Commissioner of Income-Tax, Madras Vs.
M. K. Stremann, Madras  INSC 253 (9 November 1964)
09/11/1964 SIKRI, S.M.
CITATION: 1965 AIR 1494 1965 SCR (2) 106
RF 1970 SC1722 (12)
Income-tax Act, 1922 (11 of 1922)-Partition
deed-containing recival that self-acquired property already blended with Joint
Hindu family property--only evidence of blending whether sufficient to show
partition valid to justify an order tinder s. 25A--Or deed merely a transfer to
minors under s. 16(3) (a) (iv).
For some years until 1952-53, the assessee
was assessed as an individual in respect of income from a house that was
admittedly Joint Hindu family property and income from a selling agency. He
maintained only one set of accounts for income from both these sources. On
December 19, 1952, a deed of partition was executed between the assessee and
his three minor children who were represented by their mother.
in the course of assessment proceedings for
the year 195354, the assessee claimed that an order under s. 25A be passed and
separate assessments made on each of the members of the erstwhile family as
from December 19, 1952.
The Income Tax Officer rejected this claim,
holding that merely because the income from ancestral property and self
acquired property was not separately accounted for, the latter did not become
part and parcel of Joint family property; he further held that there was no
partition by virtue of the deed, but simply a direct or indirect transfer made
by the assessee of his own self-acquired property within the meaning of s.
16(3) (a) (iv).
The Appellate Assistant Commissioner and the
Appellate Tribunal confirmed the view taken by the Income-tax Officer, but,
upon a reference made to it, the High Court held that the deed executed in
December 19, 1952, amounted to a valid partition and was not a transfer within
the meaning of s. 16(3) (a) (iv).
It was contended on behalf of Revenue that
the only evidence that all assets and liabilities including the agency business
were transferred to the joint Hindu family was a recital in the partition deed
itself and there was no antecedent blending of the self-aquried property with
ancestral property before it was partitioned among the parties. All the clauses
of the deed took effect on the signature of the deed and no amount of time
elapsed between the alleged blending and partition.
HELD : From the time when instructions were
given that the selfacquired property was to be treated as joint family property
in the deed to be executed, the property assumed the character of the Joint
family property. On execution, the deed became evidence of a pre-existing fact,
i.e of throwing a self-acquired property into the hotch-potch. [110 G] The High
Court was right in holding that the partition proceeded on the basis that the
self-acquired property was made available for partition along with the only
item of joint family property. That itself constituted proof that antecedent to
the partition, however short the interval, there was blending of the self
acquired property of the assessee with his ancestral joint family property. The
result was that at least on December 19, 1952, antecedent to the partition, the
properties became impressed with 107 the character of joint family property.
There was a partition on December 19, 1952. Thereafter, the properties allotted
to the shares of the assessee and his divided song were held by them in
severalty. [110 H; 111 A. C-D] (ii) 'Me partition deed did not amount to direct
or indirect transfer to the minor children by the assessee within s. 16(3) (a)
C.I.T. Gujarat v. Keshavlal Lallubhai, 
2 S.C.R. 99, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1105 of 1963.
Appeal by special leave from the judgment dated
August 30, 1960 of the Madras High Court in C. R. No. 49 of 1956.
K. N. RaJagopala Sastri and R. N. Sachthey,
for the appellant.
R. Ganapathy Iyer, for the respondent.
A. V. Viswanatha Sastri, T. A. Ramachandran,
J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the intervener.
The Judgment of the Court was delivered by
Sikri J. This is as appeal by special leave directed against the judgment of
the Madras High Court answering a question referred to it by the Appellate
Tribunal against the Revenue. The Appellate Tribunal had referred the following
1. Whether there was material for the
Tribunal to reach the conclusion that the various assets in question belonged
only to the assessee in his individual capacity till 19th December 1952 ?
2. If the answer to the first question is in
the affirmative, whether the deed, Annexure 'B' aforesaid, amounted to a
transfer of assets to the three minor children aforesaid so as to attract the
provisions of Section 16 (3) (a) (iv) of the Income-Tax Act ?
3. If the answer to the first question is in
the negative, the Income Tax Officer having rejected the claim of partition
under Section 25A and the assessee not having independently appealed against
such decision, whether the assessee is entitled in law to any modification of
the assessment other than the status alone ? Question No. 1 was answered by the
High Court in favour of the Revenue; question No. 2 against the Revenue, and
question No. 3 in favour of the assessee. The respondent, M. K. Stremann,
hereinafter referred to as the assessee, has not filed any appeal against the
answer given to question No. 1, and this has become 108 final. From the way the
questions have been worded, we are only concerned with the point whether the
High Court rightly answered question No. 2.
The facts relevant for the disposal of this
appeal are as follows. The father of the assessee, Kulandavelu Mudaliar, was an
agent of Muller & Phipps (India) Ltd., for the sale of its pharmaceutical
preparations in Madras. While he was an agent, the assessee was employed as an
assistant by the said Company. Kulandavelu died on July 27, 1938, leaving a
house property at Ayalur Muthial Mudali Street, a few insurance policies and
income-tax refunds due to him. The assessee realised a total amount of Rs.
26,600/from these and with these proceeds he purchased a house at No. 3,
Varadarajulu Naidu Street in December, 1945. There is no dispute that this
property was joint Hindu family propertyOn the retirement of his father as agent
of Muller and Phipps Ltd., the assessee was appointed as agent in his
individual capacity. From 1938-39 till 1952-53, he was assessed as an
individual not only on the income from the agency but also income from joint
Hindu family property. He maintained only one set of accounts both for his
income from the agency and from joint family property. In 1944, one son was
born, and another son was born in 1945.
On December 19, 1952, the assessee executed a
deed of partition and on its basis claimed before the Income Tax Officer, in
the course of assessment proceedings for the assessment year 1953-54
(accounting year ending March 31, 1953) that an order under s. 25A be passed
and separate assessments made on each of the members of the erstwhile family as
from December 19, 1952. The Income Tax Officer held that 'the mere existence of
any ancestral property, however small, would not render all self-acquired
property part and parcel of the joint Family assets by the mere fact that the
incomes are not separately accounted for'. He held that there was no partition
but simply a case of donation made by the assessee of his own self-acquired
property and s. 16 (3) (a) (iv) was attracted. In the alternative, he held that
assuming that the assessee's assets have been "thrown into the common
stock and after becoming assets of the joint family was divided between him and
minor children, Section 16(3)(a)(iv) is again attracted because the said
section applies to both the direct and indirect transfers of the assets to
minor children.... It would have been an indirect transfer to make (minor)
children if the transfer is effected by the interposition of a joint family by
a legal fiction." 109 On appeal, an additional point was sought to be made
by the assessee that the commission business was ancestral business in his
hands, but the Appellate Assistant Commissioner did not accede to this
contention. He further held that the Income Tax Officer was justified in
ignoring the partition deed.
The Appellate Tribunal held that there was no
evidence that all assets and -liabilities including the agency business were
transferred to the JHF in 1944, when his first son was born, or later. It
further observed :
"The first time we hear of the family
possessing the assets in question is the deed of dissolution in which there is
a recital to that effect. This certainly cannot constitute an unequivocal
declaration of the admitted individual investing his self-acquired properties
with the character of joint family property referred to in the judgment in 28
I.T.R. 352 (R. Subramania Ayyar v. Commissioner of Income Tax)".
Accordingly, it held that the partition deed
came within the ambit of s. 16. As stated above, the Appellate Tribunal
referred three questions to the High Court. The High Court answered the
questions in the manner mentioned above.
Mr. Rajagopala Sastri, the learned counsel
for the Revenue, has urged the following points :
(1)That question No. 2 did not arise out of
the order of the Appellate Tribunal and the High Court should have refused to
answer the question.
(2)That before the partition there was no
antecedent blending of self-acquired properties with ancestral property.
(3)That the partition deed effects a direct
transfer of assets to the minor children within s. 16(3) (a) (iv).
The first point was not raised before the
High Court, or in the statement of the case in this Court. We accordingly
cannot allow this point to be raised at this stage.
The second point depends on the
interpretation of the partition deed, dated December 19, 1952. This deed was
executed between the assessee, his two minor sons and minor daughter, the
latter three being represented by their mother. It recites that the father of
the assessee died on July 27, 1938, leaving a house and other movable investment
and cash and that the assessee succeeded to 110 the said property and the
agency of Messrs Muller & Phipps.
Then follow two clauses which are important
and they are :
"Whereas the party of the first part has
been earning commission and acquiring properties and blending his money with
the assets inherited from his father and treating the entire properties extant
before and after the birth of the parties of the second and (third) parts till
this date as joint family property without making any discrimination or
Whereas the party of the first part is
desirous of making the legal character of the assets that exist now and the
legal relationship between the parties definite and to make an arrangement of
partition of the parties of the first, second and third parts and also to
provide for making jewels, maintenance and marriage for the party of the fourth
part, in exercise of his powers as a Hindu father, in order to ensure peaceful
enjoyment and friendly relationship between the parties and to keep his own
future earnings separate with powers to deal with them in any manner he
liked." Mr. Sastri contends that as the recital in the first clause
reproduced above has been found to be false, there is no antecedent blending of
the self-acquired property with ancestral property before it is partitioned
among the parties. He says that all the clauses took effect on the signature of
the deed, and no moment of time elapsed between the alleged blending and
partition. We are unable to accede to this contention. In the first clause
above, it is recited that the assessee has been blending his money with
inherited assets till this date. In other words, it asserts a continuous course
of conduct ending with the day when the deed was executed. The deed seems to be
carefully drafted and the assessee must have given instructions as to the
contents of the draft. When instructions are given that the self-acquired
property is to be treated as joint family property, in our opinion, at that
moment the property assumes the character of joint family property. On
execution, the deed becomes evidence of a preexisting fact, i.e. of throwing
the self-acquired property into the hotchpotch. The words "till this
date" are significant and must be given effect to. The High Court, in our
opinion, was right in observing that "the partition proceeded on this
basis that the self acquired properties were made available for partition
alongwith the only item of joint family property. That itself constituted 111
proof that antecedent to the partition, however short the interval, there was
blending of the self-acquired properties of the assessee with his ancestral
joint family property." We agree with the High Court that "whether
the averment in relation to the past was supported by other evidence or not, it
certainly was unequivocal that the properties dealt with at the partition were
treated by the volition of the assessee as the properties available for
partition between the members of the joint family. It was certainly an
unequivocal declaration that all the properties dealt with under that partition
had been impressed with the character of joint family properties, properties
belonging to the joint family of the assessee and his sons. The genuineness of
the transaction itself was never in issue. The result was that at least on 19th
December, 1952, antecedent to the partition, the properties became impressed
with the character of joint family property. There was a partition on 19th
December, 1952. Thereafter, the properties allotted to the shares of the
assessee and his divided sons were held by them in severalty." We have
just pronounced judgment in The Commissioner of Income Tax, Gujarat v.
Keshavlal Lallubhal(1), and following that judgment we hold that there is no
force in the third point raised by Mr. Sastri.
Agreeing with the High Court, we hold that
there was no direct or indirect transfer of assets to the minor children by the
assessee within s. 16 (3) (a) (iv).
The appeal accordingly fails and is dismissed
Appeal dismissed (1)  2 S.C.R. 99.