TMI Blog1936 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... curities 420. 3. Property 8,446. 4. Business money-lending (Rs. 998) and Kerosene oil Agency (Rs. 525) 1,523. 5. Other sources: Dividends (Rs. 540) and quarries and fisheries (Rs. 3,755) 4,295. ₹ 64,083. He was assessed both to Income Tax and super-tax, super-tax being levied as on an individual. With the exception of certain amounts it was admitted that the Raja was rightly assessed as an individual. The sums about which there is dispute are ₹ 8,436 from property, ₹ 998 from money-lending business and ₹ 3,755 from other sources (fisheries and quarries). These sums are income derived from the impartible estate. The assessees contention is that they are income of the joint family and therefore the joint family should have been assessed as such in respect of them and not the Raja as an individual. The point for consideration is whether for purposes of Income Tax the income from the impartible estate is income of the joint family of which the Raja is the manager; and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o it. In the course of the judgment of their Lordships Board a large number of cases touching the question are referred to and examined; and in drawing a distinction between an impartible estate and the ordinary joint family estate on page 1413 it is stated : Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have (1) the right of partition (2) the right to restrain alienations by the head of the family except for necessary (3) the right of maintenance and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kuaris case I.L.R. 10 All. 272 and the First Pittapur case I.L.R. 22 Mad. 283 and so also the third as held in the Second Pittapur case I.L.R. 47 Mad. 778. To this extent the general law of the Mithakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red property with the income of the estate as in the case of ordinary joint family estate. The case does not decide that, if the estate is impartible, there can be no incorporation at all. On the contrary, there is an implication, and that too a strong one, that there can be an incorporation at least as regards immovable property. Several other cases are also referred to. On page 1418 the distinction between the blending of income in the case of a member of a joint family and a member of it who is the holder of an ancestral impartible estate is stated as follows : If a member of a joint family blends the income of his self-acquired property with the income of the joint family property, it raises a presumption of an intention to incorporate the self-acquired property with the joint family property : Rajani Kanta Pal v. Jagan Mohan Pal I.L.R. 50 Cal. 439. But no such presumption can arise if a member of a joint family, who is the holder of an ancestral impartible estate mixes the income of his self-acquired property with the income of the estate. Having dealt with the question of the incorporation of immovable property purchased out of the income of an impartible estate and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsiderable doubt has since been set at rest by the decision of their Lordships in Shibaprasad Singh v. Prayag Kumari Debee I.L. R. 59 Cal. 1399 already referred to, Lord BUCKMASTER in delivering the judgment of their Lordships Board on page 325 states as follows : Originally the estate was in debt, and as there is no evidence of any acquisition of property from other sources, it follows that all the estate possessed by the Raja, other than the impartible raj was derived from the income of the raj itself. In the end this income produced very considerable property. There were certain villages, certain mortgages, usufructuary and otherwise, sums due on bonds and decrees, Government Promissory notes to the extent of two lakhs, and other movable and immovable properties. With the exception of the Government Promissory notes the whole of these have been awarded to the plaintiff upon the ground that they represented an accretion to the estate and descended with it. Their Lordships think that this conclusion is wrong and that its error is due to the idea that the produce of the impartible estate naturally belongs to and forms an accretion to the original property. In fact when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an impartible estate where the income is the sole property of the holder for the time being. On page 88 DAWSON MILLER, C.J., says :- The income of the estate is that of the incumbent for the time being, nor does the fact that he is bound to maintain his sons entitle him to treat the income as that of the undivided family. It is essentially his income and I so hold. The Finance Act contemplates the larger deduction for purposes of super-tax only in a case where the income is that of the undivided family in which they are all jointly interested and not in the case of an impartible estate where the income is the sole property of the holder for the time being . The latest decision of the Privy Council in Collector of Gorakhpur v. Ram Sunder Mal (56 All. 468) does not touch this question and what was decided there was that the right of the junior members of the family to maintenance out of an ancestral impartible estate is based upon their joint ownership and not custom. It does not say that the income of an impartible estate is not the income of the holder for the time being or that the latter is bound in law to apply the income or any portion thereof towards maintenance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishore v. Commissioner of Income Tax 14 Lah. 255 was also cited for the assessee. What was decided in that case was that there is no legal sanction for the proposition that an estate which is governed by the rule of primogeniture cannot belong to an undivided Hindu family but must be the sole property of the person who has succeeded to it by the rule of primogeniture. This decision, however, does not touch the question in point here. It is not disputed that the corpus belongs to the undivided family. The question is as regards the income; and if in this case it is assumed that the income from an impartible estate means the joint family income, then that is clearly contrary to what was decided in Jagadamba Kumari v. Wazir Narain Singh, Parbati Kumari Debi v. Prayagkumari Debee and to none of these cases is any reference made; and we must respectfully dissent from that view. In Commissioner of Income Tax, Bihar and Orissa v. Maharaja Visheswar Singh 14 Pat. 785 it was held that S. 14(1) of the Income Tax Act applies only to sums received by a member of a Hindu undivided family out of income to a share in which he has a vested right, that is to say, sums which he receives from the joi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
