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TMI Blog1971 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... o the possession of the karnavan after those members die. We have earlier seen that the responsibility of performing the marriage ceremonies of the female members continued to be that of the karnavan. He is also responsible for the payment of land revenue in respect of the family properties excepting properties included in schedule " A " to the karar. Under these circumstances, it, is not possible to hold that the karar in question embodied an irrevocable settlement In the. every nature of things, 'the arrangement made under that karar must be held to be one which is revocatole if there is any substantial chaw in the circumstances of the family. For our present purpose it is sufficient if we hold that the properties allotted for the enjoyment of the various members of the family under the karar continued to be the properties of the family. X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings on questions Nos. 1 and 2. Thereafter, this appeal was brought by certificate. The assessee in this case is the Hindu undivided family of which the appellant was the karnavan at the relevant time. The question for decision is whether the income of the properties put in possession of the male members under the karar of 1909 continues to be the income of the family. At present we are not concerned with the income of the properties put in possession of the " Rani group " in view of the decision of the appellate authority which had not been appealed against. If the income in dispute continues to be the income of the family then the revenue is justified in bringing the same to tax under the provisions of the Act. On the other hand if that income had ceased to be the income of the family, then the same cannot be brought to tax in the hands of the assessee. Therefore, the sole question is whether that income is the income of the family. Section 9 of the Act provides : " 9. (1) In computing the total agricultural income of an assessee all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in Kalari are to be met from the income of the " A " schedule properties. The members residing in the Kalari have no right to alienate or encumber the properties allotted to them and all g overnment revenue due in respect of those properties should be paid by them. Party No. 2, the second senior most member in the family, was to be given 7,000 paras of paddy annually for his maintenance and for this purpose paddy lands yielding 3,500 paras of paddy shown in " B " schedule were made over to his possession and Party No. 1, karnavan of the towarwad, was directed to give to party No. 2 from Malayalam era 1085 onwards 3,500 paras of paddy. Further, the karnavan was directed that he should redeem " Karukakod Challa Nilam " and make over the same to party No. 2, but after making over the same to party No. 2 he was not to pay 3,500 paras of paddy referred to earlier. " C " schedule properties yielding an income of 4,750 paras of paddy were allotted for the enjoyment of party No. 3. He was required to maintain himself from out of their income. Properties shown in " D " schedule were set apart for the maintenance of party No. 4. The land revenue of B, C and D schedule properties was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4, continued to be that of the karnavan. The karar also does not provide for devolution of the properties allotted to parties Nos. 2 to 4. Hence, those properties must necessarily go back to the possession of the karnavan after those members die. We have earlier seen that the responsibility of performing the marriage ceremonies of the female members continued to be that of the karnavan. He is also responsible for the payment of land revenue in respect of the family properties excepting properties included in schedule " A " to the karar. Under these circumstances, it, is not possible to hold that the karar in question embodied an irrevocable settlement In the. every nature of things, 'the arrangement made under that karar must be held to be one which is revocatole if there is any substantial chaw in the circumstances of the family. For our present purpose it is sufficient if we hold that the properties allotted for the enjoyment of the various members of the family under the karar continued to be the properties of the family. In view of section 9(1) of the Act, in computing the total agricultural income of the Hindu undivided family, all agricultural income arising from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Income-tax Act, yet the sums paid by the assessee to his step-mother were not " income " of the assessee at all; the decree of the court by charging the appellant's whole resources with a specific payment to his step-mother had to that extent diverted his income from him and had directed it to his step-mother; to that extent what he received for her was not his income; it was not case of the application by the appellant of part of his income in a particalar way; it was rather the allocation of a sum out of his revenue before it became income in his hands. This decision at the first sight appears to lend support to the assessee's contention but in understanding the ratio of the decision. We must bear in mind the fact that in that case the Advocate-General had abandoned before the High Court the contention that the assessee and his step-mother were members of undivided family and accepted the position that the appellant was liable to be assessed as an individual and in no other manner. In view of this concession, the payment that had to be made to the step-mother of the assessee became a charge on the estate even before that estate devolved on him. Therefore, what the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rs. 55,160. This computation was not disputed by him but he sought to deduct Rs. 1,350 in the first assessment year and a sum of Rs. 18,000 in the second assessment year on the ground that under a decree, he was required to pay these sums as maintenance to his wife and his children. In support of his claim, he relied on the decision of the Judicial Committee in Bejoy Singh Dudhuria's case. This court rejected that contention observing : " In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation af ter such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment Which can truly be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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