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TMI Blog1977 (2) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 930 for the assessment year 1965-66. For the assessment year 1966-67 in the original return filed in the status of an individual, he had disclosed a total income of Rs. 24,006 only. But, in the revised return, he disclosed an income of Rs. 9,930 for the assessment year 1965-66 and Rs. 12,006 for the assessment year 1966-67. The difference in the total income in the revised returns was on account of the fact that the assessee, in the returns filed as Hindu undivided family, excluded the remuneration of Rs. 12,000 each year received by him as director of M/s. V. Vijayakumar Mills Ltd. on the contention that it constituted his individual income. The Income-tax Officer accepted the assessee's claim to be assessed in the status of Hindu undivided family and made the assessments accordingly. But he declined to exclude the sum of Rs. 12,000 from the income of the family. However, when the assessee preferred appeals to the Appellate Assistant Commissioner of Income-tax challenging the correctness of the assessment in respect of certain matters, the Appellate Assistant Commissioner took the view that the assessee could not be treated as a Hindu undivided family and assessed as such and he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Marriage Act, 1954. A son by name Nicolas Sundaram was born to them on November 29, 1957. Initially, the assessee was assessed to income-tax in the status of an individual on his own declaration. In 1959-60, the assessee claimed the status of a Hindu undivided family consisting of himself and Nicolas Sundaram. The assessee repeated his claim to be treated as a Hindu undivided family for the assessment years 1960-61 and 1961-62. The main contention of the assessee was that Nicolas Sundaram was a Hindu and the property held by him was ancestral property and that, therefore, he has to be assessed in the status of a Hindu undivided family. The revenue negatived the contention. It was that question which ultimately came before this court and this court took the view that the status of the assessee in that case should be treated as that of a Hindu undivided family. While holding so, this court relied upon Explanation (b) to section 2 of the Hindu Succession Act, 1956, the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956, whose language is in pari materia in each of the Acts. Before proceeding further to dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whom this Act applies by virtue of the provisions contained respectively in such Acts. Ordinarily, under the personal law, an illegitimate child would take after the religion of the mother. Particularly it is so in the case of regenerate classes. But, as already stated, if such a son of a parent belonging to a twice-born class inducts the child into the Hindu family and brings him up as such, then the statute invests him with the status of a Hindu and recognises him as a Hindu. Mr. Balasubrahmanyan placed reliance upon the decision in Myna Boyee v. Ootaram [1861] 8 MIA 400 (PC). That was a case where the illegitimate children born to a woman of the Brahmin caste through an Englishman were disentitled to claim inter se as between themselves rights of survivorship though they were considered as Hindus. This has no application to the facts of this case. Even so, the decision in Lingappa Goundan v. Esudasan [1903] ILR 27 Mad 13, cited by the revenue, where the plaintiff therein was not regarded as a Hindu by birth as his mother was a Christian, has no application for the reason that the later development of statute law recognises such a status in the child, by an overt act on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is decision, observed-See [1976] 104 ITR 436, 442, 443 (SC): "Under the codifying Acts, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term 'Hindu' has undergone a radical change and it has been given an extended meaning. The aforesaid codifying Acts not only apply to Hindus by birth or religion, i.e., to converts to Hinduism but also to a large number of other persons. According to Explantion (b) to section 2(1) of the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956, and the Hindu Marriage, Act, 1955, as also according to Explanation II to section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child, legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu." After stating the above general proposition, the Supreme Court proceeded to state : " In the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler. Even after his marriage, he did not renounce Hinduism but continued to profess that religion. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the laws prevailing in a foreign country and whether it was registered according to the special marriage laws prevailing in India as also information regarding the place of birth of the daughter, whether the child was baptized in accordance with the Christian law or whether any function was subsequently done in India in accordance with Hindu religious rites and whether the wife and daughter have become Hindus by conversion at least. The assessee did not choose to answer these questions, but sent a short reply by a letter dated November 19, 1971, wherein he stated : " With reference to your enquiry regarding the particulars of my wife and daughter, I humbly submit the following position: 1. My wife is a German Christian. 2. My daughter Christine is an Indian Christian. Since I am a Hindu by birth and my properties are ancestral I contend that my status is a Hindu undivided family with my wife and unmarried daughter." Subsequently in the grounds of appeal before the Tribunal also in ground No. 2, the assessee contended as follows : "The appellant's family consists of himself as karta, his wife and one unmarried daughter. As decided by the Supreme Court of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded in the cases referred to above, namely, that the child should have been brought up as a Hindu in order to satisfy the requirement of the Explanation. We are of the opinion that such a requirement is implicit in the language of Explanation (b) itself. That Explanation which we have extracted already will clearly indicate that the child can be said to have been brought up in the family to which its Hindu parent belongs only if it is brought up as a Hindu. If it is not brought up as a Hindu, but the child is brought up as a Muslim, Christian, Parsi or Jew, then there is no question of such a child being brought up as a member of the family to which the Hindu parent belongs. It may also be noticed in this context that the child being brought up as a member of the family to which the Hindu parent belongs or belonged, occurs as a part of the statement, "who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged". Consequently, the expression "family" occurring as it does along with the words "tribe, community, group" must receive the same general meaning as the words "tribe, community, group" should receive. In this particular c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that even in a case where one of the parents alone is a Hindu, the child will be a Hindu, if it is brought up as a Hindu in the family to which the Hindu parent belongs or belonged, which family would be only a Hindu family. That is why the Supreme Court indicated in the passage already extracted that if the child should be brought up as a Hindu, it must conform to the habits and usages of Hinduism and should be recognised as a Hindu by the society surrounding it. Under these circumstances, we are clearly of the opinion that in the light of the judgment of this court and the Supreme Court referred to above as well as the language of Explanation (b) to section 2(1) of the Act, the unmarried Christian daughter of the assessee cannot be considered to be a Hindu for the purpose of application of the statutory provisions. As a matter of fact, it was not the case of the assessee himself at any stage that the daughter was brought up as a Hindu. On the other hand, he asserted again and again that the daughter is a Christian. If the daughter is a Christian, then by virtue of section 2(1)(c) of the Act, which we have extracted, the Act itself will have no application to her as being outsi ..... 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