TMI Blog1972 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee in the notice of demand the assessment should be deemed to have been made in the status of association of persons which was not a unit on which tax could be levied under the Act ; (ii) even if the assessee was to be treated as 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 was taken in appeal, held that the assessee followed the Jain religion and since the unit chargeable to wealth-tax under section 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 section 3 did not cover the case of a Jain family. The Tribunal set aside the assessment on this ground alone. The Commissioner of Wealth-tax filed an application under section 27(1) of the Act praying that the question of law which arose out of the order of the Tribunal be referred to the High Court. At the time of the hearing of that application i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 section 20. It deals with assessment after partition of a Hindu undivided family. Under section 3 of the Act it is the Hindu undivided family which is one of the assessable entities. It should be distinguished from a Hindu coparcenary 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 who acquire by birth an interest in the joint corparcenary property, being the sons, grandsons and great-grandsons of the holder of the joint property. Thus, there can be a joint Hindu family consisting of a single male member and widows of deceased coparceners. It must be remembere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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 to the family of the assessee, he could be assessed only as an individual for wealth-tax purposes and could not be assessed in the status of a Hindu undivided family. The Mysore High Court was inclined to the view that the expression " Hindu undivided family " in section 3 of the Act was limited to Mitakshara families or families of persons professing Hindu religion governed by Mitakshara law and thus it could not include a Christian undivided family although governed by Hindu law. The Calcutta High Court in the judgment under appeal, however, did not consider that the Mysore High Court was right in holding that section 3 of the Act was limited only to Mitakshara families. It may be pointed out that so far as income-tax law is concerned the expression " Hindu undivided family " has been held to have reference to all schools of Hindu law and not to one school only. (See Kalyanji Vithal Das v. Commisssioner of Income-tax). The real question for determination is whether the word " Hindu " preceding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that Jains are recorded as a sect of Hindus. " Out of the decisions of the Privy Council, we may mention Sheokuarbai v. Jeoraj 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 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 Shraddha or ceremonies for the dead ". The above view has been challenged by Jain historians and writers and it has been maintained that the Jains are quite distinct from Hindus and have a separate code of law which unfortunately was not brought to the notice of the courts. Kumaraswami Sastri, Officiating Chief Justice, delivering the judgment of the Bench in Bobbaladi Gateppa v. Bobbaladi Eramma, elaborately discussed the contrary view and observed that if the matter were res integra he would be inclined to hold that modern research had shown that Jains were not Hindu dissenters but that Jainism had an origin and history long anterior to Smritis and commentaries which were recognised authorities of Hindu law and usage. Mr. C. R. Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the term 'Hindu'. We do not think that the legislature used the term " Hindu " 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 been explained by Mayne at page 5 of his treatise in the passage quoted by us elsewhere, and which has been the foundation of decisions on the subject in the courts of India. " 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 Council in Sheokuarbai v. Jeoraj. We may next notice certain decisions in which the word " Hindu " as used is various statutes came to be interpreted by the courts. In Kamavati v. Digbijai Singh, section 331 of the Indian Succession Act, 1865, had to be interpreted. According to that 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 Christiani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... robably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu law there was no separate mention of Jains along with the Hindus. The Jains were, therefore, governed by the Hindu Law of Inheritance (Amendment) Act, 1929. The mention of Jains separately in article 25 of the Constitution was noticed in Pannalal v. Sitabai and it was observed that the framers of the Constitution felt, having regard to the differences in the two faiths, that an express mention might 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 have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu law by the four statutes, viz., the Hindu Marriage Act, 1955, the Hindu Succession 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 ..... 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