Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding


  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

1921 (1) TMI 1

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... oti Mai at Ferozepore, and the Hundis in question were given by this firm in the way of its business for Udebts due to the plaintiffs, who were near relatives. In the conduct of this business the appellant took no part. He was not privy to the debts iucurred. In his youth he was for seven years absent from India for the purpose of being specially trained in England for the Indian Civil Service. He succeeded in entering that service and, returning to India, was posted to the Central Provinces. At the commencement of the suit he was Joint Magistrate at Sitarpur and in receipt of the substantial emoluments of that office, but he has never severed himself from the joint family of which he became a member at his birth. 4. In a joint Hindu family, such as this, the rule is that the acquisitions of the members are joint property and partible, that is to say, liable to be shared with the other members of the family, and impartibility is the exception. 5. One of the recognised exceptions is property acquired by the possession of special science or learning . Where, as often happens, this is acquired outside the family and has to be paid for in one form or another at the expense of .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... iment to the father's estate and acquired by the coparcener's exertions independently of patrimonial help. Succeeding commentators developed this point;, not always in terms that can be completely reconciled, but the rule itself is simple and logical: though difficulties arise, as with so many rules, in the application. If the substance of the distinction is between acquisitions which have and acquisitions which have not involved the use of the patrimony, and therefore such detriment to it as use of it or expenditure out o!! it involves, there is no logical reason for making any further distinction between gains made by science and gains made by labouring on the patrimony or by laying out the family funds and reaping the fruits of the ontlay, nor for distinguishing cases where the learning employed is a specialised and cases where it is a mere ordinary education. The connection between the outlay and its fruits may be more difficult to trace; for a distinction can be made between the use of family funds in acquiring gain and the use of family funds to qualify a member of the family to acquire gain by his own efforts. It may be said to be direct in the one case and remote in .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ssion, astrology enjoyed no immunity. Still more striking is Laleshman Mayaram v. Jamnabai (1882) I.L.R. 6 Bom. 225 where the family member was actually a Subordinate Judge. At the family expense he had received a slight elementary education of an entirely non-professional character. His law he had picked up for himself. His salary was held impartible, not because a judge stands outside the rule or because a knowledge of law in the nineteenth century is not within the term learning as used in the eleventh, but because in these matters a self-taught man has the best of it, for gains are impartible which are not the result, directly or indirectly, of anything but his own exertions. 9. The present case is the first in which such an official position as that of the appellant has come into question, , but, except for its higher respectability, there does not seem to be any ground on which as an occupation it can be taken out of the rule which the earlier cases establish. Mr. J.D. Mayne's well-known work on Hindu Law has throughout all its editions contained the statement in Section 283 that a post in the Covenanted Civil Service of India is a post to which the rule would apply .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... and's education was, above all, a specialised education. 12. Among the unseparated members of a joint Hindu family, possessed of ancestral property by means of which the science, whose gains are in question, might itself have been acquired (Bai Manchha v. Narotamdas Kashidas (1869) 6 B.H.C.R. (A.C.J.) 1. the presumption, even in the case of such special gains, is that the acquisitions of all members are partible, until the contrary is proved. This was first decided in Luximon Row Sadaaew v. Mullar Row Bajee (1831) 2 Knapp P.C.C. 60. Observations have since been made on the slender evidence which connected Luximon's position as Prime Minister to the Peishwa with the joint family property either through his education or otherwise, but the rule there laid down as to the presumption, though for a time not always acquiesced in, is now unquestionable and binds their Lordships. It is true that a distinction may be drawn between a presumption in favour of partibility, which is a legal attribute of the gains in question, and a presumption in favour of detriment to the patrimony involved in acquiring the specialised learning, the use of which has produced the gain, which is a ques .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... d for the purposes of the acquisition, and not to its use in acquiring the science by means of which they are gained, and he cites Sir T. Strange's opinion that in order to make the gains in question partible the common fund must have been directly instrumental in procuring them. There is also an allusion in Lakshman Mayaram's case to the branch of science 'which is the immediate source of the gains' a passage, however intended to distinguish between elementary and specialised education, and not between the direct and indirect fruits of the latter. This view was, however, overruled on appeal in Chalacocondas case and has never been re-established. For fifty years and more the current of authority has run the other way, and in any case, in their Lordships' opinion, it is now too late to change it. 14. It is true that, partly in the hands of the commentators and partly under the decisions of the Courts, changes may be traced in the rules laid down with regard to gains of science, and these changes have been in the direction of narrowing the category of partible gains. From maintenance out of family funds during the period of education, the basis of partibili .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates