TMI Blog1962 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ade a declaration whereby he impressed the separate and self-acquired property which he then possessed with the character of the joint family property of the joint family consisting of himself, his wife, son and two daughters. The declaration was to the effect that he had on that date thrown all his separate and self-acquired property into the family hotchpotch and the same would thereafter be held by him as the karta of the Hindu undivided family consisting of himself, his wife, son and daughters. It may be noted that before making the said declaration, he had not declared his intention to separate from the main joint family consisting of his father and his other brothers and their children. He and his branch, therefore, continued to remain in the main joint family as members thereof. The income derived from the assets, which were the subject-matter of the declaration made by the assessee, was ₹ 927 in the assessment year 1956-57 for which the relevant account year was the financial year ending with 31st March, 1956. During the assessment year 1956-57 the assessee submitted two returns, one in the status of an individual and the other in the status of a Hindu undivided famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the merits of the case, in view of the several steps, which the assessee had taken to give his self-acquired property the character of the joint family property of the branch family of which he was the karta, there could be no doubt whatsoever that he had clearly and unequivocally thrown the said property into the common stock of his branch family and abandoned all intentions to hold it as a separate property thereafter. According to the Appellate Assistant Commissioner the item of ₹ 927 was the income of the Hindu undivided family and had, therefore, to be deleted from the individual assessment of the assessee. He accordingly allowed the assessee's appeal in this respect and directed the Income-tax Officer to revise the assessment accordingly. The view taken by the Appellate Assistant Commissioner was confirmed by the Income-tax Appellate Tribunal in the appeal which the department took to it. Thereafter at the instance of the department, the Tribunal drew up a statement of case and referred to this court the following question as arising out of its order: Whether the income of ₹ 927 arising from the property covered by the declaration of August 27, 1955, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independently of the main joint family, by impressing some of his own self-acquired property with the character of the property of the said Hindu undivided family. Mr. Joshi contended that if the assessee, who was a member of the main Hindu undivided family, were to exercise the power possessed by him under the Hindu law to throw his self-acquired property in the hotchpotch of the joint family, the only hotchpotch into which he could throw his property was the hotchpotch of the main Hindu undivided family. According to Mr. Joshi, while the assessee had not separated from the main Hindu undivided family and had continued to remain a member thereof, he had no right to throw his self-acquired property into the hotchpotch of a branch family consisting of himself, his wife and children. Another argument advanced by Mr. Joshi was that even if it were assumed that a member of the main family could throw his self-acquired property, into the hotchpotch of the branch family to which he belongs, it was only if the branch family had a hotchpotch as distinct and separate from the hotchpotch of the main Hindu family that he could do so. Where, however, there was no such hotchpotch of the new joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As to the property possessed by the Hindu joint family, property may be possessed by the entire family in which members of the family have interest by birth. Individual members of the family again may possess property, which belongs to them separately as distinct from the joint family of which they are members. Where a Hindu joint family consists of branch families it may also be that each of the branch families may possess property which constitutes the joint family property of that branch alone and in which the other branches or the main Hindu family as such have no right or interest. That such is the position under the Hindu law is clearly pointed out in Sudarsanam Maistri v. Narasimhulu Maistri [1901] ILR 25 Mad. 149. Bhashyam Ayyangar J. dealing with the principles of Hindu law bearing on the conception of the Hindu joint family observed as follows : The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body...and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. Omitting the female members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he larger family as that would amount to creating joint families by two or more members of the main family by their act, cannot also be accepted. The branch family springing from the head of the branch is itself a Hindu undivided family as conceived under the Hindu law. It is not a creation by act of parties, but is the creation by law. When it is said that two or more members of the family cannot come together to form a separate Hindu family as distinct from the main Hindu family, what is meant is, as explained by Bhashyam Ayyangar J. in the case referred to above : ... so long as a family remains an undivided unit, two or more members thereof-whether they be members of different branches or of one and the same branch of the family,-can have no legal existence as a separate independent unit; but if they comprise all the members of a branch, or of a sub-branch, they can form a distinct and separate corporate unit within the larger corporate unit and hold property as such. Thus, if a family consists of a father and four sons and their children, it is not possible, for instance, for the father and one or two of his sons to say that they will form another joint family so long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom throwing his property in the hotchpotch of the smaller unit to which he belongs, while the larger unit remains intact. The ability of the smaller unit to possess property of its own implies that it can have its own hotchpotch and into that hotchpotch can fall properties just in the same manner in which they can fall in the hotchpotch of the main family. Thus, there can be no legal obstruction whatsoever in the way of the assessee, who was possessed of his self-acquired property which he could deal with or dispose of in any way he liked, to give that property not to the entire joint family but to the branch consisting of himself and his children. The further argument of Mr. Joshi, that the throwing of property into the common hotchpotch is only possible where there is already a family hotchpotch, which is not altogether empty or in other words where there is some nucleus of the family, cannot be entertained in view of the decision of this court in I.T. Reference No. 27 of 1960 decided on the 30th of October, 1961 Damodhar Krishnaji Nirgude v. Commissioner of Income-tax [1962] 46 ITR 1252 , and the decision of other High Courts in Duggirala Sadasiva Vittal v. Bolla Rattain AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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