TMI Blog1982 (10) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... hey had a house at Raigarh and lived and traded jointly. Paluram created a temple within the house situate in the premises " Sewa Kunj " and installed his family deity of Shri Gauri Shankerji in the said temple. By a registered deed of endowment dated August 6, 1953, (Ex. P-1), he purported to dedicate to the said deity of Shri Gauri Shankerji all the house property including the garden and out houses in the premises " Sewa Kunj ". The purpose of this dedication is shown in the deed of endowment to be the maintenance of the temple and meeting out the necessary expenses of worship of the deity. The property is described as Paluram's self-acquired property. Under this deed, Paluram appointed himself as first shebait. The deed further envisages that on the death of Paluram, his sons jointly, and thereafter, the descendants in the male line will succeed as shebaits and in the absence of male shebaits, the widow, and in absence of any such widow, some other person in his family only was to be the shebait. The income of the property so dedicated was directed to be applied for the maintenance and repair of the property and for payment of cess, nazul taxes and other outstandings and for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the amount of tax due against that family. By his order, dated September 27, 1971, (Ex. P-6), the Tahsildar-cum TRO, Raigarh, did not think it proper to comment upon the order (Ex. P-3) passed by his predecessor, Tahsildar, and found himself unable to reopen the matter. Accordingly, he held that he was not competent to proceed against that property in view of the earlier order (Ex. P-3). Provision thereafter was made in the I.T. Act itself and certain ITO's were designated as TRO's and were invested with necessary powers to effect recoveries of dues against assessees. By order dated May 24, 1972 (Ex. D-38), Shri S. J. Mal, TRO, Raigarh Range, Raigarh, again took up the matter of recovery of taxes due against the HUF of Paluram Dhanania and attached the property in question. The shebaits of the deity, Shri Gauri Shankerji again raised the objection to attachment and sale of the property. The objections were overruled and the property was held to be belonging to the assessee, namely, the HUF of Paluram Dhanania. The sale of the property was directed to continue. As this order (Ex. D-38) adversely affected the alleged claim of title by the deity over the said property, a notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned district judge, who tried the suit, after recording evidence of the parties, who also filed numerous documents, concluded that the property in suit was the joint family property and Paluram Dhanania alone had no right to make a gift of that property to the deity. The two deeds of dedication (Exs. P-1 and P-2) were held to be fictitious and sham, designed only to avoid the tax liability. It was held that the two orders (Exs. P-3 and P-6) did not operate as res judicata. The registration of the trust was also held to be inconsequential. On these findings, the suit has been dismissed. On behalf of the plaintiffs-appellants, it was first argued that the lower court has gone wrong in holding that the property was not the self-acquired property of Paluram Dhanania. This contention, in our opinion is not sound. It is in the evidence of Bodhram Yadav (P.W. 3) that Paluram's father, Biharilal and uncle, Hardwarilal, possessed land and had a rice mill in Tarapur and were men of repute. Paluram had an ancestral house at Raigarh (Gopaldas Gupta, P.W. 5, para. 56, and Niranjanlal Sharma, P.W. 11, para. 25,). Paluram first started his career in Calcutta and then shifted to Raigarh, where h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration for the sale deed Ex. D-35. Clearly no reliance can be placed on this part of the testimony of this witness. Thus the oral evidence on this issue is rather scanty and leads us nowhere. There is no documentary evidence either. One, therefore, has to depend upon the conduct of Paluram and other members of his family in relation to this property. When examined closely, it will appear that Paluram, at no point of time, ever treated this as his self-acquired property. While acquiring it, he included an adult male member of his family as purchaser in the sale deed, Ex. D-35, and never claimed that the inclusion was nominal. Then he claimed all the business as joint family business. It was the joint undivided family that was assessed to income-tax and wealth-tax and there is nothing on record to show that Paluram was ever assessed individually. Before the execution of the deeds of dedication (Exs. P-1 and P-2), the income from the suit property was also shown in the income-tax and wealth-tax returns as the income of the joint family. Indeed, on September 7, 1950, Paluram, describing himself as karta of the HUF, voluntarily declared before the Income-tax Investigation Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt further held that where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition. The important thing, in such cases, to consider is the income which the nucleus yields. If the income is substantial, it may well form the foundation of subsequent acquisition. The Supreme Court further pointed out that these are not abstract questions of law but questions of fact to be determined on evidence in the case. (See also Rukhmabai v. Laxminarayan, AIR 1960 SC 335). We have earlier shown that although there is some evidence in the present case to show that there was some joint family property and business, yet there is hardly any evidence of income derived therefrom. That being so, the mere existence of some joint family property in the present case is of no assistance to the respondent and from that fact alone it is not possible to hold that the suit property was joint family property. Learned counsel for the appellants then pointed out that the lower court is not right in holding that Paluram Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xing which impresses the separate property with the character of joint family property but what is necessary is the intention by waiving and surrendering his separate rights. The act is unilateral on the part of coparcener seeking to blend his property and there is no question of the family rejecting or accepting it. It is of utmost importance that the individual renounces his individual rights in the property and treats it as that of the family. The moment he does so, the property assumes the character of joint family property. This doctrine is peculiar to Mitakshara School of Hindu law. Whether a coparcener has thrown his self-acquired property into the common stock and blended it with joint property is entirely a question of fact to be decided in the light of all circumstances of the case (See Narayana Raju v. Chamaraju, AIR 1968 SC 1276). Mere permitting user of the property or its income by other members of the joint family out of generosity or kindness of the holder is not enough. The holder cannot also be deprived of his self acquired property merely because he does not maintain a separate account of the earning out of that property. Where, however, an individual debited his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividually when it was sought to be dedicated to the deity installed in a temple situate within the premises " Sewa Kunj ". To wriggle out of this situation, learned counsel for the appellants argued that as karta of the family, Paluram had a right to make the gift of the suit property to the deity for religious and charitable purpose. The Hindu law permits small portions of immovable and reasonable portions of movable property to be given inter vivos for religious purposes, that is to say, for purposes which the court will hold to be conducive to religious benefit or for the furtherance of religion as these are understood in Hinduism today. Although the manager may alienate for optional as well as obligatory religious purposes, not every gift which appeals to the donor as dharmika will meet this requirement. Gifts for proper purposes, but of excessive amount are invalid in toto (See Introduction to Modern Hindu Law by J. Duncan M. Derrett, 1963 Edn., p. 267). In Guramma v. Mallappa, AIR 1964 SC 510, the court was concerned with a gift in favour of a daughter or sister as a provision for maintenance. Upholding such right, it was held that it is not possible to lay down a hard an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion whether the endowments made under the deeds, Exs. P-1 and P-2 are fictitious, nominal and bogus and not real and were made only with view to defeat the recovery of the taxes due against the joint family. We are, however, of the opinion that on the facts of the present case the lower court has rightly found that what is apparent is not real and that Paluram Dhanania had executed the two documents only with a view to defeat and defraud the Revenue and to save the property from being proceeded against for the recovery of income-tax and wealth-tax dues against the family. We say so because there appears to be no apparent need for making such dedications. At the time the first of these two documents, namely, Ex. P-1, was executed in the year 1953, the assessee, namely, the HUF was under liability to pay huge amount of income-tax. This is clear from the statement of Shri Ronel Daniel (D.W. 1), who was then the ITO. He has deposed that by the assessment order, dated 30th November, 1952, a sum of Rs. 1,05,000-9 was assessed as income-tax against the HUF of Paluram for the year 1950-51, which was not paid up to March 26, 1955. A demand notice was issued on 30th November, 1952, in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Learned counsel also placed reliance upon decisions of the Supreme Court in Dasaratharami Reddi v. Subba Rao, AIR 1957 SC 797, Ramchandra Shukla v. Shree Mahadeoji, AIR 1970 SC 458, and S. Shanmugham Pillai v. K. Shanmugham Pillai, AIR 1972 SC 2069), and certain other decisions. In one of these decisions, i.e., S. Shanmugham Pillai's case, it has been observed in para. 32 that a dedication may be either partial or complete, and whether or not it is so would naturally be a question of fact to be determined in each case on the terms of the relevant document, if the dedication in question was made under a document. It was further pointed out that in such a case it is always a matter of ascertaining the true intention of the parties and that such an intention must be gathered on a fair and reasonable construction of the document considered as whole. Their Lordships further observed (p. 2076): "If the income of the property is substantially intended to be used for the purpose of a charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellants further argued that the I.T. Dept. has registered the appellants' trust under s. 12A of the I.T. Act, 1961 and, therefore, the respondent is precluded from contesting its validity. The lower court has found against the appellants on this issue also, and, in our opinion, rightly. A significant fact in this regard is that the suit was filed on October 13, 1972, while s. 12A was included in the I.T. Act by Finance Act, 1972, with effect from April 1, 1973. Apparently, therefore, the registration relied on by the appellants was done during the pendency of the suit. This has been made clear by the appellant, Gopaldas Gupta (P.W. 5), in para. 91 of his deposition where he has disclosed that the application for registration was made on August 11, 1973, when the suit was obviously pending. He has further deposed that while making the application he concealed the fact that the suit property was attached by the Department for recovery of the dues and that the civil Suit regarding the appellants' title over the suit property was pending. For this reason alone, the plea so raised by the appellants must be rejected. Again, what s. 12A envisages is that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of such dues was being made through the Tahsildar to whom a revenue recovery certificate was forwarded. The rules embodied in Sch. II of the Madhya Pradesh Land Revenue Code 1954, contained the procedure to be adopted by the Tahsildar while making the recovery. According to those Rules, any third person aggrieved by an attachment of properties was entitled to file an objection that the properties were not liable to attachment/sale for recovery of dues against the defaulter. On receipt of such objection, the recovery officer was obliged to investigate into the claim/objection preferred and then either to allow or reject the objection. Rule 13(2) (sic) of the said Rules was as follows : " 12(2) (sic) The person against whom an order is made under subrule (1), may, within one year from the date of the order, institute a suit to establish the right which he claims to the property attached or proceeded against; but subject to the result of such suit, if any, the order shall be conclusive. Similar provision can now be found in various clauses in Part I of the Second Schedule to the I.T. Act, particularly cl. 11(6). Admittedly, when by order dated 28th January, 1959 (Ex. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tahsildar (Shri Bose) and to the consequent order passed, vide Ex. P-3. In any case, in the absence of any notice of those proceedings to the Department, the order cannot be held to be binding upon the Department. The subsequent order (Ex. P-6) passed by Shri Jha, in fact, does not decide any question/issue and does not deal with the question of attachability of the suit property on its merits. The Tahsildar passing that order, Ex. P-6, just refused to proceed with the realisation of the dues by attachment of the suit property by reference to the order (Ex. P-3). As we have held that the order (Ex. P-3) will not preclude the Department from proceeding to attach the property as that of the joint family of Paluram Dhanania, the order, Ex. P-6, is entirely inconsequential. We are, therefore, of the opinion that the Department was at liberty to proceed to realise the income-tax dues against the HUF of Paluram Dhanania by attachment and sale of the property in suit. The appellants are not entitled to the declaration sought for by them in the suit and their claim has rightly been dismissed. No other point was pressed. The appeal fails and is dismissed with costs. Counsel's ..... 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