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TMI Blog1947 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proprietor of the estate, and she has been provided maintenance out of the income of the estate ever since the death of her husband. 3. The respondent's husband left a will dated 14-6-1907, in which he gave the direction that after his demise his widow should get for her guzara or maintenance a sum of ₹ 500 per mensem; later by a codicil dated 23rd May 1913, he raised the guzara amount to ₹ 1000 per mensem. It would appear that as a result of subsequent litigation between the parties the maintenance allowance was made a charge on certain specific properties of the taluqdari estate. 4. In Fasli year 1345, which is the accounting period for the assessment year 1939-40, the respondent received by way of guzara a sum of ₹ 11,000 and in Fasli 1346 she received a sum of ₹ 13,000. These sums were included by the Income Tax Officer in the total assessable income of the respondent in the view that the maintenance allowances were received by her not as member of the Hindu undivided family but under the provisions of her husband's wills. The Appellate Assistant Commissioner concurred in that view. The assessee preferred two appeals to the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a question of law is involved in this case and we therefore refer to the Chief Court of Oudh the following question under Section 66(1) Income Tax Act: Whether the maintenance allowances received by Rani Bijay Raj Kunwari in Faslis 1345 and 1346 were received by her as a member of Hindu undivided family within the meaning of Section 14(1), of the Act? Sd. Yahya Ali President. Sd. A.L. Sahgal, Accountant Member. 2. It will be seen that the material facts lie within a short compass and are not in dispute. Raja Rajendra Bahadur Singh, Taluqdar of Mahewa, died issueless leaving behind him his widow Rani Bijay Raj Kunwari, the assessee in the proceedings before the Tribunal. Under a will executed by the Raja his nephew, Raja Jai Inder Bahadur Singh succeeded to the estate. By the same will Raja Rajendra Bahadur Singh gave his widow a guzara or maintenance allowance of ₹ 500 per mensem. By a codicil dated 23-5-1913, he raised the guzara amount to ₹ 1000 per mensem. Under the will Rani Bijay Raj Kunwari's maintenance allowance was a charge on the estate and on the possessor of the taluqa. It is the maintenance allowance received by her in 1345 F. (&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kunwari are both members of this family. That succession to the Raj is governed by the rule of primogeniture. It was also not disputed before us that, apart from the taluqdari property there is considerable non-taluqdari property owned by the joint family; that there are in existence a will and a codicil executed by Raja Rajendra Bahadur Singh, the previous holder of the estate, under which his widow Rani Bijay Raj Kunwari is entitled to a maintenance allowance of ₹ 1000 per mensem. 5. In the present case it is not known whether the allowance is paid out of the talukdari estate or from the income of non-taluqdari villages. If it is paid out of the income of the non-taluqdari villages, the first question raised by the counsel for the Income Tax Department would not arise. Assuming, however, that it is paid out of the income of taluqdari villages, we are of opinion that the result, in so far as the question raised before us is concerned must be the same as if the allowance was paid out of the income of non-taluqdari property. It was strenuously argued by the learned Counsel for the Income Tax Department that the income of an impartible estate is the income of the holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Raj which, for the purposes of the present case, must be assumed to be the property of an undivided Hindu family. Thus we find that the assessee is a member of an undivided Hindu family and that she is further entitled to maintenance from the holder of the Raj. 6. It was argued, however, that inasmuch as the maintenance allowance is paid to the Rani under the will and the codicil of the late Raja, it cannot be said to be received by her as a member of an undivided Hindu family, but as a legatee. The contention assumes that a person cannot receive maintenance allowance as a member of an undivided family which would entitle him to claim the benefit of Section 14, Income Tax Act, if there is a will in his favour. There are no good grounds either in principle or on decided cases to accept this contention. It often happens that a member of an undivided Hindu family who is entitled to maintenance can also, in addition to his right to demand the allowance as such, lay claim to it under a will. The existence of a right to claim maintenance as a member of an undivided Hindu family is not necessarily inconsistent with the existence of an additional ground of claim based upon a will. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of Bennett J. implies that if the maintenance allowance was received by the Rani not only as a member of an undivided Hindu family, but was referable to the will also, it would not be exempt from payment of Income Tax. We are not satisfied that this was intended to be conveyed by the observation just referred to. If it was, we may with greatest respect for the learned Judge point out that the real question for consideration in a case like the present is not the legal machinery by which the maintenance is secured to the assessee, but whether it is received by him (or her) as a member of an undivided Hindu family. The allowance may be received by a person as a member of an undivided Hindu family and may yet be referable to a will also. The two, in our opinion, are not mutually exclusive. 8. Strong reliance was placed by Mr. Das on behalf of the Income Tax Department on the case in Rananjaya Singh v. Income-tax Officer, Sultanpur MANU/OU/0032/1943MANU/OU/0032/1943. In that case Raja Bhagwan Bakhsh Singh, a taluqdar of Oudh, possessed an estate which was governed by the Oudh Estates Act, 1 [I] of 1869. The assessee was the second son of the Raja to whom in the year 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inting out the distinction between a right to maintenance of a member of an undivided family owning partible property and the right of a sort or other member of an undivided family owning impartible property, the following observations were made by Sir George Rankin at page 176: Single heir succession is inconsistent with any son having the same right in respect of income as he would have had in the income of partible property, and the use of the word 'maintenance to describe the latter right cannot be allowed to confound the two. The right to maintenance in the former case is a right of a different character from that of a cosharer to enjoy his share and live upon his own property by way of joint possession. To represent that custom takes away the right to maintenance from some members but leaves it to others does not explain the facts as to impartible estate. The son's right of maintenance out of impartible property cannot be accounted for as an original and separate right untouched when custom takes away his right to joint possession. It is not something that is left after something else has been subtracted. It is a different right given sometimes to sons only and som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d agreed that he and his heirs should pay a sum of one lac of rupees every year at Balrampur for and on her behalf, the same to be secured by a charge on the ancient impartible estate of Jeypore including Kotpad, Bissemkatak and Salim Muttah. The Raja also agreed to pay her a lac of rupees for providing her with a suitable residence and ₹ 36,000 for her medical treatment. These sums, including the annual allowance were under the compromise to be her absolute property and Raja Sri Vikrama Deo Verma and his heirs were to have no manner of right thereto. On her part the assessee acknowledged the absolute title of the Raja in the Jeypore estate and the properties in dispute and renounced all claim to them and conveyed all her right in them to the Raja. 12. The assessee received an allowance of one lac of rupees in 1934-35, but only ₹ 75,000 in each of the following two years. She was assessed to tax on each of these sums and appealed against the assessment. She claimed exemption under Sub-section (1) of Section 14 of the Act. Her contention was repelled. The decision was based upon the finding that the widow had ceased to be a member of the undivided Hindu family. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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