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TMI Blog1934 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1930. 5. The facts which have been found show that the firm was started in 1912 by Moolji Sicka, his brother Purushotam and Kalyanjee with funds which were not ancestral. The funds of Moolji and Purushotam were apparently derived from their mother. These two were not joint at any material time. 6. In 1919 a deed of partnership was executed and Kanji, Moolji's son, and Chaturbhuj, Kalyanjee's brother, were added as partners. About the same time, Moolji married a second wife, which led to family complications, and he and his sons decided to live apart. He transferred to each of them a part of his interest in partnership, and his first wife went to live with them. Kalyanji and his brothers Chaturbhuj and Champsi also agreed to live separately, and Kalyanji transferred a part of his interest to each of them. 7. For several years difficulties were experienced by the income tax authorities in obtaining any satisfactory accounts from the firm, and in 1930 steps were taken, under Section 34 of the Act, against the assessees. One result was that a further deed of partnership was executed under which Sewdas (another of Moolji's sons) and Champsi, the other brother of Kalya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is mentioned in the partnership deeds. Until the appeal to the Assistant Commissioner, they did not suggest that they were other than individuals so far as taxation under the Income Tax Act was concerned. It is alleged that in a former affidavit relating to some prior assessment some of the assessees claimed that they were kartas of Hindu undivided families, but this evidence is not before us and forms no part of the present case. 11. This reference by the Commissioner was made on the 8th June, 1933. At or about that time, certain further affidavits were filed. The Commissioner says, in an Appendix to the Paper-book that the application for reference to the High Court was made on the 14th January, 1933. Appellants were heard on various dates up to the 3rd May, and the Commissioner stated the case on the information on record up to that date. Subsequent to the drafting of the reference, three affidavits were filed which the Commissioner has appended to the case at the request of the applicants. Concerning those affidavits, the Commissioner says that in his opinion they ought not to be considered, that the statements contained in them are contrary to the facts recorded, and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dren and a daughter. He is not joint with his brothers. They live and mess separately. He became a partner in his individual capacity without employing any ancestral funds. His share is self-acquired. He has failed to prove that his earnings were thrown into common stock. He became a partner in 1912 with his self-acquired funds, and always acted in his individual capacity. What he did in 1919 amounted merely to the making of a gift of a part of his own money to his brother. Even if the capital and the earnings are to be taken as joint up to 1919, since 1919 when this alleged partition occurred, the property of each of them became separate. (4) Chaturbhuj :- His family consists of himself, his wife and a daughter, and no male child. He is not a member of an ancestral joint family. His share in the capital was transferred from Kalyanji's account in the firm. He has failed to prove that his earnings were thrown into common stock. Even assuming that he was joint with his brother before 1919, what he got as a result of the partition in that year became his separate and self-acquired property. (5) Kanji :- He is Moolji's son by his first wife. He separated in 1919. His family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idual capacities and was their self-acquired property. As regards the capital supplied by the three added members (viz.., Kanji, Chaturbhuj and Shewdas), this also belonged to them in their individual capacities because they got it by way of gift, and it was their self-acquired fund. 1 (b). On the question whether or not all of them purported to act for the family in the partnership, he refers to the fact that in none of the deeds of partnership are they described as Kartas of Hindu undivided families nor is he satisfied that the alleged partition between Mooljee and his sons, was, in fact a partition of property which, previous to that date had been joint family property. He says that the evidence before him was not sufficient to establish it. 13. With regard to the three additional affidavits the Commissioner came to the conclusion that these had been filed because the assessees realized the defects in their case and wished to strengthen. He says that he attaches no value to these affidavits, which I understand to mean that he does not believe the facts stated therein. He says also that he was not satisfied with the explanation given that the accounts of the business have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hold the joint property, to restrain the acts of each other in respect of it, to burthen it with their debts and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons who possess inferior rights such as that of maintenance, or who may under certain contingencies, hope to enter into the co-parcenary", and he arrived at the conclusion that the legislature, in using the expression ' Hindu undivided family', had in view a family which in the eye of law is the owner of the income, and did not intend the expression to connote a mere combination of persons who have no legal claim to such income, or right to insist on a division on such income. Therefore he held that in none of these cases was there a Hindu undivided family within the meaning of the Income-Tax Act. 15. Further he stated his opinion that even if he were wrong upon the first point, yet in view of the facts found that the income of each of the assessees was self-acquired, and had not been thrown into common stock, and there had been no waiver by the acquirers of their separate rights, the income in each case remained individual throughout, and was rightly assessed by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other words where there exists a Hindu co-parcenary. 19. Mr. R.C. Ghose, Mr, Hira Lal Chakravarty and Mr. Panchanan Ghose on behalf of various assessees have raised most interesting arguments to prove that a Hindu undivided family may be in possession of joint property or income in the absence of the existence of any co-parcenary. They have pointed out that both wives and daughters have rights of maintenance, and the sons have certain rights even in their father's self-acquired property. Consequently they have contended that these are co-owners, though they may not be co-parceners. To take one example. Where two brothers with wives, or wives and daughters, but no sons are coparceners, and one brother dies, their contention is that the Hindu undivided family does not come to an end, though the co-parcenary does, because there must be two co-parceners at least, and neither wife nor daughter can be co-parceners. Similarly, it has been argued that the self-acquired property of a father may be ancestral property in the hands of his son, even though he may not have sons of his own alive or yet born. 20. Undoubtedly there are parts of the text of Mitakshra and judicial decisions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property. He then discusses the various texts at length and shows that they are conflicting and attempts to reconcile them. Their Lordships of the Privy Council in the case of Rao Balwant Singh v. Rani Kishori (25 I.A. 54) observed that "All these old text-books and commentaries are apt to mingle religious and moral consideration, not being positive laws, with rules intended for positive laws." This fact undoubtedly gives rise to the difficulties which are met with in attempting to construe the various and apparently discrepant texts of the Mitakshara, and I sometimes wonder, when it becomes my duty to consider them, whether in many cases it is possible to reconcile them, or to dissolve the various dilemmas which have arisen in attempting their interpretation, especially in a case such as this, where we have to consider ancient texts in an attempt to construe the terms of a modern Act of the legislature. 22. With regard to the rights of maintenance etc., of wives and daughters, several authorities have been quoted to show that they have certain rights of co-ownership in their husband's or father's property. This matter is discussed in Banerjee's Marriage a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu undivided family and subject to taxation as such. The Income Tax Act, so far as Hindus are concerned as individuals, would apply only to bachelors. This cannot have been intended. In my opinion, therefore, where in the sections of the Income Tax Act a Hindu undivided family is mentioned, a Hindu co-parcenary is meant. 24. This is sufficient to dispose of the cases of Kanji, Sewdas and Chaturbhuj. Whichever is the corret view about self-acquired property, it seems to me to make no difference to the decision in this case. Whether Kanji's interest in this firm is in law self-acquired or ancestral property is irrelevant. The crucial point is the existence or otherwise of a co-parcenary. Kanji, Sewdas and Chaturbhuj have no sons, and it is beyond dispute that under Hindu Law females cannot be co-parceners. There cannot be co-parcenary without co-parceners. There must be a co-parcenary in fact before there can be one in law. In the absence of sons it is clear that neither Kanji, Sewdas or Chaturbhuj can possibly be regarded as members of three separate coparcenaries. A co-parcenary under the Mitakshara can only start with the birth of a son, as stated in Mulla, 7th Edition, at p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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