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TMI Blog1971 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu undivided family and the main contention on his behalf was that there was a joint family nucleus from which the deceased had built up his business. The said nucleus is said to have come into being as a result of the partition in 1903 of the joint family properties belonging to the deceased and his brother, Shri Bhola Nath, who pre-deceased him. It was further his case that the deceased had treated his self-acquired properties also as belonging to the Hindu joint family consisting of himself and his sons. Accordingly, it was claimed that only the share of the deceased in the joint family properties was chargeable to estate duty. The Assistant Controller found that Brij Mohan had also raised a similar contention before the Income-tax Officer and the Appellate Assistant Commissioner in connection with the income-tax assessment for the assessment year 1953-54, but the same was rejected by both of them. In view of the fact that the deceased had been showing himself as an individual in his income-tax returns right up to his death, and also, in view of the fact that he had left a will in which he had declared all the properties belonging to him to be personal self-acquired propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased in his individual capacity ? " The first contention raised on behalf of the accountable persons is that the Central Board of Revenue did not deal with all the material evidence and the order passed by Shri Jamna Pershad Singh, Member, Central Board of Revenue, is vitiated and the case should be sent back for a consideration of all the material evidence, which according to Shri P. N. Chopra, counsel for the accountable persons, has not been considered. In relation to this contention an application under section 64(5) of the Estate Duty Act has been moved and, along with the same, a large number of documents have been filed. It is said that this court should refer to the said documents and on their perusal hold that the decision of the Central Board of Revenue is incorrect and come to the conclusion that the properties were joint properties or direct a reconsideration of the case by the Controller. The provisions of section 64(5) of the Estate Duty Act are in the following terms : "If the High Court is not satisfied that the case as stated is sufficient to enable it to determine the question of law raised thereby, it may require the Appellate Tribunal to make such modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Tribunal came to the conclusion that it was possible for the deceased to have set up his business as a contractor with the help of the nucleus acquired by him as a result of the family partition. There are several other documents also which Mr. Chopra wants us to refer to. This does not, however, appear to be the proper way of proceeding on reference under the Estate Duty Act. The Tribunal under the Income-tax Act and the appellate authority under the Estate Duty Act are different. The evidence before either of them can also be different and in view of the rermind order made by the Income-tax Appellate Tribunal it is clear that the evidence, which was produced before the Tribunal, was not the evidence which was produced before the Assistant Controller of Estate Duty. It, is therefore, absolutely impossible to refer to a conclusion arrived at by another Tribunal on different facts that relate to the same contention. Each case has to be decided according to the facts presented to a particular body expressly enjoined by law to decide it. In this case, we have to consider the facts as found by the Central Board of Revenue acting as the appellate authority under the Estate Duty Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a partition between the brothers some time in 1901 A.D. but this date has been corrected to 1903 A.D. in the statement of the case. The properties acquired by the deceased, Shri Prem Raj, by this partition were house property and two debts due to the family amounting to Rs. 616 and Rs. 983. The debts have been found to be payable in the form of instalments. There is no documentary evidence according to the Board's order as to when these debts were actually realised and there was no evidence that there was any other source of income. The deceased started working as a P.W.D. contractor in 1907. As regards the question whether the business as a P.W.D. contractor was started with the help of the nucleus, i.e., the house property and the debts, it was held by the Board as follows: " It seems to me that if the deceased was able to collect any amounts at all out of the debts allotted to him on partition he could have done so only in instalments and since, at the relevant time, he had no other source of income, it is reasonable to conclude that such periodical collections (if any) must have been spent on his own and the family maintenance. Further, the probabilities of the case are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family property. That case seems to be distinguishable because there was, (a) a sale of ancestral property, and (b) a close proximity in time between the sale and the investment in the hotel business, which were in the same year. In the present case, there is no evidence of any sale of the house property and also a gap of several years before the contractor business was started. Also, and this seems to be even more important, there is no purchase of immovable property involved. The deceased carried on business as a contractor which is more properly a personal business dependent on his own efforts, than a business dependent on investment. There are thus no facts which can help to conclude that the deceased in the present case also left only joint family property. The nucleus in the present case was not used to acquire any property. The property of the deceased was acquired, as the facts disclosed, from the income of the deceased from his business as a P. W. D. contractor and, therefore, it was necessary that it should have been established that this business was carried on with the help of the joint family funds. There is no evidence whatsoever regarding this. The various author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nucleus was not in fact used, this judgment also does not help the case of the accountable persons. Then reference was made to Mallesappa Bandeppa Desai v. Desai Mallappa alias Mallesappa, where it was held that where a manager claims that he has acquired immovable property from his separate funds it is for him to prove by clear evidence that he bought the property from his separate funds. This judgment has no application to the present case. What has to be seen here is whether the contract business could have been separate and carried on without the aid of the joint family funds. As the only property admittedly was the house which was never sold and the two debts whose amount is not large and which were payable in instalments, it cannot be said that any further proof was required to show that the income providing the purchase money for the property of the deceased had come from the contract business and from no other source. In this connection one of the most important considerations to be borne in mind is that the property has been treated as separate and self-acquired for about 50 years. If a party wants to establish that this long and uninterrupted treatment of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty. The will of the deceased clearly shows the opposite. The contention that the will was not a proper guide, as even the jewellery of the daughter-in-law was described as belonging to the deceased, was rejected on the ground that the jewellery might have belonged to the deceased and he might only have allowed her to use the same. The proposition of Hindu law which has been relied upon by the Board seems to be entirely correct. It has been held that a clear intention to waive and renounce separate rights must be established : vide Lakkireddi China Venkata Reddi v. Lakkireddi Lakshmama, where it was held as follows: "Law relating to blending of separate property with joint family property is well-settled. Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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