COMMISSIONER OF WEALTH TAX, WEST BENGAL A

CHAMPA KUMARI SINGHI & ORS.

Jauary 19, 1972

[K. S. HEGDE, A. N. GROVER AND A. N. RAY, JJ.]

Wealth Tax Act, 1957, Section 3-Jain undivided family, whether Hindu Vndivided Fa111ily.

The High Court held that the assessee, a Jain undivided family was not a Hindu undivided family within the meaning of section 3 of Wealth

Tax Act, 1957. According to the High Court, in order to form a Hindu C undivided family its members must be Hindus; the assessee family being Jains were not Hindus and so its members could not form a Hindu undivided family although it was "capable of forming a unit of very much of the same type and g_overned by the law applying to a Hindu undivided family". On the question whether the word 'Hindu' preceding the words undivided family signifies that the undivided family should be of th05e (i) who profess Hindu religion; or (ii) to whom Hindu Law applies; or,

(iii) who though not professing Hindu religion have come to be regarded D as Hindu undivided family by judicial and legislative prac'ice,

HELD : The expression Hindu undivided family includes 'Jain undivided family'.

For a Jong time Courts seem to have taken the view that Jains are Hindu dissenters. [.123 EJ ·

Blzagwandas Tejmal v. Rajmal, (1873) 10 Bbm. HCR. 241, Lala Mohabeer Pershad v. Musammut Kundar Koover, 8 Cal. W.Rep. 116 Civ. Rul and Sheokuarbai v. Jeoraj, [1921) P.C. 77, referred to.

The above view has been challenged by Jain historians and writers and it has been maintained that Jains are quite distinct f:rom Hindus and have

a separate code of law which unfortunately was not brought to the notice of the courts. [124 EJ

Bobba/adi GatePP• v. Bobbaladi Eramma & Others, Al.R. 1927 Mad. 228 and C.R. Jain, Jain Law, (1926) pp, 3-23, 21~258, referred to.

But, the sugges'tion that Jain law which is found in the av&ilable books should still be applied and the error which bas crept in the matter of jains being governed by Hindu Law should be rectified cannot possibly be follow. ed partic; ularly in view of statutory enactment, s which in express tenns G lia\e been made applicable to Jains. [125 BJ

Panna Lal & Others v. Siiabai, I.L.R. 1954 Nagpur 30, Sheokuarbai v.

Jeoraj, p92!) P.C. 77, referred to.

Before the amendment and codification of major branches of Hindu law by the four statutes, i.e. the Hindu Marriage Act, 1955, the Hindu

Succession Act, !956, the Hindu Minority and Guardianship -ct, i956, lithe Hindu Adoption and Maintenance Act, 1956, the undisputed position was that the Jains were governed by Hindu law modified by custom •Qd a Jain joint family was a Hindu joint family ·.with all the incidents

A attached to such a family under the Hindu Law.

The legislative practice also was to generally treat Jains as included in the term 'Hindu' in various statutory enactments. Wherever Jains were mentioned in addition it was ex abundant/ cautela. The. new statutes did not change the situation. The

fallacy underlying the reasonini of the High Court is that the artificial field of application of the law m those statutes shows that Jainism is not treated even as a form or a development of Hinduism.

Even if the reli- B gions are different, what is common is that all those who are to be governed by the provisions of these enactments are included In the term 'Hindu'.

They ai:e to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as HindUs. The statutes thus accord legislative recognition to the fact that even though Jains may not be Hindus by religion they are to be governed by the same laws as the Hindus. The expression 'Jain undivided family' is not known to law. The Jains are governed by all the incidents relating to the Hindu joint family.

C Hindu undivided family is a legal expression which has been employed in taxation Jaws.

It has a definite connotation and embodies the meaning ascribed to the expression 'Hindu Joint Family'. [127 E128A)

Kamawali v. Digbijai, A.l.R. 1922 P.C. 14, Bachebi v. Makhan Lal & Another, I.LR. 3 All. SS Bhagwan Koer v. J. C. Bose, Ambalal v. Keshav .Bandhochand Gujar, I.LR, 1941 Bom. 2SO and Ka/ani Vithal Das v.

Commissioner of Income Tax, L.R. 64 I.A. 28, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1090 of 1971 arid 1686 ol 1968.

Appeals by special leave/certificate from the judgment and order dated August 25, 1967 of the Calcutta l; ligh Court in Wealth Tax Reference No. 435 of 1963.

. S. Mittra, B. D. Sharma and R. N. Sachthe, v, for the appellant (m both the appeals).

S. T. Desai, D. N. Mishra, J.B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondents (in both the appeals).

The Judgment of the Court was delivered by

Grover, J. This is an appeal by special leave from the judgment of the Calcutta High Court arising out of a reference under the Wealth Tax Act 1957 in which the question involved is one of imP!'rtance, namely, whether a Jain undivided family is included in the expression "Hindu undivided family" within s. 3 of the Act.

The facts are few and may be stated. For the assessment year 1957-58, the valuation date being 31-12-56 the Wealth Tax Officer assessed the family assets of the assessee iii the status of a Hindu undivided family.

On appeal to the Appellate Assistant Commissioner the contentions raised, inter alia, were that (i) upon the description of the assessee in the notice of demand the assessment should be deemed to have been made in the status of an association of persons which was not a unit on which t!!X

could be levied under the Act; (ii) even if the assessee was to be A treated a1 a Hindu undivided family, the imposition of wealth tax on such family was ultra vires the Constitution.

These contentions failed before the Appellate Assistant Commissioner.

The Appellate Tribunal, to whom the matter wa5 taken in appeal, held that the assessee followed the Jain religion ll and since the unit chargeable to wealth tax under s. 3 of the Act was either individual or Hindu undivided family or company none of the units covered the case of the assessee which was a Jain family.

According to the Tribunal Jains were not Hindus and, therefore, the expression "Hindu undivided family" in s. 3 dhid not cover the cashe. of a Jain family. The Tribu~I et aside C: t e assessment on t 1s ground alone.

The Comm1ss1oner of Wealth tax filed an application under s. 27 ( 1) of the Act praying that the question of law which arose out of the order of the Tri bunal be referred to the High Court.

At the time of the hearing of that application it was suggested on behalf of the assessee that further questions arising out of the order of the Tribunal should n. also be referred.

Finding that questions other than the question suggested by the Commissioner of Wealth tax arose out of the order, the Tribunal referred the following question of law for the opinion of the High Court :-

" l. Whether, the assessee, a Jain undivided family, was not a Hindu undivided family within the meaning of E s. 3 of the Wealth tax Act, 1957, and as such the Tri bunal was right in setting aside the assessment made on the assessee ?

2. Whether levy of Wealth tax on Hindu undivided family or joint family governed under Mitakshra school of Hindu law was beyond the legislative compe- F tence of Parliament and ultra virts the Constitution of India?

3. Whether the Wealth Tax Act in so far as it pur ports to levy Wealth tax on Hindu undivided families is void and inoperative as it offends Article 14 of the G Constitution of India ?"

The High Court held that the Jains not being Hindus in the generally accepted sense of the term a Jain undivided family could not be a Hindu undivided family although the incidence of a Jain family and a Hindu family "may be the same or largely the same''.

According to the High Court, in order to form a H Hindu undivided family its members must be Hindus,_ the assessee family being Jains, were not Hindus and so its members.

A could not form a Hindu undivided family although it was "capable c>f forining a unit c>f very much of the same type and governed by the law applying to a Hindu undivided family". The answer to the first question, therefore, was returned in the -affirmative and in favour of the assessee.

The other two questions were not pressed before the High Court, presumably in view of B the decision in Banarsi Dass v. Wealth Tax Officer, Special Circle, Meerut( 1).

According to s. 2(c) of the Act assessee means a person by whom Wealth tax or any other sum of money is payable under the Act and includes :-

( i) every person in respect of whom any proceedings under this Act has been taken for the determination of wealth tax payable by him or b} any other person or the amount of refund due to him or such other person;

(ii) every person who is deemed to be an assessee under this Act;

(iii) * * * * f, f * (•"

Section 3 is in the following terms :-

"Charge of wealth tax-Subject to the other provisions contained in this Act, there shall be charged for every (assessment year) commencing on and from the first day of April 1957, a tax (hereinafter referred to as wealth tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the schedule".

The only other provision in the Act in which the expression "Hindu" undivided family" occurs is s. 20. It deals with assessment after partition of a Hindu undivided family.

Under s. 3 G of the Act it is the Hindu undivided family which is one of the assessable entitieS. It should be distinguished from a Hindu co-parcenary which is a much narrower body than the Joint family.

A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters.

A Hindu coparcenary includes only those H who acquire by birth an interest in the joint coparcenary property, being the sons, grandsons and great grandsons of the holder of the joint property. Thus \here can be a joint Hindu family

(I) 56 1.T.R. 224. 9-L%lS"PCl '72

122 SUPREME COURT llBPORTS

(1972) 3 S, C.R.

consisting of a single male member and widows of deceased A coparceners.

It must be remembered that the words "Hindu undivided family" are used ln th!!! Income tax statutes with refe rence not to one school of Hindu law only but to all schools. The sole previous decision in which an identical question came up for consideration under the Income tax law is that of the Nagpur Judicial Commissioner's Court in Nathu Sao v. Commissioner of B Income tax C.P. & Berar( 1). In that case the assessee was a member of the Lad Yaish community and was a Jain.

He claim ed to be governed by the Hindu law and contended that his widowed mother and widowed aunt who lived with him ronsti tuted a Hindu joint family.

It was held that ordinarily Hindu Law applied to Jains in the absence of proof of custom or usage to the contrary and that the expression "Hindu undivided family" C did not mean a Hindu coparcenary but was a wider expression which would take ln the widowed mother aald the widowed aunt of the assessee in that case.

No contrary view seems to have been expressed in any other case subsequently and it appears that it is for the first time that the Calcutta High Court in the judgment under appeal has upheld the contention that a Jain undivid D ed family cannot fall within the expression "Hindu undivided family".

It will not be out of place to mention that indisputably eVCll" since income tax laws have been inforce no distinction has ever been made between a Jain undivided family and a Hindu undivided family and a Jain family has always been assessed as a Hindu undivided family.

Even in the forms prescribed for E making returns of Income tax no such differentiation or distinction has ever been made.

The main reasoning which prevailed with the High Court is that although Hindu law applies to Jains except in so far as such law is varied by custom, Jains do not become Hindus in the same F way as Khojas and Cutchi Memons of Bombay and Sunni Borahs of Gujarat etc. cannot be regarded as Hindus although Hindu law applies to them in matters of inheritance and succession.

Moreover, Hinduism does not include Hindu converts to Christianity and Islam and also dissenters from Hinduism who formed. themselves into distinct communities or sects with peculiar G religious usages so divergent from the principles of the Shastras that they could not be regarded as Hindus.

Reliance was placed on the decision of the Mysore High Court. in P. F. Pinto v. Commissioner of Wealth Tax, Mysore(•). In that case the ancestors of the assessee were originally Hindus.

They later on became converts to Christianity.

It was found that although for the purposes of succession to property the Hindu law was still applicable H to the family of the assessee, he could be assessed only as an

(I) 2~1.T.R. 463.

(I) 65 I.T.R. !23.

COMM~. WEALTH-TAX v. CHAMPA (Grover, J.) 123

individual for wealth tax purposes and could not be assessed in the status ?f Hindu undi.v.ided family.

The Mysore High Court was mctmed, to the view that the expression 'Hindu undivided family' in s. 3 of the Act was limited to Mitakshra families or. families of persons professing Hindu religion governed by M1takshra law and thus it could not include a Christian undivided fam!IY alth?ugh governed by Hindu law.

The Calcutta High Court ID the judgment under appeal, however, did not consider that the Myore High Court was right in holding that s. 3 of the Act was limited only to Mitakshra families.

It may be pointed out that so far as Income ta11: law IS cvno•rned the expression 'Hindu undivided family' has been held to have rerer•nce to all •chool• nf Hindu law and not one school only. [Se.. K .. 1,_,1.

Vithal Das v. Commissioner of Income tax(')].

The real question for detennination is whether the word 'Hindu' preceding the words 'undivided family' signifies that the undivided family should be of those (i) who profess Hindu D religion; or (ii) to whom Hindu Jaw applies; or (iii) who though not professing Hindu religion have come to be regarded as Hindu undivided family by judicial decisions and legislative prac'tice.

It may be mentioned that for a Jong time the courts and particularly the Privy Council seem to have taken the view that Jains are of Hindu origin; they are Hindu dissenters and although gene- E rally adhering to the ordinary Hindu Law they do not recognise any divine authority of the Vedas nor do they practice a number of ceremonies observed by the Hindus.

But the modern trend of authority is against the view that Jains are Hindu dissenters.

As a result of comparative research in Hinduism, Jainism and 'Buddhism, it is being emphatically claimed that the theory that Jains are Hindu dissenters is based on a misreading of the ancient F authorities relating to these religions (See C. R. Jain-'Jain Law'-pp. 3-23 and 219-258).

One of the early decisions in which Ji1ins were stated to be of Hindu origin being Hindu dissenters is that of Westropp C.J. in Bhagwandas Tejmal v.

Ra,;.. mal('). The learned Chief Justice based his view on high authority including the researches of Mr. Mountstuart Elphin- G stone, !.:ate Col. Mackenzie (9th Vol. of the Asiatic Reseaches. including the essay of Mr. Cole Brooke on the Sect of Jamas), the .work of Abbe Dubois on the Manners etc. of the People of India and tl1e elaborate account of the Jain sect in the First Volume of Prof. H. H. Wilson's work.

He also referred to certain decisions of the Sudder Divani Adault in Calcutta and the H High Court of Calcutta; in particular to the opinion of Peacock C.J. in Lala Mohabeer Pershad v. Musammut Kundar Koover(').

(I) L.R. 64 I.A. 28.

(1) (!873) IO llom. HCR 241.

(3) 8 Cal. W. Rep. 116 Civ. Ru\.

The following passage from the judgment of. W estropp CJ. ls noteworthy :-

"The term Hindu or Gentu, when used in Regulations Act, Statutes, and Charters in which Hindu.s or Gentus have been declared .entitled to the benefit of their own Jaw or succession and of contract, has been largely and liberally construed. See the remarks at pages 184, 185, 186, S Born. High C. RepOrts (Lopes

v. Lopes), where Sir Edward Hyde East's evidence in 18 30 before the House nf Lords' Committee is mentioned, in which ho stated that Stlchs were treated as a sect of Hindus or Gentus of which they woro " dissenting branch.

The authorities, already 9uoted, show thiit J ainas are regarded as a sect of Hindus."

Out of the decisions of the Privy Council, we may mention Sheokuarbai v. Jeoraj(•1) in which their lordships relied on the statement in Mayne's Hindu law and Usage that Jains are of Hindu origin; they are Hindu dissenters and although "generally D adhering to ordinary Hindu law, that is, the law of the three superior castes, they recognise no divine authority in the Vedas and do not practice the Shradha-or ceremonies for the dead".

The above view has been challenged by 1 ain historians and writers and .it has been maintained that the 1ains are quite dis- E tinct f~ Hindus and have a separate code of law which unfortunately was not brought to the notice of then:ourts. Kumaraswami sastri, Officiating Chief 'Justice; delivering the. judgment of. the Bench in Bobbaladi Gateppa v. Bobbaladi Etmrtrila d: Others(2) elaborately diseussed the contrary view . and observed that if the matter wtiro res integra be wouldi •be inclined tt> hold that modern research had shoWn _that Jains' were' not Hindu' ells- Ii'_ senfers but that Jainism had an origin and tm.r long iilltetior to Smritis and commentaries which were recOiiil'sed authorities of Hindu law and •ilsage. Mr. C.-R. Jain hi his work "Jain Law"writtcm, ln 1926 has discusSed the finding& of varioui.Opentalists suent thoee mentioned in the. judf!1Cnt of Westiop}l C.J •. and bas: put fonv.al:ll G the thesis that Hindws!ll apd Jainism were parilllel creeds .th'!!Jjb they shared the same forni of social order lUi4 mode :,'of liVin,.

Jain Law was quite independent of Hindu, law.: . According -~ him the Courts had tried on each dccasion to.asi:ertaBi the,, Taiil Law but unfortunately for various -reasons .Jains concealed their

Shatras and objected : to their production in .Courts. He ... B emphasised that Jain 4tw which is found in the. available. boob should still be applied and the error which has CreJ>t in the matter ·

(I) [1921] P.C. 77. .

(2) A.I.R. 1927 Mad. 228, _

A of Jains being governed by Hindu Law should be rectifieil. Since

1926 there have been several enactments apart from the codification of certain major Branches of Hindu law which in express terms have been made applicable to Jains. The course suggested by C. R. Jain cannot possibly be followed particularly in the presence of statutory enactments.

B In Panna Lal & Others v. Sitabai(1), Hidayatullah J. (as he then was) delivering the judgment of the Divis.ion Bench observed that it was too late in the day to contend that "Jains' are not included in the term "Hindus" for the purposes of law. He referred to Mayne's Hindu law as also the leading cases on the point apart from West and Buhler's Hindu Law (4th E<ln.), Gopal C Chandra Sarkar's Hindu Law (7th Edn.) and Harl Singh Gour's Hindu Code (4th Edn.). All these are acknowledged authorities and the conclusion which was derived not only from the statements contained in their works on Hindu law but also from decided cases was that the Jains were to be rearded as Hindus for the purposes of law though they seem to d1Ssent from eome of the D principles of orthodox Hinduism.

In the Nagpur cilSe the question which was being considered was whether The Hindu Women's Right to Property Act 1937 was meant to apply to Jains as weJI or to Hindus proper. It was in that CO!lpection

that the extent to which Jains were governed by Hiadu law or were to be treated as Hindus for purposes of that Jeilv came up E for discussion. The following passage may be 111*oduced with advantage :-

"The .legislature must be taken to be aware of the pronouncements of the Privy Council as well as the leading decisions of the Indian High Courts where a liberal interpretation was given to the tetlll 'Hilldu'.

We do not think that the Legislature used lhe term without advertence to these dicta and, in our judgment, the Legislature must be deemed to have used the term "Hindu' in that larger sense which has beeo explailed by Mayne at page 5 of his treatise in the paS&age quoted by us elsewhere and which has been the fouodation of G decisions on the subject in the courts of Idia";

It may be mentioned that the statement from Mayne's Hindu

Law referred to above is the same which was relied upon by the Privy Couneil in Sheokuarbai v. Jeoraj(").

We may next notice certain decisions in which . the. word 'Hindu' as used in various statiites came to bci intetpreted by the H Courts.· In Kamawali v. Dlgbijai Singh( 8 ) s. 331 of the Indian

(l) I.LR. 1954 N~BPur 30.

(2) A.I.R. 1921 P.C.14.

(3) [1921] J'.C. 77.

126 SUPREME COU!l.T REPORTS

(1972] 3 S.C.R.

Succession Act 1865 had to be interpreted.

According to that A section the provisions of that Act were not to apply to intestate or testamentary succession to the property of any Hindu.

It was held that the person who had .ceased to be a Hindu in religion and had become a Christian could not elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu convert to Christianity B was solely governed by that Act.

In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not a Hindu within the meaning of s. 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal & Another(') that the term 'Hindu' ins. 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of suces- C sion Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritence was to be applied to Jains in the absence of proof of custom or usage varying that law.

The Privy Council in Bhagwan Koer v. J, C. Bose & Others(') expressed the view that a Sikh was a 'Hindu' within the meaning of that tern1 as used in s. 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always D acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed :

"It appears to their Lordships to be clear that in s. 331 the term "Hindu' is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not E so, then Sikhs were, and are, in matters of inheritence. governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and it could not be seriously suggested that such was the intention of the legislature".

In Ambalal v. Keshav Bandlwchan& Gujar( 3 ) the question was whether Jains were governed by Hindu law of Inheritence (Amendment) Act 1929 which applied to all persons governed

by Mitakshara as modified by the Mayukha. It was argued in that case that the Indiiin Succession (Amendment) Act of 1929 speaks of Jains as-well as Hindus and ss. 4 and 57 of the Indian G Succession Act 1925 also did the same.

The Court pointed out thats. 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term 'Hindu' included Jains.

The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the H

(I) I.L.R. 3 All. 55.

(2) l.L.R. 31 Cal. 11.

(3) !.L.R. i 941 Born. 250.

COMMR. WEALTliTAX V, CHAMPA (Grover, I.) 127

Succession Act of 1865 and the Indian S11ecession Act 1925 was a cc111solid!lting At which repealed the previous Act of 1865 .. as well as H11;1du Wills Act of 1870. It was, therefore, probably th?ugh.t necessary emajore cautela to separately mentiOiD. the I ams m the consolidating measure.

However in all the other e.nactmen~ affecting the Hindu Law there was' no separate men tion of Jams along with the Hindus.

The Jains were therefore governed by the Hindu Law of Inheritence (Amenent) Act

1929. The mention of Jains separately in Article 25 of die Constitution was noticed in Panlltlla/ v. Sita Bai(1) and it was obse~ that the .framers of te Constitution felt, having regard to the differences m the two faiths that an express mention might c be made of all faiths ex-abundanti cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to ha.ve undone the long series of decisions on the subject.

Before the amend ment and codification of major branches of Hindu law by the four statutes, i.e. The Hindu Marriage Act 1955, the Hindu Succes

0 sion Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoption and Maintenance Act, 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was a Hindu joint family with all the incidents attached to such a family under the_Hindu law.

The legislative practice also was to generally treat Jains as included in the tern1 'Hindu' in various statutory enactments.

E Wherever Jains were mentioned in addition it was only by way of abundant caution.

The new statutes did not change the situation and it is not possible how the High Court in !'he judgment under appeal pressed them into service in support of its view.

The fallacy underlying the reasoiling of the High Court is that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a forni or a development of Hinduism.

That is an erroneous approach.

We are not con F

cerned with the question whether J ains are a sect of Hindus <!r Hindu dissenters.

Even if the religions are different, what !s common is that all those who are to be governed by the prov1 s10ns of these enactments are included in the terni 'Hindu'. They are to be governed by the same rules relating to marriage, succes G sion, minority, guardianship, adoptin :ind m~nance as Hindus. The statutes thus accord legJSlative recogmtton to the .fact that even though J ains may not be Hindus by religion they are to be governed by the e lw~ as the . ?indus. . I~ tbfas view of the matter the expression Hindu undivided family will certainly include the 'Jain undivided f.amily'.

The latter class of family is not known to law: Th~ .Jruns ar; e gove!11ed by all. the incidents relating to the Hindu 1omt family.

Hmdu und1v1ded H

(!) I.L.R.1954 Nagpur 30

fam11y is a legal express.ion which has been employed in taxation A laws. It has a definite connotation and embodies the meaning ascribed to the expression 'Hindu joint family'.

For the above reasons the appeal is allowed and the question referred is answered in favour of the Revenue and against the a~. There will be no order as to costs in this Court. The appeal by Certificate (CA 1686/68) being defective for want of 8 reasons is het"by dismissed.

K.B.N.

Appeal allowed.