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TMI Blog1939 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... as paid by Janaki out of her own funds but that, on the other hand, there was evidence that it did not come out of the estate of Mahadevan. The points chiefly urged by learned Counsel for the appellant are : (1) that the learned Judge did not appreciate the evidence properly and (2) that he shut out evidence which was produced by Mythili which if taken into account materially helped her case. 2. The circumstances attending the purchase of this house and the payment of the purchase money are as follows : In February 1918 when the house was purchased the parties lived at Cuddalore. Janaki had been left a widow in 1913. Her husband had left a large estate estimated to be worth two lakhs which devolved on his son Mahadevan, then aged 13. Janaki managed this estate on his behalf. In February 1918 this house at Chidambaram was conveyed to Janaki for ₹ 6750, the bulk of the consideration being the discharge of a mortgage on the house, for ₹ 6350. In April 1918 Mahadevan came of age. In the latter half of 1918 and the first half of 1919 repairs to the extent of about ₹ 1800 were done to the house and on 14th June 1919 the mortgagee, a vakil living in Madras, was paid & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the end of 1920 he had charged his mother with misappropriating large funds belonging to his estate during her management between 1913 and 1918, and with failing to render to him accounts of the estate when she had handed over the estate to him. She replied at once repudiating these charges. Nothing came of these notices and counter notices however and they are not relevant here except in so far as the house in Chidambaram is not mentioned in them. Fifteen months later, in March 1922 Janaki applied to Mahadevan for separate maintenance and in April 1923 she filed a suit to obtain separate maintenance. In her plaint she described herself as living at No. 40 South Car Street, Chidambaram and stated that she made no claim to be provided with a residence as she had a house of her own. Mahadevan in his written statement dated 10th November 1923 declared that this was a gross lie. The house has been purchased in plaintiff's name and improved subsequently with moneys belonging to this defendant and for his benefit. The plaintiff has only a right to reside therein. 5. Here for the first time the ownership of the house was put directly in issue. Nevertheless, in the compromise b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts of Mahadevan's estate show (i) that money of his estate was used to buy the stamp paper for Ex. A by which the house was purchased by Janaki in February 1918, (ii) that money of the estate was spent on effecting repairs to the house between February 1918 and June 1919 and (iii) that the 'grahapravesham' ceremony was performed at the cost of the estate. Taking these entries as a correct representation of the facts they do not by themselves indicate that the house belonged to Mahadevan. In the first place Mahadevan was of age when this expenditure was incurred. It is stated that his mother retained control of his estate till June 1920. But that is not the same thing as saying that this expenditure was incurred without his knowledge and approval nor can it be alleged as a strange or unusual thing that a house the property of his mother was put into a state of good repair at his expense. In the second place there is the fact that at this time the estate was indebted to Janakiammal. She had been left a legacy of ₹ 5000 under the will of her husband. Of this she had drawn only ₹ 3000 from the estate. And see the compromise decree in her suit for maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances just explained as a person legally bound to produce such documents. Learned Counsel faced with this difficulty falls back on Section 65(e), Evidence Act by which secondary evidence is allowable of the contents of a public document. Public document is defined in Section 74, Evidence Act, and means a document forming the act or record of the act, (1). of the Sovereign authority, (2). of Official bodies and tribunals, (3). of public officers legislative, judicial and executive. It is urged upon us that the income-tax return inasmuch as it is made in compliance with a notice issued under Section 22(2), Income-tax Act, and when made becomes the basis of an assessment made under Section 23, is therefore part of the record of the act of assessment. We do not agree in this view. Section 23 of the Act is: If the Income-tax Officer is satisfied that a return is correct and complete he shall assess the total income of the assessee and shall determine the sum payable by him on the basis of such return. 8. We think this Section is perfectly clear. In the matter of assessing a person to tax, when does the Income-tax Officer perform an act within the meaning of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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