9911796707
TMI Blog1996 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... family ?" However, the Division Bench felt that there is no direct decision of any High Court or the Supreme Court on the point. After referring to the judgment of this court in Prem Chand v. CIT [1984] 148 ITR 440, and the Division Bench decision of the Madhya Pradesh High Court in CIT v. Dhannamal [1983] Tax LR 323, the Division Bench of this court came to the conclusion that the said two decisions are conflicting with each other and, therefore, felt the expediency of referring the matter to a Full Bench for an authoritative pronouncement on the question. The Division Bench observed : "What follows the main question that emerges principally for consideration is : 'Whether the wife who was a member of a Hindu joint family comprising herself, her husband and sons can sever herself from the membership of the joint family by unilateral declaration to that effect, yet retaining the marital tie ?'" Before we proceed to answer the question, it would be necessary to briefly refer to the relevant facts. The brief facts : The dispute relates to the wealth-tax assessment for the assessment years 1976-77 and 1977-78. The assessee filed declarations to the effect that the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le male member and his wife or where there are widows of deceased coparceners. There can also be a joint family where there are widows only or a widow and an unmarried daughter. For, on the death of a sole surviving coparcener, a Hindu joint family is not finally terminated so long it is possible in nature or law to add a male member to it. A widow holding her deceased husband's ancestral properties as a widow's estate constituted a Hindu undivided family prior to the Hindu Succession Act. The Act had the effect of altering the status of a widow to an individual for the purpose of taxation. The family cannot be at an end while there is still a potential mother, if that mother in the way of nature or in the way of law brings in a new male member. The existence of a coparcenary is not essential for the existence of a joint family. A coparcener who has received his share on partition and has no wife or children, cannot constitute a joint family and he must be assessed to tax as an individual. It is well settled that the Hindu coparcenary is, however, a narrower body than the joint family. A joint family may consist of female members. It may consist of a male member, his wife, his mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hindu undivided family in the instant case. It is not the case that the document is in the nature of any conveyance transferring any rights in any immovable property. If the document is to be so construed, it would be hit by the provisions of the Transfer of Property Act and also the provisions of the Indian Registration Act. The said document, therefore, cannot be relied upon for any purpose if it is to be treated as one of conveyance. It is also an admitted fact that the marriage between the wife and the assessee-husband is not dissolved by any decree of divorce. The relationship of husband and wife continues. How can it be said that she ceased to be a member of the Hindu undivided family ? There is no severance in the status of the joint family as such. Even in cases where there is severance in the status of a joint family, it is held that the joint family cannot be deprived of its property and the income derived therefrom. The apex court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, AIR 1986 SC 79, held : "The plaintiff by seeking to bring about a severance in the status of the joint family, cannot deprive the joint family of this property and the income derived on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the omission evidently is that the expression has a well-known connotation under the Hindu law and being aware of it, the Legislature did not want to define the expression separately in the Act. Therefore, the expression 'Hindu undivided family' must be construed in the sense in which it is understood under the Hindu law. Thus, it is clear that the joint family or the Hindu undivided family is a body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption : "The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence." There is no dispute in the instant case that the husband-assessee and his wife are living together as such even after the alleged declaratory/ release/relinquishment deed dated April 5, 1971. By applying the principles aforementioned, there is no difficulty in holding that the wife continues to be a part and a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law presumes in consequence of some act of the releasor, for instance, when one of several joint obligors is expressly released, the others are also released by operation of law. Release by way of enlarging an estate.--A conveyance of the ulterior interest in lands to the particular tenant ; as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee." In P. Ramanatha Aiyar's Law Lexicon (Reprint edition 1987), the word "release" is defined as follows : "The gift or discharge of a right of action, which any one hath or claimeth against another or his land. A release is a discharge of an existing obligation or right of action by the person in whom the obligation or right is vested to the person against whom it exists. A 'release' has been defined to be the act or writing by which some claim or interest is surrendered to another, the giving up or abandoning of a claim or right to the person against whom the claim exists or the right is to be exercised or enforced. No set form of words is necessary to constitute a release, but such words should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
