COMMR. OF WEALTH TAX, MADRAS & ORS.

LATE R. SRIDHARAN BY L.Rs.

April 29. 1976

, B . [A. N. RAY. C.J .• 1\1. H. BEG, R. s. SARKARlA, P. N. SIIJSGAL Atf[)

JASWANT SINGH, JJ.l

Special 11.14rr1ag6.A.ct, 1954, Sec. 21-.Marriage betweell llindu assesue !I."'cl Cl1ristian female-Whether issue is a Hindu governed by Hindu Law .

. The late' R. Sridharan married Rosa Maria. Steinbichler, a christi:tn of Austrian descent. under the Special M:.rriage Act. 1954 and a son Nicolu Sundaram was born out of the . wedlock. In the assessment proceedin.gs in

respect of income tax, wealth ta:t and expenditure tax. Sridharan claimed t<> be assessed in the status of a member of Hindu Undivided F; unily consisting

of himself and his son, contending that n.c prop<:rty held by him wa.~ ancestral and Nicolas Sundaram was a Hindu. The officers dealing with these taxes rejected the contention and assessed him as :m "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 ordin:u-y 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·• rJ the Appellate Tribunal in appeals by Sridiur:m against the assessmen<:;.

On further app!ications made by Sridharan, !he Income Tax Appellate Tnounal referred the matter to the Hi~=:h Court which decided in favour of Srldharan but Jrr<Ultcd a certificate of fitness. Meanwhile,

Sridharan died, and his widow filed wealth tax returns, claiming the s::ttw of a member of Hindu Undivided Family. The Revenue authorities followed

th-eir earlier decisions, and ultimately the matter was referred to the High Cowt which decided in favour of respondent Mrs. Sridharan, but granted leave to appeal to this Court. ·

 Dismissing the appeals, the Court,

HELD : {l) Under the codifying Acts, the orthodox concept of the crm "Hindu" has undergone a radie3l change , and it has been given an extended meanin.e;. The Acts not only apply to Hindus but also to a lare number liilf ·

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-EI

(2) Section 21 of the special Marriage Act has no bearing on the present case. The section does not in any ow'ay impair or alter the joint family sructure between an assessee and his son. Nor docs it affect the discretion vested in a Hindu asessee to treat his properties as joint family properti<!s by taking into his fo1d his Hindu sons so as to constitute: joint family prbpertics .. [H9A-C]

Slrasiri Yagnapurushdasii & ors. v. Muldas Bhundardas Vaislzya and A"r.,.

AIR 1966 S.C. J119; Blzagwan Koa v. J. C. Bose & Ors. (1904) ILR 31 C::.l.

11; Lint:appa v. Emdasan (1904) 27 MaJ. 13;1\.fotlrey Anja Ratna Raja Kumar

v. Koney Narayana Rao & Ors. AIR 1953 SC 433 and Ananthaya v. Vi_, rr"u 17 Mad. 160, referrrJ to.

\Yebstc"rs' 3rd New Jnternat:onal Dictionary cf the Enyli-; h Lnnc::, gc; Encyclopaedia Britannica (15th Edn.): Gitarahasya by n. G. Ti!~, k l'ri::ctpks of Hindu Law (14th Edn.) pp. 671 and chap. I para 6 by. :\f:rlla, and lii::h Law & Usage (ltth"EJa.) pp. 2_90 by 1\Iayne, rcfrred to.·

CML APPELLATE JURisnrcno:-l': Civil Appeal Nos. 1399 to 14.03 of 1970. ·

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C.W.T. v. R. SRIDHARAN (Jaswant Singh, 1.) 479

Appeal from the Judgment and Order dated 20th December f96S A of 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 April1972 of the 'Madras .f!igh Coun in Tax Case No. 328 of 1966 (Reference No.

~88/66) .

S. T. Desai, 1. Ram.amurthi; for the appellant (In CA 1399-1403 ;. .of 1910). j

$. Swcuninmhan, Mrs. S. Gopalakrislman for the Respondent in all .the appeals. c The Judgment of the Court was delivered by

IASWANT SINGH, J.

These apls 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 fat.

The circumstances giving rise to thes'< appeals are : The late R.

Sridharan along with his father a!J.d 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 lhat the value of the shares 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 tl}e 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 Com- .missioner but remained tmsuccessful.

The orders-passed by the Tncome

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Ta~/Wealt~ ax/Expenditure Tax Oftiers and the Appellate Assis- tant CommiSSIOner were also affirmed m appeals against the . assessments respectively made under the Income-tax Acf, Wealth Tax Act and the Expenditure Tax Act by the Appellate Tribunal. In the course of its consolidated order rejecting the appeals, the oappellate 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 wa..c: rio Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.

Thereafter on the applications made by Sridharan under section 27(1) of the Wealth Tax ct, 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 opi!nion of the High CouJ1 :-

"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(!) held that Sridbaran'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 ot 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 assessmentyear 1963-64, his widow Mrs. Rosa Maria Steinbchler filed a wealthtax 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 hi<; earlier decision in the assessment proceedings in respect of . the previous years rejected the claim of Rosa Maria Steinbchler holding that sbe was not a Hindu and in any case since her marriag_e 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 Jaw.

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 to9 proved abortive,_ The Tribunal, hower. referred the following question of Jaw for the opimon of the High Court:- H

(l) [1966] 60 I.T.R. 293.

C.W.T. v. R. SRIDHARAN (JaswanrSingl~, l.) -48!

"Whether the assessee~ Sridhanin and his son constituted ' in law a Hindu undivided fariilly' fo!" the. P!lrpose of assess 4 ment under the Weathtax ~.; t~. 1957 ?", - ·· .. ' '

. The High Cort awered the question in the affirmative i.e. against the Revenue observing that the decision in the previous reference directly governed the facts ofthe 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 Wealth-tax Act, 1957 and Article 133(1) (c) of the ' Constitution of India. 'This is how the appeals are befor~ 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 d_isputed that a joint Hindu family consists of all perc

sons lineally descended from a common ancestor and includes their wives and unmarried daughters, It cannot also be dispuled that property obtained .by Sridharan on partition between ' his father - and D 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.

 The sole question' which, however, falls for our consideration in these appeals is whether Nicolas Sundaran is a lfmdu governed by Hindu law. It is a matter of common knowledge that Hinduism E embraces within itself so many diverse f()rms 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 & Anr.(1 ).

' ' In Unabridged Edition of Webster's Third New _.International Dic 4 tionary 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 lagely 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 G 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 wayof fife and form of thought of a Hindu". ·

In Encylopaedia Britannica (lSth Edition): .th~ terni '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.l.R.1966S.C.1119.

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gradually evolved from Vedism, the religion of the ancient Indo-European peoples who settled in India in the last centuries of the 2nd

milleD.I).ium BC. Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a vecy COJDplex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literacy, and artistic aspects.

As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of lite

• • . . In principle, Hinduism incorporates all fo~ 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 oand 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 dogm<dc terms.

Hinduism is, then both a civilization and a conglomerate o{ religions, with neither a beginning, a founder, nor a central authority, hierarchy, or organization. Every attempt at a specific definition of Hinduism bas 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 r following broad description of the Hindu relgion :-

"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. 1. C. Bose & Ors.(J) it was held that Hindu religion is marvellously catholic and lastic_. . Its theology is m3!1ced by eclecticism and tolerance and almost unhmtted freedom of prtvate worship.

Its social code is much more stringent, but mongst 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, if is not strange that it holds within its fold men of divergent vie~ and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hindu religion. ..

(1) [1904) I.L.R. 31 Cal. 11.

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C.W.T. V. R. SRIDHARAN (Jaswant Singh, 1.) 483

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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 denoe any particular religion or community. During the last hundrd 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 Drahminism. It has been applied to various religious sects and bodies which at various periods and in circumstances develop_ed 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 !findus by.

D 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 tbe 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 cus:.. tom and to Lingayatwhoare considered Sudras;

=~· + - - - - "'"· .... , .. : (v) to a Hindu by birth who, having renounced Hinduism,

 bas reverted to it after performing the religious rites of expiation and repentence. Or even without a formal ritual of reconversion when lie 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;· , ...

, . . . .- I . . {vii) to Brahmos; to Arya Samajists; arid to Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by cuLtom; and

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(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 dcisions of various courts relatin(T to old uncodified Hindu law. "'

B In Lingappa v. Esudasen(l) which related to maintenance, it was held that Hmdu law does not apply to the illegitimate children of a Hit; tdu f~er ?Y Christian mother who are rought up as Christians. Thts dectston mdtrectly 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.

C In Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao & Ors. (1) whole approving the observations made in Ananthaya v.

Vishnu(S) this Court inter alia held that under the Mitakshara law, an illegitimate son is e)ltitled to manitenance 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 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 Adoption and Maintenance Act, 1956 and Hindu lVfarriage 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 Sridha~ ran.

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 wlJich his father belonged.

At page 290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a child i!l Indi~, under ordinary circumstances, must be presumed to have hrs father s

(1) [19041 27 Mad. 13. (2) A.I.R. 1953 S.C. 433.

(3) 17 Mad. 160.

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C.W.T. v. R. SRIDHARAN (Jaswant Singh, !.) 485

religion, and his correspondin.g 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 B 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 marrioage 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 c 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 th~ a(o;:esaid question referred to the High Court was rightly answered by it on both the occasions. In the result, we find no merit in these appals which are dismissed with costs.

M.R .

Appeals dismissed.