Case: C. Krishna Prasad Vs. Commissioner of Income Tax Bangalore

above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.9. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil, AIR 1943 PC 196 . As considerable reliance has been placed upon that case,, it may be necessary to deal with that case at some length. The dispute in that case was between parties governed by Hindu law and related to watan lands. The pedigree table of the parties was as under:Dhulappas sons Punnappa and Hanamantappa separated in 1857. The watan lands in dispute went to the share of Punnappa. Narayan one of the sons of Punnappa, separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in 1905, leaving his widow Gangabai and son Keshav. Narayan died issueless in 1908 leaving two plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by inheritance on Keshav. Keshav died unmarried in l9l7. At that time his nearest heir was his collateral Shankar defendant. Shankar obtained possession in 1928 of the land in dispute, which had been left by Keshav after lounging a suit against Gangabai. In 1930 Gangabai adopted Anant plaintiff as a son to her deceased husband Bhikappa. In 1932 Gangabai as the next friend of Anant brought suit for possession of the land in dispute against Shankar. The trial court decreed the suit. On appeal the High Court dismissed the suit for possessing. On further appeal the Judicial Committee restored the decree of the trial court. It was held by the Judicial Committee that the power of a Hindu widow to adopt does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The Judicial Committee also held that on the death of a sole surviving coparcener a Hindu joint family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person other than his adoptive father if such estate has vested before the adoption in some heir other than the adopting mother.10. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the above period.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Section 4 of the Act provides for the charging of income-tax on the total income of every person subject to the conditions prescribed in that section. "Person" has been defined in Section 2 (31) of the Act and includes inter alia, an individual and a Hindu undivided family.The inherent fallacy of the case set up on behalf of the assessee-appellant, in our opinion, is that according to him a single individual can constitute a Hindu undivided family and be assessed as such. "Family" connotes a group of people related by blood or marriage. According to Shorter Oxford English Dictionary, 3rd Ed. the word "Family" means the group consisting of parents and their children, whether living together or not; in wider sense, all those who are nearly connected by blood or affinity; a persons children regarded collectively; those descended or claiming descent from a common ancestor; a house, kindred, lineage; a race; a people or group of peoples. According to Aristotle (Politics I), it is the characteristic of man that he alone has any sense of good and evil, or just and unjust, and the association of living beings who have this sense make a family and a State. It would follow from the above that the word "Family" always signifies a group. Plurality of persons AS an essential attribute of a family. A single person, male or female, does not constitute family. He or she would remain, what is inherent in the very nature of things, an individual a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Section 2 (31) of the Act treats a Hindu undivided family, as an entity distinct and different from an individual and it would, in our opinion, be wrong not to keep that difference in view.7. It is well settled that 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 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. The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widows of deceased male members. The expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family understood under the various schools of HinduThe share which a coparcener obtains on partition of ancestral property is ancestral propertyas regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mullas Principles of Hindu Law 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, thealienationwhether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten (see p. 320 ibid.). In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present kill ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate arid justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether one individual can constitute a Hindu undivided family, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till l930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death (see p. 543 of Mullas Principles of Hindu Law 14th Ed.). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the tune of latters death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the Hindu undivided family during the aboveCourt in the case of Gowli Buddanna v. Commr. ofMysore (1966) 60 ITR 293   = (AIR 1966 SC 1523  ) refrained from expressing an opinion on the point "whether a Hindu undivided family may for the purposes of the IndianAct be treated as a taxable entity when it consists of a single membermale or female."5. After hearing the learned counsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee.