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TMI Blog1941 (7) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... and individual income chargeable to tax as well as income which is not taxable being derived from a jagir. No question now arises as to these classes of income. The problem laid before the High Court for solution has reference only to the income which is derived from the impartible estate and the question is confined to this: whether in respect of that income the assessee is chargeable as an individual? The contention of the assessee is that such income is only chargeable as the income of a Hindu undivided family of which he is the karta or managing member. If so, less super-tax is payable upon it; the Hindu family, as the law stood in the year of assessment, being favourably treated as regards the graduation of the tax. The question as framed by the Commissioner of Income-tax, Punjab, North West Frontier and Delhi Provinces, who is appellant before the Board, was in these terms: "Whether the income of the impartible estate to which the assessee has succeeded by rule of primogeniture prevailing in his family governed by the Mitakshara is chargeable in his hands in the status of 'individual' the assessee being the head of the family consisting of himself and his son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before them any order of assessment or other formal statement in detail of income classified under the different heads mentioned in Section 6 of the Act. In the case stated the Commissioner says only that the income of the impartible estate "comprises mainly rent of property and interest." To this Dalip Singh, J., in his judgment adds: "this latter source is however small and the income consists mainly of rent from house property." There is a reference in a further passage of the judgment to "interest from securities if any" as distinct from income arising from property and coming under Section 9 of the Act. But there is no material before their Lordships to justify them in accepting as a fact that the income of the impartible estate other than that arising from house property is interest receivable on any of the kinds of security mentioned in Section 8. The question as framed refers to the assessee as head of "the family consisting of himself and his sons." The maintenance paid to the younger brother is assumed to be an admissible deduction, as was held in the previous case of 1930. It may be inferred from the Commissioner's language an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the ordinary rule of the Mitakshara. The concluding words of the judgment delivered on behalf of the Board by Lord Dunedin in Baijnath's case* are to that effect, and in that case as well as in the case of Shiba Prasad Singh**, which followed it, "the keynote of the position" is-not that property which is not joint property devolves by virtue of custom as though it had been joint-but that the general law regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line. "The birth right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered." The later cases are to the same effect. Though the co-ownership of the junior member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips think it right to give their decision upon it, especially as they have arrived at a result which will not be affected whether the income in question be found to come under Sec. 8 or Sec. 12. In their Lordships' view the income of an impartible estate is not income of the undivided family but is the income of the present holder notwithstanding that he has sons from whom he is not divided. In its simplest form the question is whether such interest comes to the hands of the assessee as being the person beneficially entitled to it or as being a manager on behalf of himself and others. In Jagadamba Kumari v. Narain Singh**, the last holder had out of the income accumulated considerable property movable and immovable and the question was whether this formed an accretion to the impartible estate by reason that it had been entered in the same books of account as the estate transactions. Lord Buckmaster on behalf of the Board said:- "In fact when the true position is considered there is no accretion at all. The income when received is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d again in 1927 in the Dhalbum case(2), after Baijnath's case(3) in 1921 had set to the doctrine of Surtaj Kuari's case(4) this limit, that it applied to "presently existing rights" but not to chances of succession. The Second Pittapur case(5) was trenched upon in Baijinath's case(3) by saying that "any observations which go to the question of maintenance apart from the question of real right may be treated as obiter dicta" but it was re-stated that the right of a junior member to maintenance was not "of the nature of a real right" as he was not "a person who was in some way an actual co-owner of the estate". In Shiba Prasad Singh's case(6) the Board expressly notice that the ordinary right of a junior male member to maintenance out of the joint family property is incompatible with the custom of impartibility and include it in the reflection "to this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate though ancestral is clothed with the incidents of self-acquired and separate property............ Though the other rights which a co-parcener acquires by birth in joint family pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still be considered as joint in estate with the zamindar in possession. Such was the position of the junior branch in this case under the babuai grant of Dharamner". On the strength of these observations, which they consider to contradict the previous decisions (the Second Pittapur case# and Shiba Prasad Singh's case## in particular), the High Court of Lahore have now held that the members of the joint family have a right to maintenance which arises from their right in the property on the joint family "of which they are co-owners." They consider that the Board had negatived the view that there is no right to maintenance save such as is impressed by custom and conclude that the income of the estate cannot be said to be "the income solely of the incumbent". They say:- "The members of the joint family have the right to receive maintenance from the estate and this right arises because they are owners of the estate and is not a right to maintenance from the joint family, though not from the property-as is the case of female members of a joint family. The distinction is really quite clear: in the one case the female member has a right to maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and practice and it would in many if not in most cases convert a heritage into a burden. If some members have and some have not the right, although all are equally "co-owners" or "joint owners", the difference can only be attributed to custom. If it is custom whose power has superseded the ordinary law and introduced the rule of primogeniture, the unique incidents of single heir succession (so to call it) can have no other origin. What then is the doctrine which the High Court derive from the passage cited from the Gorakhpur case* ? Is it that custom has taken away from some of the junior members their rights of maintenance but left to others those rights of maintenance which the ordinary law would give them in the case of partible property? This was thought by the Madras High Court in the Chemudu case** to have been laid down by the Board's judgment in the Second Pittapur case***, but, as has been already noticed, that judgment is opposed to it. The same doctrine, it may be, is what the High Court of Lahore have discerned in the Gorakhpur judgment. In any view their Lordships think it important to make clear that this theory cannot be accepted. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e latter right cannot be allowed to confound the two. The right to maintenance in the former case is a right of a different character from that of a cosharer to enjoy his share and live upon his own property by way of joint possession. To represent that custom takes away the right to maintenance from some members but leaves it to others does not explain the facts as to impartible estates. The son's right of maintenance out of impartible property cannot be accounted for as an original and separable right untouched when custom takes away his right to joint possession. It is not something that is left after something else has been substracted. It is a different right given sometimes to sons only and sometimes to others in consequence of the impartible character of the property; being sometimes a right of maintenance simply, and sometimes a right to a maintenance grant of lands. In their Lordships' judgment it can only be ascribed to custom as has repeatedly been held. It may be excessive to say that there is no co-parcenary but it is certain that there is no joint possession. It by no means follows, however, that the right is conferred or is available independently of members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittle they may be and to whichever member they be extended-would not be enjoyed or enjoyable by anyone who had ceased to be joint in respect of the estate. In their Lordships' opinion this should not be taken to affirm any disputable doctrine as to the origin of the right of maintenance, or any other doctrine which would make junior members "actual coowners" or the right a "real right" in the sense negatived by the Board in Baijnath's case*. In the Chellapalli case# above-mentioned, the origin of the junior members' right to maintenance was not under discussion: only the amount recoverable and the property to be charged therefore. The character of the right was fully considered, however, and it was said by the Board that "the right to maintenance is primarily a right to be maintained out of the current income of the property in the enjoyment of the party chargeable." Their Lordships will in the present case assume that the sons of the assessee have a right to be maintained by him, that this right arises from the fact that he is the present holder of the impartible estate, and that the right is a right to be maintained out of the current i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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