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TMI Blog1972 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... in an affidavit dated February 27, 1964, made a declaration that the property was treated and held by them with effect from 1st April, 1963, as the property belonging to the Hindu undivided family of which they were members. The assessee is a medical practitioner in Bangalore. When she filed her return before the Income-tax Officer for the assessment year 1964-65, she did not include in her return the income from the above property on the ground that it belonged to the Hindu undivided family. The Income-tax Officer while holding that the property became the property of the Hindu undivided family with effect from February 27, 1964, was of the opinon that up to February 27, 1964, one-half of the income from the property was taxable in the hands of the assessee. The Income-tax Officer, therefore, included the assessee's half share of income from the said property up to February 27, 1964, while computing her income for purposes of income-tax. The assessee preferred an appeal against the order of assessment made by the Income-tax Officer before the Appellate Assistant Commissioner of Income-tax, " B " Range, Bangalore, who held that there was no effective abandonment or transfer of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood in the larger sense. The expression "joint family" is used in a narrower sense to denote a much smaller body called "coparcenary". Hence, whenever the expression "joint family" is used in any law or judicial precedent, it becomes necessary to ascertain whether it is being used in the larger sense or in the narrower sense. The expression "joint family" when it is used in its narrower sense to denote a coparcenary refers to a body of male members of a joint Hindu family who are descendants within three generations in the unbroken male line next to the ancestor who is alive. All members of a coparcenary are called coparceners. They acquire title to the coparcenary property or joint family property by birth with a right to enforce a partition. The mode of acquisition of title by a coparcener to the coparcenary property is called unobstructed heritage (aprathibandhadaya) as distinguished from acquisition of title by a person on the death of another (obstructed heritage or saprathibandhadaya). Female members of a joint family are not considered as members of a coparcenary. They have only a right to be maintained by the joint family. In recent times, by statute law enacted by Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he treats his separate property as joint family property what he intends is only to tranform his individual property into collective property of himself and other coparcners and to alter the alter the mode of develution of the said property Would similar consequences flow if a female member gives up her seperate right in her property favour of a joint family ? The answer is in the negative. When the property becomes joint family property- (i) the female member cannot manage it, for she can never be a manager of a joint Hindu family governed by Mitakshara law ; (ii) no part of it can be sold in execution of a money decree obtained against her by any of her creditors ; and (iii) she cannot seek a partition of the property (except when it is permitted by statute law). She would virtually lose all control over the property and there would be extinguishment of all her rights in it, except that she may be able to claim a charge on the said property also for her maintenance. It is, therefore, seen that the legal consequences of abandonment of his interest in separate property in favour of the joint family by a coparcener are different from the consequences of a transfer by a femal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending ; but the basis of the doctrine is the existence of coparcenar and coparcenary property as well as the existence of the separate property of a coparacener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenary property. She holds the property as a limited owner, and on her death the property has to devolve on the next reversioner. Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother's estate as in Madras or a Hindu widow succeeding to her husband's estate, to efface herself and accelerate the reversion by surrender ; but, as is well-known, surrender has to be effected according to the rules recognised in that behalf. A Hindu fema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y merely making a declaration, treat her separate property as joint family property. Sri V. Krishnamurthy, learned counsel for the assessee, next contended that the law which recognised the transformation of separate property of a coparcener into a joint family property was judge-made law and hence the very same principles can be extended to the case of female members of a joint family also without making a distinction between one member and another member of a joint Hindu family on the ground of sex. It was argued that the acceptance of the said view would be in conformity with modern notions of civil law. There are two difficulties in agreeing with the above contention. If the case is considered as one based not on the Hindu law, but only on principles of justice, equity and good conscience based on considerations of love and affection, then no distinction can be made between a Hindu family on the one hand and a Christian or Muslim family on the other. The same principle will have to be extended to all families in India and whenever a member of a family makes a declaration treating a property as property belonging collectively to all the members of the family it will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nees. Here again the question whether the parties are coparceners or not assumes importance in deciding whether the property is joint family property or not. At this stage we may also observe that Hindu law recognised yet another transaction which was dependent upon the pre-existing relationship amongst the parties even though it did not strictly amount to a transfer. The said transaction was one by which a limited owner could surrender her limited estate in favour of the nearest reversioner. She could do so in favour of the nearest reversioner if there was one or of the whole body of nearest reversioners, if there were more than one. Such an act of surrender amounted to the effacement of the limited owner an effacement which in other circnmstances was effected by actual death or by civil death of a limited owner (vide Natvaylal Punjabbai v. Dadubhai Marubhai. It was also open to a widow who was a limited holder to surrender the estate to a next reversioner even where the latter was a female heir. But a widow could not validly surrender in favour of the next female heir and her husband jointly, for her husband would be a stranger in that context. (See Mummareddy Nagi Reddy v. Pitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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