TMI Blog1973 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... t was delivered by HEGDE J.--- These are appeals by certificate. They arise from a common judgment delivered by the High Court of Patna. The assessee-respondent is the holder of an impartible estate. By an indenture dated November 23, 1950, he granted to his wife two premises at Camac Street, Calcutta, for life by way of supplementary khorposh (maintenance) grant. During the assessment years with which we are concerned, viz., 1957-58 to 1960-61, the income from those house properties was included in the total income of the assessee under section 16(3)(a)(iii) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as " the Act "). The assessee challenged the validity of that inclusion firstly, on the ground that section 16( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink it necessary to go into the third question. The answer to the third question necessarily depends on the answer to the second question. If we come to the conclusion that the second question was not correctly answered then it follows that the income from the properties in question has to be included in the total income of the assessee and the income from the residential house of the assessee will have to be computed at 10% of his total income under the first proviso to section 9(2) of the Act. Hence, the material question to be decided is whether the income from the properties in Calcutta is liable to be included in the income of the assessee. The assessee is assessed as an individual. As mentioned earlier, he is the holder of an impar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition' is---not that property which is not joint property devolves by virtue of custom as though it had been joint---but that the general law regulates all beyond the custom, that the custom of impartibility does not touch the succession since the right of survivorship is not inconsistent with the custom ; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate, is also the senior member in the senior line. " On the basis of the above reasoning their Lordships held " for the purpose of section 9 of the Act " the income in question is not the individual income of the holder of the estate. After that decision was rendered s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with an agreement to live apart. But, the assessee's contention was, which contention was accepted by the High Court, that section 9(4)(a) only deems the income of a house property included in an impartible estate as the individual income of the holder and that only for the purpose of section 9 and not for any other purpose. In other words, it was urged that the section raises a legal fiction and that legal fiction is limited for the purpose of section 9 ; it was further urged that a legal fiction cannot be extended beyond the purpose for which it was created. Counsel for the assessee urged that the fiction incorporated in section 9(4)(a) can be taken into consideration only for the purpose of section 9 and not for the purpose of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes mentioned in section 16(3)(a)(iii), income from that source has to be considered as the income of the assessee because an asset of the assessee stands transferred to his wife. Such a conclusion does not amount to extending the fiction created under section 9 beyond the purpose for which it is created. It merely gives effect to that fiction. It is true that a legal fiction should not be extended beyond the purpose for which it is created ; but that does not mean that the court should not give effect to that fiction. Section 27(ii) of the Income-tax Act, 1961, which has taken the place of section 9(4) of the Act does not begin by saying " for the purpose of this section. " On the other hand, it says that " the holder of an imparti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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