TMI Blog1934 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... e heir-apparent should become the immediate beneficiary for whom the trustee was to manage the estate, and that the estate should be made over to the beneficiary on his attaining the age of 21. The deed reserved a sum of ₹ 25,000, a month, besides certain other benefits which need not be mentioned, for the Maharaja himself. It also provided that the younger son, the present assessee, should receive an, allowance of ₹ 5,000 a month on attaining majority. The deed of trust was given effect to, and, so far as the record, shows, the Maharaj Kumar was in receipt of the allowance fixed for him by the deed. The assessee attained majority in 1924 or 1925. By a deed dated 11th February 1928 the present Maharaja, the elder brother of the assessee, enhanced the amount of maintenance of the assessee to ₹ 10,000 a month. The Maharaj Kumar has since settled down in Benares in these provinces, and owns certain other properties besides his allowance. He was required by the Income Tax department to make a return of his income for the year 1931-32. The return which he made showed a sum of rupees 20,317, as his total assessable income. He did not include the sum of ₹ 1,20,000, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the present Maharaja. The Commissioner has not expressed any opinion on the further question whether, assuming that the assessee is a member of an undivided Hindu family, the allowance-received by him is a payment made to him as a member of that family. This is set out in the assessee's second question but is not covered in the question framed by the Commissioner. In course of the arguments before us that point assumed considerable importance and was discussed by Learned Counsel on both sides at length. 5. It is clear to us that Section 14(1)can apply only if two conditions are made out. The assessee should establish that he is a member of a Hindu undivided family, and further that the sum in question has been received by him as such. It seems to u that the relation of cause and effect must exist between the position of the assessee as a member of a Hindu undivided family and the receipt by him of the sum which is in question for the purpose of assessment. If a person who is a member of a Hindu undivided family receives an allowance not because he is such a member but wholly apart from that position Section 14(1) does not apply. It is only if the assessee has received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e custom of impartibility. This right therefore still remains, and this is what was held in Baijnath Prasad Singh v. Tej Bali Singh A.I.R. 1921 P.C. 62. To this extent the estate still retains its character, of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights, which a coparcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate, It is a right, which is capable of being renounced and surrendered. Such being their Lordships' view, it follows that, in order to establish that a family governed by the Mitakshara, in which there is an ancestral impartible estate, has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and worship. 6. According to this theory of the rights of junior membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made, but have a right to control the actions of the ruling Maharaja in making alienations and incurring debts. In so far as Section 4 imposes certain limitations on the powers of the proprietors of impartible estates to which it applies, it improves the position of the junior members of the family. In case of improper alienations the junior members can sue for setting aside such alienations. The proprietors of the impartible estate cannot incur debts except within the limits allowed to a karta of a joint Hindu family subject to the Mitak shara law. It follows that unless a disruption of the Yizianagaram family has taken place, the assessee, as a member of that family having acquired a right in the ancestral property by birth, cannot but be considered to be a member of a Hindu undivided family within the meaning of Section 14(1), Income Tax Act. The learned Advocate for the Income Tax Commissioner strongly relied upon certain observations occurring in cases which are all referred to in the latest judgment of the Privy Council mentioned above. It is argued that in families possessing impartible properties the right of a junior member as a member of an undivided Hindu family is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is in receipt of can be considered to be the income received by him as a member of the undivided family to which he belongs. As already mentioned, if the sum be considered to be in the nature of a gift pure and simple by the assessee'a father and brother, it cannot be characterised as income received by a member of a Hindu undivided family as such. The Commissioner of Income tax has not addressed himself to this aspect of the case though it was contemplated in the second question formulated by the assessee. It seems to us that if the assessee was, by custom applicable to the Yizianagaram estate, entitled to be maintained with the revenues of the estate, and if the allowance fixed for him by his father and brother is in satisfaction of his right to be so maintained, he should be considered to have received it as a member of a Hindu undivided family. Ordinarily every junior member of an undivided family possessed of impartible property is not of fight entitled to claim maintenance in the absence of a custom to the contrary. In each case a junior member claiming to be so entitled must establish a custom to that effect. The quantum of proof will, however, vary with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The assessee is not receiving any other allowance for maintenance. It is permissible to infer that the Maharaja recognized his right and fixed it in the then circumstances of the estate at ₹ 5,000 a month. Subsequently his brother raised it to ₹ 10,000, probably in view of the improved resources of the estate on which the amount mast necessarily depend. 12. The learned Advocate for the Income Tax Commissioner relied on certain cases in which allowances paid to widows were; held to be separately taxable. This class of cases is quite different to the case before us, as widows cannot be regarded as members of an undivided Hindu family within the meaning of Section 14(1), Income Tax Act. On the same ground the case of Kishen Kishore v. Commissioner of Income Tax, Punjab A.I.R. 1933 Lah. 284 is distinguishable. The learned Judges who decided that case definitely held that the assessee was separate. In their view the assessee had accepted the allowance and severed himself from the family. The allowance could not be considered as part of the family property so as to make the holder of the impartible property liable for the Income Tax. In the case before Us the allowance ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
