9911796707
TMI Blog1968 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals against the assessments respectively made under the Income-tax Act and the Wealth-tax Act for the assessment years 1960-61 and 1961-62 and against the assessment under the Expenditure-tax Act for 1961-62. In all the appeals the Tribunal sustained the assessment made on the assessee in the status of an individual. The assessee, late R. Sridharan, Was a member Of a Hindu undivided family, along with his father and brothers. On a partition between the assessee, his brothers and father, a block of shares in T. V. Sundaram Iyengar and Sons Private Limited and three other limited companies were allotted to his share. At the time of the partition he was not married. On June 24, 1956, he married an Austrian lady, Rosa Maria Steinbchler, under the Special Marriage Act, 1954. A son, Nicolas Sundaram, was born to them on November 29, 1957. Initially the assessee was assessed to income-tax and wealth-tax in the status of an individual on his own declaration. In 1959-60, the assessee claimed the status of a Hindu undivided family consisting of himself and Nicolas Sundaram. The assessee repeated his claim to be treated as a Hindu undivided family for the assessment years 196061 and 1961- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a joint family and the family owns ancestral or joint family property, then the question referred answers itself in favour of the assessee. The revenue, on the other hand, represented by Mr. Balasubrahmanyan, contending contra, would state that section 21 of the Special Marriage Act, 1954, would not envisage a joint family as is orthodoxically understood in traditional Hindu law as between the assessee and his son, and even otherwise the property in the hands of the assessee which was secured by him at a partition, cannot be treated to be joint family property as is commonly understood. His contention in the main is that there is no substantial evidence to show that Nicolas Sundaram was brought up as a Hindu, and even otherwise the incursions made by the statute law on the personal law of the parties cannot be pressed into service so as to compulsorily recognise Nicolas Sundaram as a Hindu and as a member of a Hindu undivided family and thereby and thereunder recognise the status of the assessee as a Hindu undivided family. The problem posed and the question referred has to be considered in the light of the historic development of the system of joint family amongst Hindus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the family estate. In fact, the principle appears to be that the disqualification is only as regards the sharing of the family estate, but it did not involve the disqualification to be maintained out of that estate. The above principle is unexceptional in so far as Sudras are concerned. But in the case of the twice-born, judge-made law recognised such an illegitimate son of a person belonging to a twice-born class as being entitled to maintenance which could also be made a charge on the joint family property. Such maintenance is in lieu of inheritance : see Vellaiyappa Chetty v. Natarajan approved in Gur Narains Das v. Gur Tahal Das . Though an illegitimate son may not strictly be a coparcener in the Hindu family, yet he has undoubtedly the status of a member of such a family. There is, therefore, abundant authority to hold that even an illegitimate son is a member of the family consisting of the putative father and his status as such cannot be denied even by the twice-born class. If this is so, what would be the status of Nicolas Sundaram in the instant case ? He cannot be called an illegitimate son, because he is the son born of lawful wedlock. Marriage between a member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of matrimony could be inducted into the family and can claim the status of a member thereto and indeed can call for a partition and if an idiot who is disqualified to be a sharer can yet be a coparcener and claim himself to be a member of the joint family, it would be hypertechnical and indeed a refinement without any fineness if it is to be said that a legitimate son born out of lawful wedlock and who is acknowledged by the father to be a Hindu, and who has rights of succession though not under the orthodox Hindu law or under the Hindu Succession Act to the estate of his father, cannot be terminologically called as a member of the family of his father. This discussion apart, Explanation (b) to section 2 of the Hindu Succession Act, 1956, the Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, and the Hindu Minority and Guardianship Act, 1956, whose language is in Pari materia in each of the Acts, provides as follows: " Explanation.- The following persons are Hindus ...... (b) any child, legitimate or illegitimate, one of whose parents is a Hindu...... by religion and who is brought up as a member of the tribe, community, group or family to which such pare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment year in question claimed the status of Hindu undivided family along with his son, Nicolas Sundaram. It is imperative to understand the necessary implications in such a claim made by the assessee. In our view, it obviously means what he says. According to the assessee, his son is in his family and obviously it also reflects his mind that his son is being brought up by him as a Hindu. Cryptically it was contended that there was no evidence that the child was being brought up as a Hindu within the meaning of the Explanation cited above. If the assessee has taken his son into his family and has openly acknowledged him as a member thereto by claiming the status of a joint family, it would be unreasonable to still hold that the subject required further elucidation by way of evidence that the son is being " brought " up by the father as a member of the family to which the father belongs. It would be strange to insist upon evidence aliunde. The assessee, when he declared that he and his son do form members of a Hindu undivided family, has done so obviously to preserve the solidarity of his family and indeed his religion. His lapse even if it is to be considered as one in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that succession to the property of a person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession. Act. Such a provision which regulates the rights of succession after the lifetime of a person whose marriage is solemnized under the Special Marriage Act, 1954, cannot be deemed to affect or alter the joint family structure between an assessee and his son. The discretion vested in the Hindu father to treat his properties as joint family properties by an overt or a covert act of his, by taking into his fold his Hindu sons so as to constitute properties as joint family properties is certainly supreme and unexceptional and section 21, in our view, does not interdict such a vested discretion in a Hindu father to do so. Reference was made to section 5 of the Hindu Succession Act, wherein it is said that the Act does not apply to any property, succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954. This, however, overlooks the fact that if a Hindu father possessed of property declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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. " On the salient question whether there should be more than one male member to form a Hindu undivided family as a tax unit under the taxing statutes, the court said : " 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 indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent. Whilst in the former case the Supreme Court was confronted with a case where the sole surviving coparcener had no son at least for a part of the accounting year, in the latter case it was not so ; particularly in the case under review the son was there during the entire year. In fact, the claim for being assessed as a Hindu undivided family was made long after the birth of the lineal descendant. Adopting the ratio of the Supreme Court in Gowli Buddanna v. Commissioner of Income-tax, we hold that the claim of the assessee to be reckoned as a Hindu undivided family is well merited and founded and has to be accepted. In fact, under similar circumstances, the Mysore High Court in Commissioner of Wealth-tax v. Lt. Col. D. C. Basappa, the Allahabad High Court in Pratap Narain v. Commissioner of Income-tax, and Commissioner of Income-tax v. Beni Prasad Tandon and the Patna High Court in Panna Lal Rastogi v. Commissioner of Income-tax are all of the same view that the character of the property in the hands of a sole surviving coparcener, on the induction of a lineal descendant or in the presence of a person who has to be treated as a member of the joint family, has to be impresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Though one may gain the impression that the principle excerpted above and contained in T. S. Srinivasan v. Commissioner of Income-tax eliminates the application of the Hindu law doctrine which concedes the right of a son in the womb of the mother being equal in many respects to a son actually in existence, it was stated so in the peculiar facts of that case where there was no lineal descendant up to a particular point of time during the accounting year during which the department rightly treated the assessee therein as an individual. In the later decision of the Supreme Court in Gowli Buddanna v. Commissioner of Income-tax, the true content of the doctrine has been brought out and succinctly stated thus : " . . . Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and 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 the case under consideration, Nicolas Sundaram has to be treated as a male lineal descendant of the assessee. Even otherwise, as a son who should at least be maintained by the assessee, his claim to be engraft ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
