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TMI Blog1940 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to other conditions also about certain family matters but we are not concerned with them. It was recited in the document that the terms of the agreement were in accordance with the oral instructions of late Kalyan Singh. Thereafter the allowance was regularly paid to and received by the assessee. On April 9, 1923, there was a partition in the family, which disrupted into five separate groups or entities, as follows :- 1. Hanuman Prasad and Ram Gopal, sons of a deceased brother of Kalyan Singh. 2. Govind Das, brother of Kalyan Singh. 3. Raghunath Das. 4. Gokul Das. 5. Lachman Das. Raghunath Das is the son of Govind Das and was adopted by Ram Das, a deceased brother of Kalyan Singh and Govind Das. Gokul Das and Lachman Das are both sons of Govind Das. At the disruption Hanuman Prasad and Ram Gopal on the one side and Govind Das on the other each agreed to contribute ₹ 500 to the assessees monthly allowance of ₹ 1,000 and this agreement was duly implemented. To all this, of course, the assessee was no party. For the assessment year 1935-36 the Income Tax Officer assessed to tax the sum of ₹ 12,000 being the allowance received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to belong. The first question that falls to be considered by us is whether a widow can be a member of a Hindu undivided family. In this connection learned counsel for the assessee has referred us to a number of authorities in support of the proposition. Learned counsel for the Department at first contested this point, relying mainly on an observation in In re Maharajkumar of Vizianagaram where the learned Judges say that widows cannot be regarded as members of an undivided Hindu family within the meaning of Section 14(1) of the Act. There is, however, a volume of authority of the effect that a widow of a coparcener is a member of the undivided family. In Mullas Hindu Law, 9th edition, Paragraph 212, we read : A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. Paragraph 213 says : A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property. In Vedathanni v. The Commissioner of Income Tax, Madras it was held by a Full Bench of the Madras High Court that the widow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion from Bombay, The Commissioner of Income Tax, Bombay Presidency, Sind and Aden v. Makanji Lalji The assessee in that case was a Hindu undivided family. The widow of one of the co-parceners obtained a decree for maintenance from the court. At the time of assessment the assessee claimed a deduction in respect to the amount which the widow received as maintenance; but the High Court helm that no such deduction was possible. At page 829 (of 1937 Bom.) Beaumont, C.J., who delivered the judgment says : Now, inasmuch as the assessee is the Hindu undivided family, which includes this widow, it is difficult to see how any deduction can be allowed in respect of a share of the income going to one of the members of the joint family. At page 830 he says : But in this case, the assessment being on a Hindu undivided family, it seems to me that the whole of the income of the Hindu undivided family is liable to assessment, and that it is impossible to deduct this sum payable to the widow of a deceased brother, who gets it in her capacity ultimately as a member of the joint family. The view expressed in the above two cases was followed by this Bench in Kedar Narian Singh v. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t important point in this reference and that is whether-assuming that after October 10, 1919, the assessee was drawing the allowance as a member of Hindu undivided family-she is or is not now drawing it in that capacity. On behalf of the assessee Mr. P. L. Banerji has argued this matter from two aspects. In the first place he contends-and not altogether without force-that, having originally received this allowance as a member of a Hindu undivided family, the capacity in which she was receiving it was unaffected by the subsequent disruption among the coparceners. He pleads that, even if she is herself no longer a member of a Hindu undivided family, she is nevertheless receiving the allowance in that capacity within the meaning of Section 14(1); her status quoad the right to maintenance is unchanged. The other aspect of the matter which learned counsel for the assessee has put before us is that she has not ceased to be a member of a Hindu undivided family at all; and here we think that the assessee is on firmer ground. There can be no partition between a female who is member of a Hindu undivided family and the coparceners, and therefore it is contended that the assessee, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have a joint Hindu family consisting of one male member and female members who are entitled to maintenance, although that does not mean that every Hindu who possesses a wife and a mother is necessarily a member of a joint Hindu family...... There is, of course, no coparcenary body where the family consists of an individual male and, for instance, his deceased brothers wife; but if the latter, having authority from her late husband, should adopt a son, the latter would become a coparcener with his uncle in the family estate. Authority for this proposition will be found in the two decisions which are referred to by Ramesam J., in Vedathanni v. The Commissioner of Income Tax, Madras. The first of these is Surendra Nandan alias Gyanendra Nandan Das v. Sailaja Kant Das Mahapatra . In that case there were two brothers, Raghunath and Bissonath, living as a joint family under the Mitakshara law. Bissonath died, leaving a widow with the power of adoption. The widow adopted a son and it was held by a Bench of the Calcutta High Court that the latter succeeded to his fathers interest in the joint family property notwithstanding that it had already vested in Raghunath. Similarly in Bachoo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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