Judgment Case ID: 3479

Judgment:
Civil Appeal No. 1101 of 1969. From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964. section T. Desai	 B. B. Ahuja	 S P. Nayar and R. N. Sachthey	 for the Appellant. section K. Sen	 A. K. Nag and D. P. Mukherjee for the Respondents. The Judgment of the Court was delivered by SHINGHAL	 J. This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance. The facts giving rise to the appeal are quite simple and may be shortly stated. One Bireswar Chatterjee	 who was admittedly governed by the Dayabhaga School of Hindu law	 was assessed to income tax as an individual. He died intestate on January 7	 1957	 leaving his widow	 sons and daughters. The Wealth tax officer rejected their plea that on the death of Bireswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment	 and assessed them as a Hindu undivided family for the assessment year 1958 59. On appeal	 the Appellate Assistant Commissioner held that since the assesses was governed by the Dayabhaga School of Hindu law	 the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co sharers separately. " The department took an appeal to the Income tax Appellate Tribunal	 'B ' Bench	 Calcutta. There was difference of opinion between the members of the Tribunal	 and in accordance with the opinion of the majority of the members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it	 such property	 until partitioned	 was assessable to wealth tax in the hands of the Hindu undivided family. " The Tribunal however referred the following question of law to the Calcutta High Court for decision "Whether on the facts and in circumstances of the case	 the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" 1098 The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu undivided family governed by the Dayabhaga School of Hindu law	 and reframed it as follows	 "Whether on the facts and in the circumstances of the case	 the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wealth tax jointly in the status of a Hindu undivided family?" It took the view that the matter was covered by its earlier decisions including Commissioner of Wealth tax. West Bengal vs Gouri Shankar Bhar where it had been held that on the death intestate of a Dayabhaga male	 his heirs do not inherit his estate as members of a Hindu undivided family	 and remain as co owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as members of a joint family. The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4	 1959	 and answered the reframed question in the negative. As has been stated	 the High Court has certified this to be fit case for appeal to this Court. Mr. section T. Desai appearing for the Commissioner of Wealth tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent	 as coparceners	 as their joint family comes into existence by operation of law. He has accordingly argued that the father 's property is liable to be taxed under section 3 of the Wealth tax Act	 hereinafter referred to as the Act	 as a unit until it is partitioned amongst its members by metes and bounds. Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary. Section 3 of the Act is the charging section and the correctness or otherwise of the view taken by the High Court depends on its meaning and content. The section provides for the charge of wealth tax in these terms. "3. 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 liability to wealth tax therefore arises in respect of the "net wealth" of the assessee	 which expression has been defined as follows in section 2(m)	 "(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions 1099 of this Act of all the assets	 wherever located	 belonging to the assessee on the valuation date	 including assets required to be included in his net wealth as on that date under this Act	 is in excess of the aggregate value of all the debts owned by the assessee on the valuation date other than	 . " The expression "belong" has been defined as follows in the Oxford English Dictionary. "To be the property or rightful possession of. " So it is the property of a person	 or that which is in his possession as of right	 which is liable to wealth tax. In other words	 the liability to wealth tax arises out of ownership of the asset	 and not otherwise. Mere possession	 or joint possession	 unaccompanied by the right to	 or ownership of property would therefore not bring the property within the definition of net wealth" for it would not then be an asset "belonging" to the assessee. The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs	 after his death? It is not in controversy	 and is in fact admitted	 that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income tax as an individual. His family consisted of his widow	 sons and daughters and was governed by the Dayabhaga School of Hindu law. Bireswar Chatterjee 's property was therefore the heritage	 or the wealth	 which vested in his heirs on his death. According to Jimuta Vahana	 his wife or sons or daughters had no ownership in his property during his life time for "sons have not ownership while the father is alive and free from defect." (Hindu Law by Colebrooke	 P.9) ownership of wealth is however vested in the heirs "by the death of their father" (page 54	 supra) when they become coheirs and can claim partition. It is on this basis that "Dayabhaga" (partition of heritage) has been expanded by Jimuta Vahana. According to him	 "since anyone parcener is proprietor of his own wealth	 partition at the choice even of a single person is thence deducible." (page 16	 supra). The heritage does not therefore become the joint property of the heirs	 or the joint family	 on the demise of the last owner	 but becomes the fractional property of the heirs in well defined shares. This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his "Law relating to the Joint Hindu Family" (Tagore Law Lectures) with reference to the doctrine of negation of the son 's right by birth (page 168)	 "As a corollary of the doctrine set forth above	 negativing the son 's right by birth	 is another peculiar doctrine of the Bengal School	 that of what is called the 'fractional ownership ' of the heirs	 contrasted with the doctrine of 'aggregate ownership expounded by all other schools. " That is why 'partition ' in Dayabhaga is defined as an act of "particularising ownership"	 and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara. The 1100 learned author has clarified the position in unmistakable terms as follows (pages 172 73)	 "From what has been said above	 it is evident that there is no unity of ownership in Bengal joint family	 although there may be something like a unity of possession." (Emphasis added) This is why Mitashara is designated as the School of "aggregate ownership"	 while Dayabhaga is known as the School of "fractional ownership. " As has been stated in Gopalchandra Sarkar Sastri 's "Hindu law" (eighth edition page 465)	 while the joint family system prevails in Bengal	 "there cannot be a real joint family consisting of father and sons during the father 's life time	 inasmuch as joint property which is the essence of the conception of joint family	 would be wanting to make them joint. " This is why	 according to the Bengal School	 the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father. The position of joint family under the Dayabhaga law has been stated as follows in Mayne 's Treatise on "Hindu Law and Usage" (eleventh edition	 page 364)	 "It follows therefore that under the Dayabhaga law	 a father and his sons do not form a joint family in the technical sense having coparcenary property. But as soon as it has made a descent	 the brothers or other co heirs hold their shares in quasi severalty. Each coparcener has full powers of disposal over his share which is defined and not fluctuating with births and deaths as in the case of a Mitakshara family and his interest	 while still undivided	 will on his death pass on to his own heirs male or female or even to his legatees. " That was stated to be the law in Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick The position has been dealt with in Mulla 's "Principles of Hindu Law" (fourteenth edition	 at page 348)	 as follows	 "The essence of a coparcenary under the Mitakshara law is unity of ownership. On the other hand	 the essence of a coparcenary under the Dayabhaga law is unity of possession. It is not unity of ownership at all. The ownership of the coparcenary property is not in the whole body of coparceners. Every coparcener takes a defined share in the property	 and he is the owner of that share. That share is defined immediately the inheritance falls in. It does not fluctuate with births and deaths in the family. Even before partition any coparcener can say that he is entitled to a particular share	 one third or one fourth. Thus if A dies leaving three sons	 B	 C	 and D	 each one will be the owner of his on third share. The sons are coparceners in this sense that 1101 possession of the property inherited from A is joint. It is the unity of possession that makes them coparceners. So long as there is unity of possession	 no coparcener can say that a particular third of the property belongs to him; that he can say only after a partition. Partition then	 according to the Dayabhaga law	 consists in splitting up joint possession and assigning specific portions of the property to the several coparceners. According to the Mitashara law	 it consists in splitting up joint ownership and in defining the share of each coparcener. " In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar	 a Hindu governed by the Dayabhaga School	 died intestate. His mother	 widow	 three sons and one daughter survived him. Since the death took place before the came into operation	 he was succeeded by his widow and three sons	 each inheriting one fourth share in the estate. Gouri Shankar Bhar	 one of the sons	 took out letters of administration and filed	 a wealth tax return in his capacity as ad ministrator descrth the status of the assessee as a Hindu undivided family. The Wealth Officer also treated the status as such	 and made the assessment. Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School	the shares of the coparceners in the property of the deceased were definite and ascertained and the assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property. The Appellate Assistant Commissioner overruled the contention and took the view that even though the shares of the coparcencrs were definite and ascertained	 the income from the prperty of the family did not belong to the several members in specified shares but continued to belong to the Hindu undivided family as a whole. On further appeal	 the Tribunal held that as the coparcener under the Dayabhaga law had a definite share in the property left by the deceased and was legally the owner thereof	 he had a defined share and that since the wealth tax was levied on the basis of ownership	 it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal. The matter was referred to the High Court at the instance of the Commissioner of Wealth tax. The High Court of Calcutta in Commissioner of Wealth tax case (supra) made a reference	 inter alia	 to the decision in Biswa Ranjan Sarvadhikari vs Income tax officer	 F. Ward District	 (2) Calcutta and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are.definite and ascertainable	 then	 although they are in Joint possession	 the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family. It was held that the position was not different under the Wealth tax Act. The matter was brought to this Court on appeal and it was conceded by Solicitor General appearing for the Commissioner of Wealth tax that as the property was the individual property of the 1102 deceased	 it devolved on his heirs in severalty. It was held that as each of them took a definite and separate share in the property	 each of them was liable	 in law	 to pay wealth tax as an individual. While upholding the decision of the High Court it was however observed by this Court that it was not necessary to decide	 in that case	 whether a Dayabhaga family could be considered as a Hindu undivided family within the meaning of section 3 of the Act. That decision is Commissioner of Wealth tax	 West Penal vs Gauri Shankar Bhar. In the case before us	 it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the . It will be recalled that a suit for partition was filed on June 21	 1957 and a preliminary decree was passed on July 4	 1959. For reasons already stated	 the coparcenary had unity of possession but not unity of ownership on the property. Eac coparcener therefore took a defined share in the property and was the owner of his share. Each such defined shar thus "belonged" the coparcener. It was his "net wealth" within the meaning of section 2(m) of the Act and was liable to wealth tax as such under section 3. The High Court was therefore right in answering the reframed question in the negative	 and as we find no force in the argument of Mr. Desai	 the appeal fails and is dismissed with costs.

Summary:
Rejecting the respondents ' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them from their father and were liable to separate assessment of wealth tax	 the Wealth Tax Officer assessed them as a Hindu Undivided Family. On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co sharers separately. On further appeal	 the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu Law in respect of family property and each member thereof had no definite share in it	 such property	 until partitioned	 was assessable to wealth tax in the hands of the Hindu Undivided Family. On reference	 the High Court held in favour of the assesses. Dismissing the appeal to this Court	 ^ HELD: Dayabhaga means partition of heritage. A Dayabhaga male 's wife or sons or daughters have no ownership in his property during his lifetime. Ownership of wealth is vested in the heirs by the death of their father	 when they become co heirs and can claim partition. The heritage of a Dayabhaga male does not become the joint property of the heirs or of the joint family on the demise of the last owner but becomes the fractional property of the heirs in well defined shares. That is why partition in Dayabhaga is defined as an act of particularising ownership. In Dayabhaga	 the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father. While Mitakshara is known as the School of "aggregate ownership"	 Dayabhaga is known as the school of "fractional ownership". The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabhaga it is unity of possession	 not unity of ownership at all. Under the Dayabhaga school every coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in.[1099D G: 1100B H] Sreemutty Soorjeemoney Dossee vs Denobundoo Mullick	 6 M.I.A. 526 at p. 553. Hindu Law by Colebrooke p. 9. 2. Law relating to the Joint Hindu Family (Tagore Law Lecrures) by Krishna Kamal Bhattacharya p. 168 and 3. Principles of Hindu Law by Mulla (14th Edition) p. 348. Hindu Law & Usage	 by Mayne	11th Edition 364	 approved. (i) Under section 3	 the liability of wealth tax arises in respect of the net wealth of the assesses. The term "net wealth" means all the assets belonging to the assesses	 on the valuation date. The expression "belong" according to the Oxford Dictionary means "to be the property or rightful possession of". [1098G H] (ii) The liability to wealth tax arises out of ownership of the asset and not otherwise. Mere possession or joint possession unaccompanied by the right to or ownership of property would	 therefore	 not bring the property within the 1097 definition of "net wealth"	 for it would not then be the asset belonging to the assesses. [1099C] In the instant case	 the property in question was the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the . The coparcenary had unity of possession but not unity of ownership on the property. Each coparcener took a defined share in the property and was the owner of his share. Each such defined share thus belonged to the coparcener. It was his net wealth within the meaning of section 2(m) of the Wealth Tax Act and was liable to wealth tax	 as such	 under section 3. [1102C D] Commissioner of Wealth tax West Bengal vs Gouri Shankar Bhar	 explained.