :           "It may  however  be  recalled  that  in  Kalyanji      Vithaldas’s  case   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  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 continued to remain the income of the      undivided family.  This 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."      In Narendranath’s(2) case too this Court disapproved of the Privy  Council decision  in  Lakshminarayan’s  case  and pointed out  that the Privy Council had failed to notice the distinction between  the facts  of Kalyanji’s case and those of Lakshminarayan’s  case in  observing that the Bombay High Court "arrived too readily at the conclusion that the income was the income of the family".      The appellant’s counsel is thus right in his submission that  the   observations  made   by  the  Privy  Council  in Kalyanji’s case  as regards  the correctness  of the  Bombay view in  Lakshminarayan’s case is not good law. In fact, the decision of the Privy Council in appeal from the judgment of the Bombay  High Court  in Lakshminarayan’s  case has itself been disapproved by this Court. But that does not affect the correctness of the Privy Council decision in Kalyanji’s case itself as  regards the  nature of the income received by the six partners  from the  firm. That  part of  the judgment in Kalyanji’s case  has never  been doubted  and is  open to no exception. For  the matter  of that,  the error of the Privy Council’s decision  in Lakshminarayan’s  case  consisted  in overlooking the  factual distinction  between that  case and Kalyanji’s  case,   as  a  result  of  which  the  ratio  of

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Kalyanji’s   case    came   to   be   wrongly   applied   to Lakshminarayan’s case.      The ratio  of Kalyanji’s  case would therefore apply to the instant  case, the parallel being furnished by the cases of Kanji  and Sewdas. But a word of explanation is necessary in the  interests of  clarity. The  reason why  the cases of Kanji and Sewdas furnish a close parallel is the very reason for which  their  cases  were  held  by  this  Court  to  be distinguishable    from     Lakshminarayan’s    case.     In Lakshminarayan’s case  the property  was  ancestral  in  the hands of  the father,  the son  had acquired  an interest by birth therein, there was a subsisting Hindu un- 179 divided family  during the life-time of the father and since that family  did not  come to  an end  on the  death of  the father, the  Bombay High  Court had  rightly held  that  the income continued  to be  income of  the joint family and was liable to  super-tax as  such income.  In regard  to Moolji, Purshottom, Kalyanji  and Chaturbhuj  no such question arose as their  interest in  the firm  was their separate property which was not thrown into the common stock. As regards Kanji and Sewdas,  they were  divided from  their father Moolji at least since  1919 in which year Moolji made gifts of capital to them.  Kanji joined  the firm in 1919 and Sewdas in 1930. The assessment  year in reference to which the dispute arose was 1931-32.  Thus the  gifted property  of which the income was to  be charged  to super-tax  was not  the ancestral  or joint family property of a subsisting Hindu undivided family consisting of Moolji, Kanji and Sewdas. Were it so, the case would have  fallen within  the ratio  of the judgment of the Bombay High  Court in Lakshminarayan’s case. As in the cases of Kanji  and Sewdas,  so here,  the property  of which  the income is  to be  brought to  tax was  not the  joint family property of  a subsisting  Hindu undivided  family which had devolved on  a sole  surviving coparcener.  In  that  latter class of  cases the view has been consistently taken, except for the  decision of  the Privy  Council in Lakshminarayan’s case, that  property of  a joint  family 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. The decision of the Privy Council  in  Attorney  General  of  Ceylon  v.  A.  R. Arunachalam Chettiar  and Others(1),  the decisions  of this Court in  the cases  of Gowli  Buddanna and Narendranath and the decision  of the  Bombay High  Court in Lakshminarayan’s case fall  within that class and are not to be confused with cases like  the one  on hand,  which fall within the rule in Kalyanji’s case.      In  Arunachalam  Chettiar’s  case,  a  father  and  son constituted  a   joint  Hindu   family  along  with  females including the  widow of  a pre-deceased son. On the death of the son  in  1934  the  father  became  the  sole  surviving coparcener. By  a Ceylonese  Ordinance, property  passing on the death of a member of a Hindu undivided family was exempt from payment  of Estate  Duty. On  the death of the father a question arose whether, in view of the ordinance, his estate was liable  to Estate  Duty. The Privy Council held that the father 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  the father’s death by adoptions made by the widows who  were members  of the family. In Gowli Buddanna’s case, there  was a subsisting Hindu undivided family between a father,  his wife,  two unmarried daughters and an adopted son. In  respect of  the income from dealings of the family,

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the father  was assessed  during his life-time in the status of a  manager of the Hindu undivided family. After the death of the  father the  adopted son  contended that he should be assessed as  an individual.  This  contention  was  rejected uniformly at all stages. After examining various authorities including  Kalyanji’s   case,   Lakshminaryan’s   case   and Arunachalam’s case,  this Court  held  that  property  which belongs to a Hindu undivided family does not cease to belong 180 to it  because of the temporary reduction of the coparcenary unit to  a single  individual, who possesses rights which an owner of  property may  possess. A similar view was taken by this Court  in Narendranath’s  case which  raised a question under the  Wealth Tax  Act. Narendranath’s family consisted, at the  material time,  of his wife and two minor daughters. Since the  wealth returned  consisted of  ancestral property received by  him on  partition with his father and brothers, it was  held by  this Court  that his  status was  that of a Hindu undivided family and not that of an individual.      While dealing  with the  question  whether  the  assets which came  to Narendranath’s  share on  partition ceased to bear the character of joint family properties and became his individual property, this Court observed :           "In this  connection, a  distinction must be drawn      between two  classes of  cases  where  an  assessee  is      sought to  be assessed in respect of ancestral property      held by  him :  (1) where property not originally joint      is received  by the assessee and the question has to be      asked whether  it has acquired the character of a joint      family property  in the  hands of  the assessee and (2)      where the property already impressed with the character      of joint  family property  comes into  the hands of the      assessee  as  a  single  coparcener  and  the  question      required to  be considered  is whether  it has retained      the character  of joint family property in the hands of      the assessee  or is converted into absolute property of      the assessee." After  referring   to  Kalyanji’s   case  and  noticing  the observation of  the Judicial  Committee that  income from an ancestral source  does not  necessarily become the income of the undivided  family consisting  of a  man,  his  wife  and daughter, this Court held :           "Different  considerations  would  be  applicable,      where property  already impressed with the character of      joint family  property comes into the hands of a single      coparcener. The  question to be asked in such a case is      whether the  property retains  the character  of  joint      family property  or whether  it sheds  the character of      joint family property and becomes the absolute property      of the single coparcener." In the  result the Court concluded that the case fell within the rule in Gowli Buddanna’s case.      There are  thus two  classes of cases, each requiring a different approach.  In cases  falling within  the  rule  in Gowli Buddanna’s  case,  the  question  to  ask  is  whether property which  belonged to  a subsisting  undivided  family ceases to  have that  character merely because the family is represented by  a sole  surviving coparcener  who  possesses rights which  an owner  of property  may  possess.  For  the matter of  that, the  same question has to be asked in cases where the  family, for the time being, consists of widows of deceased  coparceners  as  in  Commissioner  of  Income-tax, Madras v.  Rm. Ar.  Ar. Veerappa Chettiar(1), so long as the property which was originally of the joint Hindu family 181

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remains in  the hands  of the  widows of  the members of the family and  is not  divided amongst  them. In  cases falling within the  rule in  Kalyanji’s case, the question to ask is whether property  which  did  not  belong  to  a  subsisting undivided family  has truly  acquired the character of joint family property  in the hands of the assessee. In this class of cases, the composition of the family is a matter of great relevance for,  though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will  not justify the assessment of income from the joint family property in the status of the head as a manager of the  joint family.  The appellant’s case falls within the rule in  Kalyanji’s case  since the property, before it came into his  hands, was  not impressed  with the  character  of joint family  property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife and daughter.      Once it is realised that there are two distinct classes of cases  which require a different approach, there would be no difficulty  in  understanding  the  implications  of  the apparently conflicting  tests evolved as guides for deciding the two  classes of  cases. In  Kalyanji’s  case  the  Privy Council observed:           "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 having      a wife and daughters." On the  other hand, in Arunachalam’s case which falls within the  rule  in  Gowli  Buddanna’s  case,  the  Privy  Council observed:           "But 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 182      joint  family   property....  it   would   not   appear      reasonable to  impart 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." Holding that  it was  an  irrelevant  consideration  that  a

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single coparcener  could alienate  the property  in a manner not open  to one  of several  coparceners, the Privy Council said:           "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  joint family      property. That  is what  it is  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 connection. It is only by analysing the      nature of  the rights  of the  members of the undivided      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."      These two  sets of  tests, both  evolved by  the  Privy Council govern  two distinct  sets of  cases and there is no inconsistency between  the two  tests. The  test evolved  in Kalyanji’s case,  not in  Arunachalam’s or  Gowli Buddanna’s case, has to be applied to the instant case.      Kathoke Lodge  was not an asset of a pre-existing joint family of  which the  appellant was  a member.  It became an item of  joint family  property for  the first time when the appellant threw  what was  his separate  property  into  the family hotchpot.  The appellant  has no  son. His  wife  and unmarried daughter  were entitled  to be  maintained by  him from out  of the  income of  Kathoke Lodge  while it was his separate property.  Their rights  in that  property are  not enlarged for  the reason  that the  property was thrown into the family hotchpot. Not being coparceners of the appellant, they have  neither a  right by birth in the property nor the right to  demand its  partition  nor  indeed  the  right  to restrain the  appellant from alienating the property for any purpose whatsoever.  Their prior  right to be maintained out of the  income of  Kathoke Lodge  remains what  it was  even after the  property was thrown into the family hotchpot: the right of  maintenance, neither  more nor less. Thus, Kathoke Lodge may  be usefully  described as  the  property  of  the family after it was thrown into the common stock but it does not follow  that in  the eye  of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a sole surviving coparcener. 183      The property  which the  appellant  has  put  into  the common stock  may change its legal incidents on the birth of a son  but until that event happens the property, in the eye of Hindu  Law, is  really his. He can deal with it as a full owner, unrestrained  by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of  it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten  or adopted after the alienation has no right to challenge the alienation.      Since the  personal law of the appellant regards him as the owner  of Kathoke  Lodge and the income therefrom as his income even  after the  property was  thrown into the family

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hotchpot, the  income would  be chargeable  to income-tax as his individual income and not that of the family.      For these reasons, we dismiss the appeal but there will be no order as to costs. P.H.P.                                     Appeal dismissed. 184