Case: Commissioner of Wealth Tax, Madras Vs. Late R. Sridharan (By Legal Representatives) (And Another Appeal)

JASWANT SINGH J. 1. 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 a 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 P. Ltd. 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 a 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 shares and other investments standing in his name being his exclusive properties and by virtue of secticn 21 of the Special Marriage Act, 1954, succession to the property of a person whose marriage has solemnized under that Act being governed by the Indians Succession Act, 1925, and not by the ordinary Hindu law, Nicolas Sundaram could not become a member of a 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 Inocme-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, the 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 preserved some of the rights in the family property of the children born out of marriage solemnized under that Act, it did not clothe such offspring with the character of Hindus and, therefore, there was no Hindu undivided family of Sridharan his son which could claim to be taxed as Hindu undivided familyThereafter, 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(1) 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 ? " 2. The High Court, following the decision of this court in Gowli Buddanna v. Commissioner of Income-tax held that Sridharans 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 the 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.3. 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 years, 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 Sridharans 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 preferred to the Appellate Tribunal but that too proved abortive. The Tribunal, however, referred the following question of law for the opinion of the High Court" Whether the assessee, Sridharan, and his son constituted in law a Hindu undivided family for the purpose of assessment under the Wealth-tax Act, 1957 ? "4. 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.5. 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 Wealth-tax Act, 1957, and article 133(1)(c) of the Constitution of India. This is how the appeals are before us. 6. Counsel appearing for the appellants and respondents have repeated before us the contentions respectively advanced on behalf of the parties before the High Court. 7. 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 birth. 8. 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. 9. The historical and etymological genesis of the word " Hindu " has been succinctly explained by Gajendragadkar C.J. in Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya. 10. In unabridged edition of Websters 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 sub-continent 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, samsara, 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 round of rebirths: the way of life and form 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 gradually evolved from Vedism, the religion of the ancient Indo-European peoples who settled in India in the last centuries of the 2nd millenium B. C. Besides 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 idea, are considered to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or an 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 organisation. Every attempt it a specific definition of Hindus themselves, have 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 wholeIn his celebrated treatise Gitarahasya 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 Hindu religion." In Bhagwan Koer v. J. C. Bose it was held that Hindu religion is marvellously catholic and elastic. Its theology is marked by electicism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and section, exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror 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. 11. It will be advantageous at this stage to refer to page 671 of Mullas Principles of Hindu Law (fourteenth edition), where the position is stood 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-conformists and even to those who have entirely repudiated Brahmanism. 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 HindusIn paragraph 6 of Chapter I of Mullas aforesaid treatise, the following have been enumerated as persons to whom Hindu law applies. " (i) not only to Hindus 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 form the very nature of the case apply to such children (iv) to Jains, Buddhists in India, Sikhs and Nambudiri Brahmins except so far as such law is varied by custom and to Lingayats 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 repentance. 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 grand-parents and are brought up as Hindus ; (vii) to Brahmos ; to Arya Samajists ; and to Santhals to Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by custom ; and (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. 12. In Lingappa Goundan v. Esudasan, 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 as Christians. This decision obviously and reasonably 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 lawIn Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao, while approving the obseravations made in Ananthaya v. Vishnu, 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 fathers family. 13. Under the codifying Acts, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship 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 Adoptions 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. 14. 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 fathers religion, and his corresponding civil and social status. We, therefore, have no hesitation in holding that Nicolas Sundaram is at Hindu and he could be a member of the Hindu undivided family headed by his father and be governed by Hindu lawSection 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, 1925 (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 affect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties is joint family properties by taking into his fold his Hindu sons so as to constitute, joint family properties. 15.

Decision:
0[ds]It properly denotes the Indian civilization of approximately the last 2, 000 years, which gradually evolved from Vedism, the religion of the ancient Indo-European peoples who settled in India in the last centuries of the 2nd millenium B. C. Besides 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 idea, are considered to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or an 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 organisation. Every attempt it a specific definition of Hindus themselves, have 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 wholeIn his celebrated treatise Gitarahasya B. G. Tilak has given the following broad description of the Hindu religionUnder the codifying Acts, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship 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 Adoptions 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 HinduIn 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 fathers religion, and his corresponding civil and social status. We, therefore, have no hesitation in holding that Nicolas Sundaram is at Hindu and he could be a member of the Hindu undivided family headed by his father and be governed by Hindu lawSection 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, 1925 (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 affect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties is joint family properties by taking into his fold his Hindu sons so as to constitute, joint family properties.