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TMI Blog1947 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... The question of law referred to the decision of the High Court was "whether the sum of ₹ 1,000 per month received by the petitioner (meaning the respondent) in the account year 1934-35 was received by her as a member of a Hindu undivided family within the meaning of Section 14 (1) of the Act." That section reads as follows:― "The tax shall not be payable by an assessee in respect of any sum which he receives as a member of a Hindu undivided family." The Income-tax Officer answered the question in the negative, and on appeal, his decision was confirmed by the Assistant Commissioner of Income-tax. The appellant also was of opinion that the question should be answered in the negative. The High Court, however, answered the question in the affirmative. Kalyan Singh, the husband of the assessee, along with his brothers. nephews and cousins formed a Hindu undivided family governed by the Mitakshara law. The genealogical tree of the family is as follows:― Lala Shiam Sunder Das Badio Das Ram Chandra (Adopted) Kalyan Singh-Bhagwati Sagar Prasad Kalyan Singh Ram Das Govind Das Hanuman Prasad Ram Gopal (Adopted) Ragunath Das Indrawati Radh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to none of the disruption proceedings was the respondent a party. In the above circumstances, the Income-tax Officer assessed the respondent on her allowance of ₹ 12,000 received by her during the account year 1934-35, overruling the objections raised on her behalf that she was receiving the amount as a member of a Hindu undivided family within the meaning of Section 14(1) of the Act, holding that after the disruption of the family in 1923 "owing to the fact of the payment of the allowance to Musammat Bhagwati (respondent) by these persons the Musammat cannot be said to be a member of the family of either of them. It is clear that she is not a member of any Hindu undivided family existing at present ..." He also added as a supplemental ground that the allowance that the respondent had been getting was only by virtue of the deed of agreement and as such was not exempt under the Act. As already mentioned this order was confirmed by the Assistant Commissioner. In stating the case to the High Court, the appellant based his opinion on the ground that the Hindu undivided family to which the respondent once belonged became disrupted in 1923, and partitioned itself into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expressly stated by them, on the assumption that up to 9th April, 1923, the respondent was receiving her allowance as a widow of a Hindu undivided family. To show that the decision of the High Court cannot be supported, Mr. Tucker, the learned counsel for the appellant, submitted two arguments for their Lordships' consideration, viz.:―(1) Assuming that the respondent was receiving the maintenance allowance as a member of a Hindu undivided family till the disruption of the family into 5 groups in 1923, she is not entitled to claim the benefit of Section 14(1) of the Indian Income- tax Act, as according to the learned counsel's reading of the section the three following conditions required for its operation cannot be said to exist in her case, these being (a) the assessee must be a member of a Hindu undivided family at the time of the assessment, (b) the income in question must be received by the assessee in virtue of her capacity as a member of the joint family, and (c) the allowance must be received out of the income of the joint family, explained as meaning that what is received must be part of the income of the family of which the assessee was a member. Shortly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved under the section is that she was receiving the allowance in question in her capacity as a member of the Hindu undivided family. As already stated this was the first argument put before the High Court which the learned Judges did not consider. Under the Act, a Hindu undivided family is treated as a unit of taxation. Section 14(1) of the Act exempts an assessee from payment of the tax in respect of any sum which he receives as a member of a Hindu undivided family. It is clear that the object of the section is to avoid double taxation. The question in the present case is what has the respondent to prove in order to claim the benefit of the section. In support of his contention, Mr. Tucker relied on two decisions: (1) Commissioner of Income-tax, Bihar and Orissa v. Maharani Lakshmipathi Saheba [1935] I.L.R. 14 Pat. 313; 3 I.T.R. 49 and (2) Commissioner of Income-tax, Bihar and Orissa v. Visheswar Singh [1935] I.L.R. 14 Pat. 785; 3 I.T.R. 216. The judgments in both cases were delivered by Agarwala, J. In the first case, the learned Judge stated that Section 14(1) of the Act premises(1) a Hindu undivided family; (2) that the person claiming exemption is a member of the family; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to the facts of the case that, "the question in the case is not whether the income belongs to the zemindar or whether it belongs to the joint family of which the assessee is a member, but whether the assessee received his payment as a member of a Hindu undivided family." Agarwala, J., in the second decision of the Patna High Court referred to above, thought that the principle was stated too widely in that case. A few other decisions were also referred to by the learned counsel. Their Lordships do not propose to discuss these decisions in detail, as it appears to them that the test to be applied when exemption is claimed under the section is clear and is what they have already stated, viz., if as in the present case a Hindu widow proves that she is receiving the allowance in question by virtue of her right or in her capacity as a member of the Hindu undivided family, then she is entitled to claim the benefit of the section. It was strenuously argued that because of the disruption of the joint family in 1923, the respondent can no longer claim herself to be member of a Hindu undivided family. Their Lordships are unable to accept this contention. The respondent was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a widow in a Hindu undivided family and declared that as such, she was not entitled to the estate of Kalyan Singh," her husband. Their Lordships fail to see how by the above provisions the respondent has surrendered her rights to maintenance from the family properties. It was argued by Mr. Tucker that, "even though the respondent technically remained a member of the family, she ceased to receive the income by her title as a member of the family, but began to receive it by virtue of the deed which fixed a liability on the people concerned, irrespective of the land which belonged to them." Their Lordships cannot accept this view. As they read the deed, the respondent by virtue of it effectively secured her maintenance right which was an inchoate one, by getting a charge created to safeguard it. Referring to provisions for maintenance Sir Thomas Strange in his Hindu Law―see Vol. 1, p. 231―observes: "In whatever way the provision is made, care should be taken to have it secured. The manner of doing this is discretionary, there being no special law directing how provision is to be made." The respondent in the present case has only acted on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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