TMI Blog1967 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... return, in his capacity as the administrator to the estate of the deceased, therein describing the status of the assessee as a Hindu undivided family. The Wealth-tax Officer also treated the status of the assessee as a Hindu undivided family. He took the net value of the assets at Rs. 8,39,125 and calculated the tax payable thereon at Rs. 4,391.25 P. Gouri Sankar, as the administrator to the estate, filed an appeal before the Appellate Assistant Commissioner and contended : (1) that the Wealth-tax Officer was wrong in proceeding on the basis that the assessee was a Hindu undivided family and in charging tax on that basis ; (2) that the family being governed by the Dayabhaga school of law and the share of the coparceners in the properties left by the deceased being definite and ascertained, the assessment should not have been made in their status as a Hindu undivided family and each member of the family should have been assessed separately upon the value of his or her respective share in the inherited property ; (3) that under the provisions of section 21 of the Wealth-tax Act, the assessment should have been made on the individual members and not on the Hindu undivided fam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amicus curiae. Counsel for the parties as well as Mr. Mitter rendered great assistance to us and we record our deep appreciation therefor. We now turn to the question referred to us. Mr. B. L. Pal, learned counsel for the revenue, submitted that the joint and undivided family is the normal condition of Hindu society. The existence of a joint estate is not an essential requisite for constitution of a joint family and a family which does not own any property may nevertheless be joint. Under the Mitakshara school of Hindu law, he submitted : (1) a Hindu coparcenary is a much narrower body than the joint family and includes only those persons who acquire by birth an interest in the joint or coparcenary property, namely, the sons, grandsons and great grandsons of the holder of the property for the time being ; (2) a Mitakshara coparcenary is purely a creature of law, it cannot be created by act of parties, save in so far that by adoption a stranger may be introduced as a member thereof ; (3) joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. Such property devolves by survivorship and not by succession and therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... births in the family. It is only by a partition that he becomes entitled to a defined share. 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. Every coparcener takes a defined share in the property and he is the owner of that share. That share is defined immediately the inheritance opens. It does not fluctuate with births and deaths in the family. Regarding presumption as to coparcenary property, he submitted that the presumption with regard to joint family and joint family property which applied to cases under the Mitakshara law would apply also to cases under the Dayabhaga law. In making the above submissions Mr. Pal relied on articles 277, 279 and 286 of Mulla's Hindu Law and in fact he bodily reproduced passages from the text book as part of his argument. On behalf of the assessee, however, it was submitted that the proposition that a coparcenary spontaneously comes into being under the Dayabhaga school of law, on the death of a father, amongst his heirs, by operation of law, was not a correct proposition. The heirs of a Dayabhaga family jointly inherit the property and become tenants in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long as unity of possession continues. " After having observed in that way, the learned author explained the nature of a joint family under the Bengal school as hereinafter quoted : " It is after the death of the father, that the sons may, agreeably to the modern view of the ancestral property, really become members of a joint family. According to the theory of the Bengal School they become tenants-in-common, and not joint tenants, in respect of the estate inherited by them from their father ; but still their interest remains common as long as the family continues joint, community of interest being the criterion of jointness in both the schools. The agreement forming the foundation of reunion proves the true nature and character of joint family property under the Bengal School notwithstanding the title of the coheirs being in severalty, namely, ' what is thine is mine, and what is mine is thine '. As regards what constitutes joint property, the enjoyment of the same by the members, the management of the trading manager's powers and the presumptions, the law appears generally to be the same in the Bengal School as under the Mitakshara. " Explaining the characteristics of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hindu families has undergone a very great change under the influence of modern western ideas and the courts should administer the law as applicable to the present circumstances. In a Dayabhaga family, separation in mess constitutes complete separation, because in respect of the ancestral property the shares of the coparceners are defined and their status is that of tenants-in-common... Thus under the Dayabhaga after separation in mess, all properties acquired by a coparcener in his own name should be presumed to be his separate property. The above passages, which were read to us either by the learned counsel of the parties or by the learned amicus curiae, do not help to establish the proposition that on the death of a Dayabhaga father a joint family spontaneously comes into existence amongst his heirs. In our opinion, Sir Dinshaw Mulla may be partly right in saying, in the note following article 277 of his book on Hindu law, that under the Dayabhaga school of law, " the formation of a coparcenary does not depend upon any act of the parties. It is a creation of law. It is formed spontaneously on the death of the ancestor ; it may be dissolved immediately afterwards by partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of these paragraphs he submitted that paragraph 27 quoted above contained an injunction for constitution of a joint family amongst the heirs after the death of the father. We do not find any such injunction in the passage. Paragraph 27 advising " let them live together " appears to be recommendatory in character and does not lay down a proposition that a joint family comes into existence amongst the successors by operation of law. The position in law may thus be summarised. After the death of a Dayabhaga father, his successors may live as a Hindu undivided family or be separate. If they do not decide to live together as a Hindu undivided family, they merely own the inherited property as joint property, that is to say, as tenants-in-common but do not form a joint family. A joint family amongst brothers, under the Dayabhaga school of law, is a creation not of law but of a desire to live jointly. It originates in fact and not by legal fiction. In the instant case, there is no evidence that the successors of the deceased Prafulla Chandra Bhar intended to constitute a joint family. They did not also spontaneously form a joint family by operation of law. Therefore, for taxation p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable upon and recoverable from the person on whose behalf the assets are held, and the provisions of this Act shall apply accordingly. (2) Nothing contained in sub-section (1) shall prevent either the direct assessment of the person on whose behalf the assets above referred to are held, or the recovery from such person of the tax payable in respect of such assets." That is an additional reason why wealth-tax assessment shall not be made on the Hindu undivided family but on the person on whose benefits the assets are held by the administrator. The fact that Gouri Sankar Bhar, the administrator, appointed by the court described the status of the family as Hindu undivided family in the return is of little consequence. That admission may be shown to be wrong and does not bind the other heirs. In the facts and circumstances of this case, we are of the opinion that the idea of Gouri Sankar Bhar that the family constituted a Hindu undivided family was his own idea and was, to all intents and purposes, a wrong idea. In the view that we express, the question referred to this court must be answered in the affirmative and in favour of the assessee. The Commissioner of Wealth-tax m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family. Accordingly, he submitted that the assessment had been properly made on the administrator in the status of a Hindu undivided family. The distinction sought to be drawn by Mr. Pal between property belonging to a person of which he is owner was too subtle for me. The authorities relied on by Mr. Pal were decisions of the English court on the peculiar provisions of particular English statutes and those authorities have no bearing on the meaning of the words " belong to " as used in the Wealth-tax Act. This is clear from the corresponding passages given in Stroud's Judicial Dictionary and in Roland Burrow's Words and Phrases from which the cases above-mentioned had been collected by Mr. Pal. In Murray's ' New English Dictionary ', 1886 edition, one of the meanings attributed to the words " belong to " is : " to be the property or rightful possession of ". The illustrations given in the said dictionary are as follows : " Rushen Abbey belongs to the Cistercian order " " Property belonging to another state etc." It is obvious that the plain dictionary meaning of the words " belong to " is " to be owned by ". If it is conceded, as it must be, in view of the two decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manage the estate. Could it be said that a joint family constituting B, C and D comes into existence on A's death ? Mr. Pal was unable to give me satisfactory answer to either of the aforesaid problems I gave him. Mr. Pal referred us to Jimutabahan's Dayabhaga as translated by Colebrooke, Chapter I, verses 7 and 8, which are as follows : " 7. Nor can it be affirmed, that partition is the distribution to particular chattels, of a right vested in all the coheirs, through the sameness of their relation, over all the goods. For relation, opposed by the coexistent claim of another relative produces a right (determinable by partition) to portions only of the estate since it would be burdensome to infer the vesting and divesting of rights to the whole of the paternal estate, and it would be useless, as there would not result a power of alienating at pleasure. 8. The answer is : Partition consists in manifesting (or in particularising) by the casting of lots or otherwise, a property which had arisen in lands or chattels, but which extended only to a portion of them and which was previously unascertained, being unfit for exclusive appropriation, because no evidence of any ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
