Gowlibuddanna Vs. Commissioner of
Income-Tax, Mysore, Bangalore  INSC 7 (10 January 1966)
10/01/1966 SHAH, J.C.
CITATION: 1966 AIR 1523 1966 SCR (3) 224
R 1970 SC 14 (8,9) R 1970 SC 343 (3) R 1971
SC 33 (8) D 1975 SC 498 (4) F 1976 SC 109 (14,15,33,36,39) R 1978 SC 504 (7) R
1985 SC 716 (7) RF 1988 SC 845 (7)
Income Tax Act, 1922 (11 of 1922), s. 3-Hindu
undivided family-Whether includes joint family with one surviving male member
and female members.
B, his wife, his two unmarried daughters and
the appellant who was B's adopted son, were members of a Hindu undivided
family. In respect of the income from dealings of the family, B was assessed
during his life-time in the status of a manager of the Hindu undivided family.
After his death for the assessment year 1951-52, the Income-tax Officer the
appellant on the basis that the income was that of a Hindu undivided family and
rejected the latter's contention that he should be assessed as an individual.
The order of assessment was confirmed by the Appellate Assistant Commissioner,
the Tribunal and on a reference, by the High Court.
It was contended on behalf of the appellant
that the expression 'Hindu undivided family' used in s. 3 of the Income Tax
Act, 1922, means a Hindu coparcenary and when on the death of one out of two
co-parceners the entire property devolves upon a single co-parcener, asssesment
cannot be made of the surviving co-parcener, in the status of a Hindu undivided
family. Alternatively it was contended that even if the entity 'Hindu undivided
family' in s. 3 is intended to mean a Hindu joint family. a sole surviving male
member of the family, even if there be widows in the family entitled to
maintenance, may only be assessed as an individual.
HELD : Property of a Joint family does not
cease to belong to the family merely because the family is represented by a
single co-parcener who possesses rights similar to those of an owner of
property. In the present case the property which yielded the income originally
belonged to a Hindu undivided family. On the death of B although the family
which included a widow and females born in the family was represented by the
appellant alone, the property continued to belong to the undivided family and
income received there from was taxable as income of the Hindu undivided family.
[234 D] Under s. 3 of the Act, it is not a Hindu coparcenary but a Hindu
undivided family which one of the assemble entities.
A Hindu joint family consists of all persons
lineally descended from a common ancestor and includes their wives and
unmarried daughters. A Hindu coparcenary is a much narrower body and includes
only those persons who acquire by birth a status in the joint or co-parcenary
Therefore there may be a Joint Hindu family
consisting of a, single male member and widows of deceased of co-parceners.
[227 A] There was no force in the alternative
plea that there must be at least two male members to form a Hindu undivided
family as a taxable entity. The expression 'Hindu undivided family' in the Act
is used in the sense in which a Hindu joint family is understood in Hindu law.
Under the 225 Hindu system of law a joint family consist of a single male
member and widows of deceased male members and there is nothing in the Act to
indicate that a Hindu undivided family as an assessable entity must consist of
at least two male members. [231 E] Kalyanji Vithaldas & Others v. C.I.T.,
Bengal, 5 I.T.R. 90 (64 I.A. 28) C.1.7'., Bombay v. Gomedalli Lakshminarayan, 3
I.T.R. 367; ln re Moolji Sicka & others, 3 I.T.R. 123;
C.I.T. v. A. P. Swamy Gomedalli, 5 I.T.R.
416; AttorneyGeneral of Ceylon v. A. R. Arunachalam Chettiar and others, L.R.
 A.C. 540; 34 I.T.R. Supp. 42, discussed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 328 of 1965.
Appeal from the judgment and order dated June
20, 1962 of the Mysore High Court in Income-tax Reference Case No. 15 of 1961.
K. Srinivasan and R. Gopalakrishnan, for the
A. V. Viswanatha Sastri, R. Ganapathy lyer
and R. N. Sachthey, for the respondent.
S. T. Desai, R. P. Kapur for I. N. Shroff,
for the intervener.
The Judgment of the Court was delivered by
Shah, J. One Buddappa, his wife, his two unmarried daughters and his adopted
son Buddanna were members of a Hindu undivided family. Buddappa died on July 9,
1952. In respect of the business dealings of the family, Buddappa was assessed
during his life-time in the status of a manager of the Hindu undivided family.
For the assessment year 1951-52 the Additional Income-tax Officer, Raichur
assessed Buddanna in respect of the income of the previous year which ended on
November 8, 1950 as a Hindu undivided family under the title "Sri Gowli
Buddappa (deceased) represented by his legal successor Sri Gowli Buddanna, On
Mills Owner, Raichur". The order of assessment was confirmed in appeal by
the Appellate Assistant Commissioner, subject to the variation that the
assessment was made under the title "Buddanna a Hindu undivided
family". The Income-tax Appellate Tribunal confirmed the order of the
Appellate Assistant Commissioner.
The Tribunal then referred the following
questions of law to, High Court of Mysore for opinion under s. 66(1) of the
Indian Income-tax Act :
(i) Whether the sole male surviving coparcener
of the Hindu joint family, his widowed mother and sisters constitute a Hindu
undivided family within the meaning of the Income-tax Act ? 226 (ii) Whether
the assessment of the income in the hands' of the Hindu undivided family was
correct ? (iii) Whether the Appellate Assistant Commissioner was entitled to
correct the status ?" The High Court recorded answers in the affirmative
on all the questions. With certificate granted by the High Court under s. 66-A
of the Indian Income-tax Act, Buddanna has appealed to this Court.
Before the Appellate Assistant Commissioner
it was contended by Buddanna that he could in law have only been assessed as an
individual and that the Income-tax Officer was precluded by virtue of the
proviso to s. 26(2) to pass the order for assessment for the year 1951-52
against him. The Appellate Assistant Commissioner and the Appellate Tribunal
rejected that contention.
Buddappa was a resident of and carried on
business at Raichur which before January 26, 1950, formed part of the territory
of H.E.H. the Nizam. The joint family of Buddappa and Buddanna was governed by
the Mitakshara School of Hindu law, and there was at the material time no
legislation in force in the territory by which on the death of a male member in
a joint Hindu family interest in the family estate devolved upon his widow.
Such a widow had therefore only a right to receive maintenance from the estate.
Counsel for the appellant urged that the
expression "Hindu undivided family" used in s. 3 of the Income-tax Act
a Hindu coparcenary and when on the death of one out of two coparceners the
entire property devolves upon a single coparcener, assessment cannot be made on
the surviving coparcener in the status of a Hindu undivided family.
Alternatively, it was contended that even if
the entity Hindu undivided family in the charging section of the Income-tax Act
is intended to mean a Hindu joint family, there must be at least two male
members in the family, and where there are not two such members the sole
surviving male member of the family, even if there be widows entitled to
maintenance out of the estate, may be assessed in the status of an individual,
and not of a Hindu undivided family, unless , . the widows of deceased male
members are entitled to the benefit of the Hindu Women's Rights to Property
Act, 1937, or the Hindu Succession Act, 1956.
227 The first contention is plainly
unsustainable. Under s. 3 of the Income-tax Act not a Hindu coparcenary but a
Hindu undivided family is one of the assessable entities. A Hindu joint family
consists of all persons lineally descended from a common ancestor, and includes
their wives and un-married daughters. 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 coparcenary property, these being the sons,
grandsons and great-grandsons of the holder of the joint property for the time
being. Therefore there may be a joint Hindu family consisting of a single male
member and widows of deceased coparceners. In Kalyanji Vithaldas & Others
v. Commissioner of Income-tax, Bengal(1), delivering the judgment of the
Judicial Committee, Sir George Rankin observed:
"The phrase "Hindu undivided
family" is used in the statute with reference not to one school only of
Hindu law but to all schools;
and their Lordships think it a mistake in
method to begin by pasting over the wider phrase of the Act the words
"Hindu coparcenary", all the more that it is not possible to say on
the face of the Act that no female can be a member." The plea that there
must be at least two male members to form a Hindu undivided family as a taxable
entity also has no force. The expression "Hindu undivided family" in
the Income-tax Act is used in the sense in which a Hindu joint family is
understood under the personal law of Hindus.
Under the Hindu system of law a joint family
may consist of a single male member and widows of deceased male members, and
apparently the Income-tax Act does not indicate that a Hindu undivided family
as an assessable entity must consist of at least two male members.
Counsel for the appellant said that there are
certain intrinsic indications in the annual Finance Acts which support the
contention that the income received or arising from property in the hands of a
sole surviving male member in a joint Hindu family, even if there be females
having a right to maintenance out of that property, is taxable as income of an
individual, and not of the family. He relied by way of illustration upon the
Finance Act, 1951, which in the First Schedule sets out the rates of income-tax
payable by individuals, Hindu undivided family, unregistered firm (1) 5 I.T.R.
90=L.R. 64 I.A. 28.
228 and other association of persons. The
relevant part of the First Schedule prescribing rates of tax is as follows
"Provided that(i) no income-tax shall be payable on a total income which,
before deduction of the allowance, if any, for earned income, does not exceed the
limit specified below;
The limit referred to in the above proviso
shall be(i) Rs. 7,200 in the case of every Hindu undivided family which
satisfies as at the end of the previous year either of the following
conditions, namely :
(a) that it has at least two members entitled
to claim partition who are not less than 18 years of age; or (b) that it has at
least two members entitled to claim partition neither of whom is a lineal
descendant of the other and both of whom are not lineally descended from any other
living member of the family; and (ii) Rs. 3,600 in every other case." But the.
Schedule sets out the limits of exempted income:
it does not state or imply that a Hindu
undivided family must consist of at least two members entitled to claim
partition. The text of the clause furnishes a clear indication to the contrary.
Reliance was also placed upon the form of
"Return" prescribed under the Rules, which by s. 59 of the Income-tax
Act, 1922 have effect as if enacted in the Act. Part IIIA of the Form prescribes
certain particulars to be incorporated in the case of a Hindu undivided family,
viz. names of members of the family at the end of the previous year who were
entitled to claim partition, relationship, age at the end of the previous year
and remarks, but thereby it is not intended that a Hindu undivided family as an
assessable entity does not exist so long as there are not at least two or more
members entitled to claim partition. The information is required to be given in
Part MA of the Form merely to enable the Income-tax Officer to consider which
of the two parts of the proviso in the First Schedule to the relevant Finance
Act prescribing the limit of exemption in respect of the Hindu undivided family
229 Sub-section (1) of s. 25-A on which
reliance was placed also does not imply that a Hindu undivided family must
consist of more male members than one. The subsection only prescribes the
procedure whereby the members of a family which has kither to been assessed in
the status of a Hindu undivided family may obtain an order that they may,
because of partition of the joint status, be assessed as separated members. 'Me
clause is purely procedural: it does not enact either expressly or by
implication that a Hindu undivided family assessed as a unit must consist of at
least two male, members who are capable of demanding a partition.
Counsel for the appellant placed strong
reliance upon certain observations of the Judicial Committe in the judgment in
Kalyanji Yithaldas's case(1) in which they disapproved of the view expressed by
the Bombay High Court in Commissioner of Income-tax Bombay v. Gomedalli
Lakshminarayan (2 ). In the case decided by the Bombay High Court a joint
family consisted of a father and a son and their respective wives. The father
died, and in the year of assessment the joint family consisted of the son, his
mother and his wife. In dealing with the question referred by the Commissioner
of Income-tax whether the income received by the son should be regarded as his
individual income or as the income of a Hindu undivided family for the purpose
of assessment to super-tax under the Indian Income-tax Act, the Bombay High
Court held that the expression "Hindu undivided family" as used in
the Income-tax Act includes families consisting of a sole surviving male member
and female members entitled to maintenance, and the income of the assessee
should therefore be treated as the income of a Hindu undivided family. In
Kalyanji Vithaldas's case(1) which dealt with a group of appeals from the judgment
of the Calcutta High Court in In re Moolji Sicka & Others(3) the Judicial
Committee observed :
"The High Court (of Calcutta) approached
the cases by considering first whether the assessee's family was a Hindu
undivided family, and in the end left unanswered the question whether the
income under assessment was the income of that family. This is due no doubt to
the way in which the Commissioner had stated the questions. But, after all if
the relevant Hindu law had been that the income belonged,.not to the assessee 5
I.T.R. 90 -L.R. 64 T. A. 28.
(3) 3 I.T.R. 123.
(2) 3 I.T. R. 367.
230 himself, but to the assessee, his wife
and daughter jointly, it is difficult to see how that association of
individuals could have been refused the description "Hindu joint
family"The Bombay High Court, on the other hand, int axminarayan's case
having held that the see his wife and mother were a Hindu undivided family,
arrived too readily at the conclusion that the income was the income of the
family." The Judicial Committee further observed "Under Section 3 or
Section 55 income is not to be attributed to any one of the five classes of
persons mentioned by any loose or extended interpretation of the words, but
only where the application of the words is warranted by their ordinary legal
meaning . . . . In an extra legal sense, and even for some purposes of legal
theory, ancestral property may perhaps be described, and usefully described, as
but it does not follow that in the eye of the
Hindu law it belongs, save in certain circumstances, to the family as distinct
from the individual. By reason of its origin a man's property may be liable to
be divested wholly or in part on the happening of a particular event, or may be
answerable for particular obligations, or may pass at his death in a particular
way; but if, in spite of all such facts, his personal law regards him as the
owner, the property as his property and the income therefrom as his income, it
is chargeable to income-tax as his, i.e, as the income of an individual. In
their Lordships' view it would not be in consonance with ordinary notions or
with a correct interpretation of the law of the Mitakshara, to hold that
property which a man has obtained from his father belongs to a Hindu undivided
family by reason of his having a wife and daughters." The facts of the
cases which were decided by the Judicial Committee need to be scrutinized
carefully. Before the Judicial Committee there were six appeals by six partners
of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj,
Kanji and Sewdas. Moolji, Purshottam and Kalyanji had each a son or sons from
whom he was not divided. But the income of the firm, which had to be assessed
to super-tax was the separate 231 income of each of these partners. Chaturbhuj
had a wife and daughter but no son, and the income was his separate property.
Kanji and Sewdas, sons of Moolji, were married men, but neither had a son :
they received by gift from Moolji their respective interests in the firm, and
for the purpose of the case it was assumed that the interest of each was
ancestral property in which if he had a son the son would have taken an
interest by birth. But no son having been born, the interest of Kanji and
Sewdas in the property was not diminished or qualified. The Judicial Committee
held that the wife and the daughters of a Hindu had right to maintenance out of
his separate property as well as out of his coparcenary interest, but the mere
existence of a wife or daughter did not make ancestral property in his hands
joint. They observed :
"Interest' is a word of wide and vague
significance, and no doubt it might be used of a wife's or daughter's right to
be maintained which right accrues in the daughter's case on birth; but if the
father's obligations are increased, his ownership is not divested, divided or
impaired by marriage or the birth of a daughter. This is equally true of
ancestral property belonging to himself alone as of self-acquired
property." The Judicial Committee accordingly held that in none of the six
appeals before them could the income falling to the shares of the partners of a
registered firm be treated as income of a Hindu undivided family and assessed
on that footing. In the view of the Judicial Committee, income received by four
out of the six partners was their separate income: in the case of the remaining
two partners the income was from sources which were ancestral. But merely
because the source was held by a member who had received it from his father and
was on that account ancestral, the income could not be deemed for purposes of
assessment to be income of a Hindu undivided family, even though Kanji had a
wife and a daughter, and Sewdas had a wife who had rights to be maintained
under the Hindu law.
In Gomedalli Lakshminarayan's case(1) the
property was ancestral in the hands of the father, and the son had acquired by
birth an interest therein. There was a subsisting Hindu undivided family during
the life-time of the father and that family did not come to an end on his
death. On these facts the High Court of Bombay held that the income received
from the property was (1) S I.T.R. 367.
L10SupCI/66-2 232 liable to super-tax in the
hands of the son who was the surviving male member of the Hindu undivided
family in the year of assessment. This distinction in the facts in the case
then under discussion and the facts in Gomedalli Lakshminarayan's case(1) was
not adverted to and the Board observed in Kalyanji Vithaldas's case (2) that
the Bombay High Court "arrived too readily at the conclusion that the
income was the income of the family." When Gomedalli Lakshminarayan's
case(1) was carried in appeal to the Judicial Committee, the Board regarded
themselves as bound by the interpretation of the words "Hindu undivided
family" employed in the Indian Income-tax Act in the case of Kalyanji
Vithaldas (2) , and observed that since the facts of the case were not in any
material respect different from the facts in the earlier case, the answer to
the question referred should be that "the income received by right of
survivorship by the sole surviving male member of a Hindu undivided family can
be taxed in the hands of such male member as his own individual income for the
purpose of assessment to super-tax under s. 55 of the Indian Income-tax Act, 1922.":
Commissioner of Income-tax v. A. P. Swamy Gomedalli(8).
It may however be recalled that in Kalyanji
Vithaldas's case( 2 income assessed to tax belonged separately to four out of
six partners : of the remaining two it was from an ancestral source but the
fact that each such partner had a wife or daughter did not make that income
from an ancestral source income of the undivided family of the partner, his
wife and daughter. In Gomedalli Lakshminarayan's case(1) the property from
which income accrued belonged to a Hindu undivided family and the effect of the
death of the father who was a manager was merely to invest the rights of a
manager upon the son. The income from the property was and continued to remain
the income of the undivided family.
Ibis distinction which had a vital bearing on
the issue falling to be determined was not given effect to by the Judicial
Committee in A. P. Swamy Gomedalli's case(3).
A recent judgment of the Judicial Committee
in a case arising from Ceylon-Attorney-General of Ceylon v. A. R. Arunachalam
Chetiar and Others (4 ) is in point. One Arunachalam a Nattukottai Chettiar and
his son constituted a joint family governed by the Mitakshara School of Hindu
law. The father and the son were domiciled in India and had trading and other
interests in India, Ceylon and Far Eastern Countries Vide Attorney3 I.T. R.
367. (2) 5 I.T.R. 90-L.R. 64 I.A. 28.
(3) 5 I.T.R. 416. (4) L.R.  A.C. 540:34
233 General v. A. R. Arunachalam Chettiar
(No. 1)-(L.R. A. C. 513). The undivided son died in 1934 and Arunachalam
became the sole surviving coparcener in a Hindu undivided family to which a
number of female members belonged.
Arunachalam diedin 1938 shortly after the
Estate Duty Ordinance No. 1 of 1938 came into operation in Ceylon. By s. 73 of
the Ordinance itwas provided that property passing on the death of a member of
a Hindu undivided family was exempt from payment of estate duty. At all
material times, the female members of the family had the right of maintenance
and other rights which belonged to them as such members. The widows in the
family including the widow of the predeceased son had also the power to
introduce coparceners in the family by adoption, and that power was exercised
after the death of Arunachalam. On a claim to estate duty in respect of
Arunachalam's estate in Ceylon, it was held that Arunachalam was at his death a
member of a Hindu undivided family, the same undivided family of which his son,
when alive was a member, and of which the continuity was preserved after
Arunachalam's death by adoptions by the widows of the family. The Judicial
Committee observed at p. 543:
"........ though it may be correct to
speak of him (the sole surviving coparcener) as the "owner", yet it
is still correct to describe that which he owns as the joint family property.
For his ownership is such that upon the adoption of a son it assumes a
different quality : it is such too, that female members of the family (whose
members may increase) have a right to maintenance out of it and in some
circumstances to a charge for maintenance upon it. And these are incidents
which arise, notwithstanding his so-called ownership, just because the property
has been and has not ceased to be joint family property..... it would not appear
reasonable to imp-art to the legislature the intention to discriminate, so long
as the family itself subsists, between property in the hands of a single
coparcener and that in the hands of two or more coparceners." Dealing with
the question whether a single coparcener can alienate the property in a manner
not open to one of several coparceners, they observed that it was, "can
irrelevant consideration. Let it be assumed that his power of alienation is
unassailable: that means no more than that he has in the circumstances the
power to alienate joint family property. That is what it is 234 until he
alienates it, and, if he does not alienate it, that is what it remains. The
fatal flaw in the argument of the appellant appeared to be that, having
labelled the surviving coparcener "owner", he then attributed to his
ownership such a congeries of rights that the property could no longer be
called "joint family property". The family, a body fluctuating in
numbers and comprised of male and female members, may equally well be said to
be owners of the property, but owners whose ownership is qualified by the
powers of the coparceners. There is in fact nothing to be gained by the use of
the word "owner" in this connexion. It is only by analysing the
nature of the rights of the members of the undivided family, both those in
being and those yet to be born, that it can be determined whether the family
property can properly be described as "joint property" of the
undivided family." Property of a joint family therefore does not cease to
belong to the family merely because the family is represented by a single
coparcener who possesses rights which an owner of property may possess. In the
case in hand the property which yielded the income originally belonged to a
Hindu undivided family. On the death of Buddappa the family which included a
widow and females born in the family was represented by Buddanna alone but the
property still continued to belong to that undivided family and income received
there from was taxable as income of the Hindu undivided family.
The High Court was therefore right in
recording their answers referred for opinion.
We may observe that in this case we express
no opinion on the question whether a Hindu undivided family may for the purpose
of the Indian Income-tax Act be treated as a taxable entity when it consists of
a single member-male or female.
The appeal is dismissed with costs. Appeal