TMI Blog1974 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... rtuguese Civil Code, it has held that each of the consorts had a vested interest in his or her half share, and by its order dated 13th December, 1970, the Tribunal, therefore, confirmed the Appellate Assistant Commissioner's view that the income from the house property was liable to assessment in equal shares in the hands of each of the consorts separately and dismissed the appeal. On this reference, the following question has been referred to the High Court under section 256(1) of the Income-tax Act, 1961 : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the income from the house property possessed by the communion of interest of husband and wife married under the Portuguese Civil Code was liable for assessment in equal shares in the hands of the 'body of individuals' of communion of husband and wife for the relevant assessment year ? " When the matter first came up before us, parties were not agreed in regard to the proper translation of the relevant provisions of the Portuguese Civil Code. It was, therefore, adjourned for obtaining an official translation from Goa. When it came up before us again on 10th December, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain ". When the word " definite " is understood in the sense of " fixed ", it means fixed as opposed to fluctuating, and when the word " definite " is understood in the sense of " certain ", in my opinion, it means that it is certain in the sense of being not dependent on a contingency, or in the sense of not being in dispute. The case of Abdul Rahman v. Commissioner of Income-tax [1944] 12 ITR 302 (Lah) was a case in which the parties were Mahomedans. The brothers disputed the right of the sisters to any share in the estate left by their deceased father by reason of the customary law alleged to be applicable to them, and there was a suit pending between them. The view taken was that though the share of each heir could be said to be ascertainable, so long as litigations were pending, it could not be said to be definite within the ordinary meaning of that term. The term " ascertain " is also given several meanings in volume I of the Oxford English Dictionary, but the meaning which, in my opinion, is applicable in the context in which it is used in section 26 is part of the 8th meaning given therein, viz., to make precise by determining exactly its limits, extent, amount, etc. As al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the corpus of the house property owned by him, and the latter part of the section, when it refers to the income from that house property, postulates that the income is also to be owned by the assessee in the same definite and ascertainable shares as the corpus. The view I take of section 26, therefore, is that in order to fall within section 26, the assessee must have definite and ascertainable shares in the corpus as well as the income of all the house properties which he owns. I must next proceed to consider the relevant articles of the Portuguese Civil Code, translations of which have been tendered and marked exhibits "A " and " B " before us, as already stated above. Article 373 lays down that " things" are either immovable or movable ; article 375 then sets out what are " immovables " by virtue of law ; article 376 enacts that all material things which are not immovable properties are " movable " and clause " one " of article 377 lays down that by the words " movable things or movable estates " must be understood only material objects which by their nature are movable. These articles, in my opinion, show that money is not included within the term " movables " as used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the common estate vest in both the consorts during the subsistence of the matrimony, though the management of the estate of the couple belongs to the husband. The same article, however, provides, that the wife may manage the estate of the couple by consent of the husband, or during his absence or his suffering from some impediment. The word "dominion" has its derivation from the term" dominium " which is a term of Roman law often retained in legal use and means " lordship " or " ownership ". The Shorter Oxford English Dictionary, 3rd edition, therefore, gives at page 551, the meaning of the word " dominion" in law (third meaning) as being " ownership; property; right of possession," and that is the sense in which the word "dominion " is used in article 1117. Article 1118 empowers the husband to freely dispose of the movable properties of the couple, but in case he alienates or binds under a gratuitous contract any such property without the consent of the wife, the value of the properties so alienated is to be " taken into account " towards the husband's half share. The use of the words " dispose ", " alienates " and " contracts ", as well as the definition of the term " movable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given credit for what is due to her prior to the payment of the credits of the husband, and in case the common estate is insufficient for payment of her entire claim, the husband is liable to pay the same out of his own estate, except in the case of a debt not imputable to him. This article further provides that the husband is not to enjoy a similar right of claim against the personal estate of the wife, presumably because it is he who has been in management of the communion property and is, therefore, responsible for the situation contemplated by article 1124. Article 1189 states that the management of all the properties of the conjugal society belongs to the husband, but in the case of his absence or his suffering from any impediment, the wife may manage the same. Articles 1191 and 1193, however, impose restrictions on the rights of management of the husband or the wife, as the case may be ; article 1191 provides that the husband cannot, in the course of his management, alienate immovable properties or move the court in respect of any dispute relating to the same, without the consent of the wife. Article 1203 lays down that the conjugal society can be interrupted either wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artition, or the other spouse has consented to it, or in certain other cases to which it is unnecessary to refer. Article 10 of the Commercial Code enacts that the payment of the commercial debts of the husband, which are to be made through his half share in the common assets, can be prayed for before the dissolution of the marriage or separation ; and the wife must be summoned so that, if she so desires, she may apply for judicial separation of the assets within the period provided in that article. In my opinion, the only articles that need consideration in support of Mr. Joshi's contention that the shares of the husband and wife in communion property are not definite and ascertainable within the terms of section 26 of the Income-tax Act, 1961, are articles 1104, 1216 and 1220. In my opinion, however, none of the said three articles really help Mr. Joshi. Article 1104 applies only to the particular case of an ante-nuptial agreement in a marriage under articles 1096 and 1097, and can have no application to the present case which is not a case of such an agreement that is one of a marriage according to the custom of Goa. In the case of a separation of estate, article 1220 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip, but the half share of the deceased spouse goes by succession to his or her own heirs or legatees by virtue of articles 1122 and 1123. There is a consistent reference to the half share of each of the consorts throughout the different articles dealing with various situations (vide articles 1112 to 1114 of the Portuguese Civil Code, and article 10 of the Commercial Code dealing with the incidence of debts, and Portuguese Civil Code article 1118, dealing with the disposal of the movable property as well as articles 1120, 1123, 1220, 1463, and 1471). Mr. Joshi on behalf of the Commissioner formulated two propositions in support of his case, and they are as follows : (1) In communion properties, or their income, the husband and wife have each no definite and ascertainable share so long as the communion lasts; and (2) If he is wrong in that view, in any event, the husband and wife do not each have a definite and ascertainable share in each individual property. In support of these propositions, Mr. Joshi contended that under the Portuguese Civil Code the position of those married according to custom was akin to that of coparceners in a Hindu joint family, with only this differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Indian Partnership Act, and in support of that contention, he relied on the decision of the Rajasthan High Court in the case of New Cotton Wool Pressing Factory v. Commissioner of Income-tax [1967] 65 ITR 662 (Raj) in which immovable properties were owned by a firm, and it was held that section 9(3) of the Indian Income-tax Act, 1922, had no application to such a case. In arriving at that conclusion, the Rajasthan High Court correctly held (at pages 667-669), on a review of the provisions of the Partnership Act, and particularly section 48 thereof, that a partner cannot claim any definite share in the property of the firm so long as the firm was not dissolved and accounts settled as provided in section 48 of that Act. That view of the nature of a partner's interest during the subsistence of a firm, whatever be the character of the property brought in, is now confirmed by the Supreme Court in the case of Addanki Narayanappa v. Bhaskara Krishnappa AIR 1966 SC 1300, para. 3, in which, after referring to the relevant provisions of the Indian Partnership Act, the Supreme Court held that during the subsistence of a partnership no partner can deal with any portion of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the three widows could not be assessed in the status of an association of persons with regard to the income which they earned as the heirs of their deceased husband. On appeal to the Supreme Court, that decision of the High Court was confirmed. It was observed by the Supreme Court that the position of co-widows under Mitakshara law was well-settled, that they succeeded as co-heirs to the estate of their deceased husband and took as joint tenants with rights of survivorship and equal beneficial enjoyment; and that they were entitled as between themselves to an equal share of the income. It was further held (at page 549) that though they took as joint tenants, no one of them had a right to enforce" absolute partition " of the estate against others so as to destroy their rights of survivorship, but they had the right to obtain a partition of separate portions of the property so that each might enjoy her equal share of the income separately, though they had not chosen to do so in the said case. The Supreme Court pointed out (at page 550) that the Appellate Assistant Commissioner had held that section 9(3) applied to the income from the immovable properties in the said case and the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The share in the corpus also must be definite and ascertainable though it need not be absolute. It is sufficient even if the right to partition of that definite and ascertainable share is restricted, or is available for a limited purpose only, as, for instance, for the purpose of enjoying the income separately, as was the position in Indira's case [1960] 39 ITR 546 (SC). In Salmond on jurisprudence, 12th edition, pages 254-255, it is stated that co-ownership may assume different forms, and that the two chief kinds of co-ownership in English law were " in common " and " joint owner-ship ". It is pointed out there that the most important difference between these two relates to the effect of the death of one of the co-owners. In ownership-in-common the right of a dead man descends to his successors like any other inheritable right; but on the death of one of two joint owners his ownership dies with him, and the survivor becomes the sole owner by virtue of his right of survivorship. Though it is not necessary to give a definite label to the relationship of the husband and wife during the subsistence of the communion, it is important to bear in mind that there is no right of survivo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which he is the absolute owner, the Calcutta High, Court held that since on the death of J. K. Rudra, his widow became entitled to a moiety of the property with his son, section 9(3) was applicable and the income could not be assessed in the hands of the assessee-Hindu undivided family even if there was no partition between the widow and her son. It must be noted that under Dayabhaga law which was applicable to the parties in the said case, the coparcenary was first formed on the death of the said J. K. Rudra, and as between themselves the widow and the son of the deceased held his property as coparceners, each of them having the absolute power to dispose of his or her share. There is, therefore, also some similarity between the position of co-heirs under Dayabhaga law and the position of the husband and wife during the subsistence of the communion under the Portuguese Civil Code, with this difference that there is no power of disposal in each of them in the latter case as in the former. The result of a consideration of these authorities is that none of them deal with a legal position which is exactly the same as that of a husband and wife during the subsistence of the communio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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