Commr. of Wealth Tax, Madras & Ors
Vs. R. Sridharan  INSC 131 (29 April 1976)
Special Marriage Act, 1954 , , Sec. 21-
Marriage between Hindu assessee and Christian female-Whether issue is a Hindu
governed by Hindu Law.
The late R. Sridharan married Rosa Maria
Steinbichler, a christian Austrian of descent, under the Special Marriage Act,
1954 and a son Nicolas Sundaram was born out of the wedlock. In the assessment
proceedings i respect of income tax, wealth tax and expenditure tax, Sridharan
claimed to be assessed in the status of a member of Hindu Undivided Family
consisting of himself and his son, contending that the property held by him was
ancestral and Nicolas Sundaram was a Hindu. The officers dealing with these
taxes rejected the contention and assessed him as an individual on the ground
that succession to the property of a person married under the Special Marriage
Act, 1954, is governed by the Indian Succession Act, 1925 and not by ordinary
Hindu Law and Nicolas Sundaram could not become a member of Hindu Undivided
Family With his father. these orders were affirmed by the Appellate Assistant
Commission i the Appellate Tribunal in appeals by Sridharan against the
On further applications made by Sridharan,
the Income Tax Appellate Tribunal referred the matter to the High Court which
decided in favour of Sridharan but granted a certificate of fitness. Meanwhile,
Sridharan died, and his widow filed wealth tax returns, claiming the status of
a member of Hindu Undivided Family. The Revenue authorities followed their
earlier decisions, and ultimately the matter was referred to the High Court
which decided in favour of respondent Mrs. Sridharan, but granted Leave to
appeal to this Court.
Dismissing the appeals, the Court,
HELD: ( 1 ) Under the codifying, Acts. the
orthodox concept of the term "Hindu" has undergone a radical change
and it has been given an extended meaning. The Acts not only apply to Hindus
but also to a large number of other persons.
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. [478D-E] (2) Section 21 of the Special Marriage Act has no bearing on
the present case. The section does not in any way impair or alter the joint
family structure between n assessee and his son. Nor does it affect the
discretion vested in a Hindu assessee to treat his properties as joint family
properties by taking into his fold his Hindu sons so as to continue joint
family properties [479 A-C] Shastri Yagnapurushdasji & Ors. v. Muldas
Bhundardas Vaishya and Anr. AIR 1966 S.C. 1119; Bhagwan Koer v. J. C. Bose
& Ors. (1904) ILR 31 Cal. 11; Lingappa v. Esudasan (1904) 27 Mad. 13;
Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao & Ors. AIR 1953 SC 433
and Ananthaya v. Vishnu 17 Mad. 160, referred to.
Webster's 3rd New International Dictionary of
the English Language; Encyclopaedia Britannica (15th Edn.);
Gitarahasya by B. G. Tilak Principles of
Hindu Law (14th Edn.) pp. 671 and chap. I para 6 by Mulla, and Hindu Law &
Usage (11th Edn.) pp. 290 by Mayne, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1399 to 1403 of 1970.
479 Appeal from the Judgment and order dated
20th December 1-968 A the Madras High Court in Tax Case No. 314/64 (Reference
No. 82 of 1964) and Civil Appeal No. 301 of 1974 Appeal from the Judgment and
order dated 3rd April 1972 of the Madras High Court in Tax Case No. 328 of 1966
(Reference No. 88/66).
S. T. Desai, J. Ramamurthi; for the appellant
(In CA 1399-1403 of 1970).
S. Swaminathan, Mrs. S. Gopalakrishnan for
the Respondent in all the appeals.
The Judgment of the Court was delivered by
JASWANT SINGH, J. These Appeals Nos. 1399 to 1403 of 1970 and 301 of 1974 by
certificates granted by the High Court of Madras shall be disposed of together
by this judgment as they raise common question of law and fact.
The circumstances giving rise to these
appeals are: The late R. Sridharan along with his father and brothers
constituted a Hindu undivided family governed by Mitakshara law. On June 28,
1952, while he was still unmarried, a partition took place between him, his
brothers and his father. As a result of this partition, a block of shares in T.
V. Sundaram Iyengar and Sons Private Limited and three other limited companies
fell to his share. On June 14, 1956, Sridharan married Rosa Maria Steinbchler,
a Christian woman of Austrian descent, under the Special Marriage Act, 1954.
On November 29, 1957, a son named Nicolas
Sundaram was born out of this wedlock. For the assessment years 1957-58, and
1958-59, Sridharan was assessed to income tax and wealth tax in the status of
an 'individual' on his own declaration to that effect. In the assessment
proceedings in respect of income tax and wealth tax for the assessment years
1959-60, 1960-61 and 1961-62 and in the assessment proceedings under the
Expenditure Tax Act for the year 1961-62, he claimed to be assessed in the
status of a member of Hindu undivided family consisting of himself and his son,
Nicolas Sundaram, contending that the property held by him was ancestral and
Nicolas Sundaram was a Hindu. The Income Tax officer, Wealth Tax officer and
Expenditure Tax officer refused to accede to the contention of Sridharan and
assessed him in the status of an `individual' as in the previous years on the
grounds that the value of the share and other investments standing in his name
being his exclusive properties and by virtue of section 21 of the Special
Marriage Act, 1954, succession to the property of a person whose marriage has
been solemnized under that Act being governed by the Indian Succession Act, 1925,
and not by the ordinary Hindu law, Nicolas Sundaram could not become a member
of Hindu undivided family with his father. Sridharan thereupon went up in
appeal to the Appellate Assistant Commissioner but remained unsuccessful.
The orders passed by the Income 480 Tax
/Wealth Tax/Expenditure Tax officers and the Appellate Assistant Commissioner
were also affirmed in appeals against the assessments respectively made under
the Income-tax Act`, Wealth Tax Act and the Expenditure Tax Act by the
Appellate Tribunal. In the course of its consolidated order rejecting the
appeals, the appellate Tribunal observed that although section 21 of the Special
Marriage Act pre served some of the rights in the family property of the
children born out of marriage solemnized under that Act, it did not clothe such
off spring with the character of Hindus and therefore, there was no Hindu undivided
family of Sridharan and his son which could claim to be taxed as Hindu
Thereafter on the applications made by
Sridharan under section 27 ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of the
Income-tax Act and section 25(l) of the Expenditure Tax Act, the Income-tax
Appellate Tribunal referred the following common question of law arising from
its aforesaid decision for the opinion of the High Court:- "Whether, on
the facts and in the circumstances of the case, the assessee and his son
constituted a Hindu undivided family for purposes of assessment under the
Income-tax, Wealth-tax and Expenditure-tax Acts ?" The High Court
following the decision of this Court in Gowli Buddanna v. Commissioner of
Income-tax(l) held that Sridharan's claim to be reckoned as Hindu undivided
family was well merited and the Tribunal was in error in holding that there was
no Hindu undivided family of Sridharan and his son which could claim to be
assessed and taxed as such either under the Income-tax Act, or Wealth Tax Act
or the Expenditure Tax Act. The High Court accordingly answered the question in
the affirmative but granted certificate of fitness for appeal to this Court.
Sridharan died on April 9, 1962. A few days
after the valuation date relevant for the assessment year 1963-64, his widow
Mrs. Rosa Maria Steinbchler filed a wealth tax return claiming that the
assessment for the assessment year 1962-63 should be made in the status of
Hindu undivided family. The Wealth Tax officer following his earlier decision
in the assessment proceedings in respect of the previous year’s rejected the
claim of Rosa Maria Steinbchler holding that she was not a Hindu and in any
case since her marriage with Sridharan was under the Special Marriage Act, 1954,
Nicolas Sundaram had no right by birth in the properties obtained by the
assessee on partition. He further held that Nicolas Sundaram could claim
Sridharan's property only under the Indian Succession Act, 1925 and not under
the Hindu law. on appeal, the Appellate Assistant Commissioner affirmed the
order of the Wealth Tax officer. A further appeal was 481 "Whether the
assessee, Sridharan and his son constituted A in law a Hindu undivided family
for the purpose of assessment under the Wealth-tax Act, 1957 ?" The High
Court answered the question in the affirmative i.e. . against the Revenue
observing that the decision in the previous reference directly governed the
facts of the fresh reference.
Aggrieved by this order of the High Court,
the appellant applied and obtained leave to appeal to this Court under section
29(1) of the q Wealth-tax Act, 1957 and Article 133(1)(c) of the Constitution
of India. This is how the appeals are before us.
Counsel appearing for the appellants and
respondents have repeated before us the contentions respectively advanced on
behalf of the parties before the High Court.
It cannot be disputed that a joint Hindu
family consists of all persons lineally descended from a common ancestor and
includes their wives and unmarried daughters.
It cannot also be disputed that property
obtained by Sridharan on partition between his father and brothers could become
ancestral property so far as his sons, grandsons and great grandsons were
concerned who could according to Mitakshara law acquire an interest therein by
The sole question which, however, falls for
our consideration in these appeals is whether Nicolas Sundaram is a Hindu
governed by Hindu law. It is a matter of common knowledge that Hinduism
embraces within itself so many diverse forms of beliefs, faiths, practices and
worship that it is difficult to define the term 'Hindu' with precision.
The historical and etymological genesis of
the word "Hindu" has been succinctly explained by Gajendragadkar,
C.J. in Shastri Yagnapurushdasji & ors. v. Muldas Bhundardas Vaishya &
In Unabridged Edition of Webster's Third New
International Dictionary of the English language, the term 'Hinduism' has been
defined as meaning "a complex body of social, cultural, and religious
beliefs and practices evolved in and largely confined to the Indian
subcontinent and marked by a caste system, an outlook tending to view all forms
and theories as aspects of one eternal being and truth, a belief in ahimsa,
karma, dharma, sansara, and moksha, and the practice of the way of works, the
way of knowledge, or the way of devotion as the means of release from the bound
of rebirths; the way of life and form r of thought of a Hindu".
In Encyclopaedia Britannica (15th Edition),
the term 'Hinduism' has been defined as meaning "the civilization of
Hindus (originally, the inhabitants of the land of the Indus River). It
properly denotes the Indian civilization of approximately the last 2,000 years,
which (1) A.I.R. 1966 S.C. 1119.
33-833 SCI/76 482 gradually evolved from
Vedism, the religion of the ancient Indo-European peoples who settled in India
in the last centuries of the 2nd millennium BC. Because it integrates a large
variety of heterogeneous elements, Hinduism constitutes a very complex but
largely continuous whole, and since it covers the whole of life, it has
religious, social, economic, literary, and artistic aspects. As a religion,
Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of
life .... In principle, Hinduism incorporates all forms of belief and worship
without necessitating the selection or elimination of any. The Hindu is
inclined to revere the divine in every manifestation, whatever it may be, and
is doctrinally tolerant, leaving others-including both Hindus and non-Hindus-whatever
creed and worship practices suit them best. A Hindu may embrace a non-Hindu
religion without ceasing to be a Hindu, and since the Hindu is disposed to
think synthetically and to regard other forms of worship, strange gods, and
divergent doctrines as inadequate rather than wrong or objectionable, he tends
to believe that the highest divine powers complement each other for the
well-being of the world and mankind. Few religious ideas are considered to be
finally irreconcilable. The core of religion does not even depend on the
existence or non-existence of God or on whether there is one god or many. Since
religious truth is said to transcend all verbal definition it is not conceived
in dogmatic terms.
Hinduism is, then both a civilization and a conglomerate
of religions, with neither a beginning, a founder, nor a central authority,
hierarchy, or organization. Every attempt at a specific definition of Hinduism
has proved unsatisfactory in one way or another, the more so because the finest
Indian scholars of Hinduism, including Hindus themselves, have emphasized
different aspects of the whole".
In his celebrated treatise
"Gitarahasaya", B.G. Tilak has given the following broad description
of the Hindu religion:- : "Acceptance of the Vedas with reverence;
recognition of the fact that the means or
ways of salvation are diverse; and realisation of the truth that the number of
gods to be worshipped is large, that indeed is the distinguishing feature of
In Bhagwan Koer v. J. C. Bose & ors.(l)
it was held that Hindu religion is marvellously catholic and elastic.
Its theology is marked by eclecticism and
tolerance and almost unlimited freedom of private worship. Its social code is
much more stringent, but amongst its different castes and sections, exhibits
wide diversity of practice. No trait is more marked of Hindu society in general
than its herror of using the meat of the cow.
This being the scope and nature of the
religion, it is not strange that it holds within its fold men of divergent
views and traditions who have very little in common except a vague faith in
what may be called the fundamentals of the Hindu religion.
(1)  I.L.R. 31 Cal. 11.
483 It will be advantageous at this stage to
refer to page 671 of Mulla's A Principles of Hindu Law (Fourteenth Edition),
where the position is stated thus:- : "The word 'Hindu' does not denote
any particular religion or community. During the last hundred years and more it
has been a nomenclature used to refer comprehensively to various categories of
people for purposes of personal law. It has been applied to dissenters and non-
comformists and even to those who have entirely repudiated Brahminism. It has
been applied to various religious sects and bodies which at various periods and
in circumstances developed out of or split off from, the Hindu system but whose
members have nevertheless continued to live under the Hindu law and the Courts
have generally put a liberal construction upon enactments relating to the
personal laws applicable to Hindus".
In paragraph 6 of Chapter I of Mulla's
aforesaid Treatise, the following have been enumerated as persons to whom Hindu
law applies:- "(i) not only to Hindu by birth, but also to Hindus by
religion, i.e. converts to Hinduism;
(ii) to illegitimate children where both
parents are Hindus;
(iii)to illegitimate children where the
father is a Christian and the mother is a Hindu, and the children are brought
up as Hindus. But the Hindu law of coparcenary, which contemplates the father
as the head of the family and the sons as coparceners by birth with rights of
survivorship, cannot from the very nature of the case apply to such children;
(iv) to Jains, Buddhists in India, Sikhs and
Nambudri Brahmins except so far as such law is varied by custom and to Lingayat
who are considered Sudras;
(v) to a Hindu by birth who, having renounced
Hinduism, has reverted to it after performing the religious rites of expiation
and repentence. Or even without a formal ritual of reconversion when he was
recognised as a Hindu by his community;
(vi) to sons of Hindu dancing girls of the
Naik caste converted to Mahomedanism, where the sons are taken into the family
of the Hindu grandparents and are brought up as Hindus;
(vii) to Brahmos; to Arya Samajists; and to
Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is
not varied by custom; and 484 (viii) to Hindus who made a declaration that they
were not Hindus for the purpose of the Special Marriage Act, 1872." This
enumeration is based upon decisions of various courts relating to old
uncodified Hindu law.
In Lingappa v. Esudasen(l) which related to
maintenance, it was held that Hindu law does not apply to the illegitimate
children of a Hindu father by a Christian mother who are brought up a Christians.
This decision indirectly leads to the conclusion that legitimate children of a
Hindu father by a Christian mother who are brought up as Hindus would be
governed by Hindu law.
In Mothey Anja Ratna Raja Kumar v. Koney
Narayana Rao & ors.(2) whole approving the observations made in Ananthaya
v. Vishnu(3) this Court inter alia held that under the Mitakshara law, an
illegitimate son is entitled to maintenance as long as he lives, in recognition
of his status as a member of his father's family.
Under the codifying Acts namely the Hindu
Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and
Guardian ship 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 explanation (b) to section 2(1)
of the Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956 and
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.
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.
Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas
Sundaram is a legitimate child and lineal descendant of Sridharan. There is no
material on the record to show that Nicolas Sundaram was not brought up as a
Hindu or that he did not conform to the habits and usages of Hinduism or that
he was not recognised as a Hindu by the society surrounding him or that he
became a convert to another faith. Sridharan has also unequivocally
acknowledged and expressly declared that he and his son, Nicolas Sundaram
formed a Hindu undivided family. This declaration in the circumstances is sufficient,
as also found by the High Court? to establish that Nicolas Sundaram was brought
up as a Hindu member of the family to which his father belonged. At page 290 of
his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a
child in India, under ordinary circumstances, must be presumed to have his
father's (1)  27 Mad. 13. (2) A.I.R. 1953 S.C. 433. (3) 17 Mad.
485 religion, and his corresponding civil and
social status. He, there- A fore, have no hesitation in holding that Nicolas
Sundaram is a Hindu and he could validly be a member of the Hindu undivided
family headed by his father and be governed by Hindu law.
Section 21 of the Special Marriage Act which
has been heavily relied upon by the Revenue has, in our opinion, no bearing on
the present case. That section provides that succession to the property of a
person whose marriage has been solemnized under the Special Marriage Act, 1954
and the property of the issue of such marriage shall be governed by the
provisions of the Indian Succession Act (XXXIX of 1925).
In other words, the section guarantees inter
alia to the issue of the person whose marriage has been solemnized under the Special
Marriage Act a collateral statutory right of succession to the estate of the
latter in case he dies intestate. It does not in any way impair or alter the
joint family structure between an assessee and his son. Nor does it effect, as
observed by the High Court, the discretion vested in a Hindu assessee to treat
his properties as joint family properties by taking into his fold his Hindu
sons so as to constitute joint family properties.
For the foregoing reasons, we are of the
opinion that the aforesaid question referred to the High Court was rightly
answered by it on both the occasions. In the result, we find no merit in these
appeals which are dismissed with costs.
M.R. Appeals dismissed.