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TMI Blog1971 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... he can, while the contention raised by the revenue is that she cannot. That is the controversy in this case. The question referred to us deals with that point and is worded : " Whether, on the facts and in the circumstances of the case, the Tribunal rightly held that the income of Rs. 21,544 was not the individual income of the assessee, Shrimati Pushpa Devi, but was the income of her Hindu undivided family ? The facts are not in dispute and may be stated as follows : Shrimati Pushpa Devi, an individual, is the assessee. The statement of the case relates to the assessment year 1963-64. The previous year ended on March 31, 1963. The assessee is a member of the Hindu undivided family consisting of her husband, Kanwal Narain Khanna, her father-in-law, Gurnarain Khanna, her mother-in-law, Kando Devi, and her minor son, Ravi Narain Khanna and her three daughters, Rajni, Rama and Madhu. The assessee in her individual capacity and with the aid of her personal funds entered into a partnership with her father-in-law, Gurnarain Khanna, on June 19, 1958, in the name and style of Gurnarain Jagat Narain and Co. Her minor son, Ravi Narain, had been admitted to the benefits of this partnershi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Madhu, may daughters." According to clause 5, she further declared that from this day, viz., first day of September, 1961, " I again declare and make known to every-body that my exclusive or separate ownership and enjoyment of the above said share capital investment and said share in the profits and losses of Nishat Talkies, Kanpur, shall cease to be my self-acquired or separate property and the ownership, enjoyment and possession of the same shall vest only with the said Hindu joint family to be enjoyed by it exclusively, solely and wholly hereinafterwards." Rupees 20,865 being the 1/3rd share of the income from the business of Nishat Talkies for the year under reference, was credited to the account of the assessee, in the books of the firm of Gurnarain Jagat Narain and Co. The assessee, a Hindu undivided family, paid advance tax in respect of this amount of income and also filed its return in respect thereof. The assessee on the Other hand did not include this income in her return for the year under reference, but made the following note in part 1, section thereof : Share of income from Nishat Talkies, Kanpur, Rs. 20,865. Please see note on back page of computation of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndly, on the ground that the assessee could not have thrown her personal property in, her joint family hotch-potch as the joint family did not possess any joint family, property. Against the decision of the Appellate Assistant Commissioner the assessee filed a second appeal before the Income-tax Appellate Tribunal where she contended that she had by her unequivocal expression of intention impressed her personal property, viz., 1/3rd share in the Nishat Talkies business, with the character of coparcenary property. He contended that the doctrine of Hindu law did not make any distinction between a coparcener and a member, male or female, and that any member of joint family, be it a male or female, could impress his or her personal property with the character of joint family property. She further contended that it was not necessary that the joint family should own any nucleus of joint family property before any member of the family could so convert his personal property into joint family property. In support of her stand she referred to the fact that the Gift-tax Officer had held that the conversion by the assessee of her 1/3rd share in the Nishat Talkies business into joint family pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty into joint family property can be employed by any member of a joint family and not necessarily by a coparcener alone. The Tribunal also held that whatever be the disqualifications to which a female may have been subjected under the pure principles of Hindu law, no such discrimination was to be found in the case of a Hindu female so far as this rule of Hindu law is concerned. The contention that prevailed with the Tribunal was that there appeared to be no apparent reason or justification for discriminating against a Hindu female on the ground of sex in the matter of this judgemade law, which especially does not enlarge her rights or improve her status or position but only enables her to relinquish her absolute property in favour of her joint family. The rule does not entitle her to advance any claims unknown to Hindu law, but only enables her to surrender and sacrifice her own interests in the property in the larger interests of the joint family. It was contended that the position was not foreign to the genius of Hindu law. There is a very close parallel to this position in Hindu law which has now been well established and recognised, viz., that a female in Hindu law can, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n have no application in such a case. But the question of blending was also considered in detail and the judgment contains detailed observations about the nature of the rule of blending and the principles thereof At pages 785-786 it was said : " The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate ; in other words, the separate property of a coparcener loses its separate character by reason of the owner's conduct and gets thrown into the common stock of which it becomes a part. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. On behalf of the assessee, strong reliance has been placed on the use of the language " separate or self-acquired property of a member of a joint Hindu family " and it is contended that if the doctrine of blending was applicable to a coparcener then there is no reason why the words " a member of a joint Hindu family " were used. It is not disputed that a female Hindu is undoubtedly a member of the joint Hindu family although she is not a coparcener and if the self-acquired or separate property of a male member of the family can be blended with the joint property of the family, it may as well be the property of a Hindu female who is as much a member of the family as the male. It is no doubt true that the coparcenary property is subject to survivorship while the separate and self-acquired prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father for she is not a coparcener nor can it be applied to a property held by a Hindu female as a limited owner. The argument of the learned counsel is that the article which permits the blending of separate property with the joint family property is primarily based on the decision of the Supreme Court in the case of Mallesappa v. Mallappa which was primarily concerned with the property owned by a Hindu female from her father and thus the law applied to the separate property of the female or that in which she was to be regarded as a limited owner. But what happens to the property of which the Hindu female is an absolute owner ? There is nothing in Mallesappa's case about such property. It appears to us that there is no substance in this argument. The passage in that case clearly states that, where members of a joint family who have control over the joint estate, and those members can be coparceners alone, blend with the family estate the property in which they have separate interests, the effect is that all the property so blended, becomes joint family property. The passage, therefore, clearly makes out the case of a coparcener blending his separate property with the family prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the General Clauses Act of 1897. Section 14 of the Hindu Succession Act, however, laid down a rule which obviously has some retroactive operation. The scheme of the Hindu Succession Act in the matter of succession to the property of a Hindu dying intestate (after the coming into force of the Act) is to lay down a set of general rules for succession to the property of a male Hindu in sections 8 to 13 including the rules relating to ascertainment of the shares and portions of the various heirs. It is a part of this scheme to enact in sections 15 and 16 separate general rules affecting succession to the property of a female dying intestate. Sections 18 to 28 are headed "General provisions relating to succession" and lay down rules which are supplementary to the provisions in sections 5 to 17. The rules laid down in those sections are not merely explanatory of the general rules for succession. Some of them enact substantive provisions involving legal principles. The effect of some of these provisions is to abolish the Hindu women's limited estate and any property possessed by a female Hindu, howsoever acquired, is held by her as her absolute property and she has full power to, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had stated that they formed the basis of the doctrine of blending. Gajendragadkar J. observed that the text of Yagnavalkya and the comments of Vijnyaneshwara did not appear to have any relation to the doctrine of blending and that the context of the discussion was the acquisition of property by a coparcener with the use of a family stock. The augmentation in that case was as forming part of the original stock and an accretion to it and in such augmentation the acquirer does not get any extra share for his special exertions. The real test of blending was thus laid down by the Privy Council in Rajani Kanta Pal v. Jaga Mohan Pal, where it Was held : " Where a member of a joint Hindu family blends his self-acquired property with property of the joint family, either by bringing his self acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all he property so blended becomes a joint family property." According to the Tribunal, there is no apparent distinction between "accretion" to the property and "blending" and it is observed that if a woman can impress her personal property with the character of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. Where the widow blends funds of several kinds, i.e., funds known to have come from the husband's estate and funds whose p source is not known, and the blended fund is invested in re-acquiring what was the husband's estate, the acquired property becomes part of the husband's property (see Yellavajjhula Surayya v. Tummalapalli Mangayya). All these are, however, cases of accretion to the estate. They look very much like blending but are actually cases of augmentation of the original estate by means of accretion. There can be no doubt about the power of the widow to augment that estate. By adding to that estate she still retains the complete power of disposal over the income. In the case of blen ding she loses all her control over the property including the income from that property. In Mallesapp's case, it was said by the Supreme Court that a Hindu female holding property as a limited owner cannot circumvent the rules of surrender, and allow the members of her husband's family to treat her limited estate as part of the joint proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property. The act by which the coparcener throws his separate property in the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing in-to the common stock is a doctrine peculiar to the Mitakshara school of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case there is no donor or donee. Further, no question of acceptance of the property thrown into the common stock arises." This again lends support to the view that it is only the action of a coparcener which can be characterised as blending his property with the coparcenary property. The next question which according to the revenue is that the process of conversion of personal property into the joint, family property is not possible unless the joint family owns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing any self-acquired property belonging to him with the character of joint family property even if there is no ancestral nucleus or any other joint family property. Following the aforesaid ruling of the Madras High Court a Division Bench of the Andhra Pradesh High Court also took the same view in Duggirala Sadasiva Virttal v. Bolla Rattain. A Division Bench of the Bombay High Court reaffirmed this view in the case of Damodar Krishnaji Nirgude v. Commissioner of Income-tax in which it was said : " Now, in our view, possession of ancestral or joint family property under the Hindu law is not a condition precedent for enabling a coparcener to impress his self-acquired property with the character of a coparcenary property. What constitutes impressing self-acquired property with the character of a coparcenary property is the unequivocal act on the part of the coparcener to abandon his individual exclusive right in the property in favour of the coparcenary. It is a well-known principle of Hindu law that a coparcenary can exist even though it may own no coparcenary property. When a coparcenary can exist without possessing or owning coparcenary property, there is no reason why a coparc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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