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 appellant
A V Viswanatha Sastri R Ganapathy lyer and R N Sach they for the respondent
section 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 section 661 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 section 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 section 262 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 Rai chur which before January 26 1950 formed part of the territory of HEH 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 section 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 
227 The first contention is plainly unsustainable
Under section 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 vs Commissioner of Income tax Bengal1 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 64 IA 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 7200 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 3600 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 prescrib ed under the Rules which by section 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 informa tion 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 applies
229 Sub section 1 of section 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 case1 in which they disapproved of the view expressed by the Bombay High Court in Commissioner of Income tax Bombay vs 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 case1 which dealt with a group of appeals from the judgment of the Calcutta High Court in In re Moolji Sicka  Others3 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 belongednot to the assessee LR 64 T A 28
3 2 230 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 familyThe Bombay High Court on the other hand inLaxminarayan s case having held that the seehis 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 family property 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 ie 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 case1 the property was an cestral 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 ITR 367
L10SupCI66 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 case1 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 case1 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 section 55 of the Indian Income tax Act 1922 Commissioner of Income tax vs A P Swamy Go medalli8
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 case1 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 case3
A recent judgment of the Judicial Committee in a case aris ing from Ceylon Attorney General of Ceylon vs A R Aruna chalam 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 Attorney 2 64 IA 28
3 4 ITR Suppl
233 General vs A R Arunachalam Chettiar No 1 LR1957 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 section 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 un divided 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 therefrom 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 dismissed


Summary:
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 section 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 section 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 indivi dual
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 therefrom was taxable as income of the Hindu undivided family
234 D Under section 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 property
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 vs CIT Bengal 64 IA 28 C17 
 Bombay vs Gomedalli Lakshminarayan  ln re Moolji Sicka  others  CIT vs A P Swamy Gomedalli  Attorney General of Ceylon vs A R Arunachalam Chettiar and others  34 ITR Supp 42 discussed