TMI Blog1975 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated December 8, 1944, the Hindu undivided family of which the said Tej Singh was the karta was assessed to a tax of Rs. 6,24,516.10, on a total income of Rs. 7,81,261. On the failure of Tej Singh to pay the tax, proceedings for recovery of the tax were initiated. Before the said proceedings were completed, Tej Singh himself died on February 2, 1965. The sons of Tej Singh including the appellant herein filed a petition before the Commissioner of Income-tax, Madras, putting forward the contention that the property which is the subject-matter of the suit, namely, No. 39, Vepery High Road, Madras, did not belong either to Tej Singh or to the joint family of which he was the karta, but, belonged to the appellant and his brothers individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion and that the question of title could be disposed of only after taking evidence both oral and documentary and, in the light of that, all that could be done was to file a suit. It is only on account of this view of this court, this court gave the appellant herein time to issue a statutory notice under section 80, Code of Civil Procedure, and thereafter, file a suit to establish his title to the property in question. It is after the disposal of the said writ petition that the appellant herein, after giving notice under section 80 Code of Civil Procedure, filed the suit which has given rise to this appeal, praying for the relief of declaration that the appellant is the owner of one-fifth share of the suit property and injunction restraini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which was said to be covered by issue No. 5. The learned IV Assistant judge, City Civil Court, Madras, by his judgment and decree dated 16th March, 1971, decided all the issues against the appellant and dismissed the suit. It is against this judgment and decree that the plaintiff in the suit has preferred this appeal. There are certain positions which have been conceded by the learned counsel for the appellant. One is that the property in question, namely, No. 39, Vepery High Road, Madras, had not been proved to be individual property of the appellant and his four brothers and, therefore, the learned counsel conceded that he could not argue anything contrary to the finding that the property was the joint family property. The second is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... straining the second respondent herein from proceeding to recover the tax arrears from the property in question. Though the prayer in the plaint is rather widely worded, namely, for an injunction restraining the second defendant from proceeding against the plaintiff for recovery of the income-tax arrears, the real relief the plaintiff wanted was that the second defendant should be prevented from proceeding against his share in the property in question, namely, No. 39, Vepery High Road, Madras. In my opinion, the appellant is not entitled to any such relief. Once it is held that the assessment to tax made on the Hindu undivided family has become final, the property belonging to the said Hindu undivided family is liable to be proceeded agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu undivided family itself was assessed to tax, the liability was that of the Hindu undivided family and was not the personal liability of Tej Singh, the father of the appellant herein. This conclusion is sufficient to dispose of the argument advanced by the learned counsel for the appellant. However, the learned counsel for the appellant sought to place considerable reliance on a decision of the Andhra Pradesh High Court in J. Devaraja Rao v. Income-tax Officer. I am of the opinion that that decision is not of any assistance whatever to the appellant herein and on the contrary it is against the appellant. It has been held by a Bench of this court in M. R. Radhakrishnan v. Union of India that arrears of income-tax cannot be considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such estimate. This court as well as the Andhra Pradesh High Court pointed out that the fact that the income was estimated and the tax was levied on that basis would not in any ay affect the position. The Andhra Pradesh High Court observed: "It is stated that the assessment wag made on an estimated income but even so the tax so levied would still be tax legitimately due as it has been held that even an estimate cannot be arbitrary and must rest on some rational basis." Therefore, these two decisions are against the contention of the learned counsel for the appellant and it is in view of this that I stated that the reliance on the decision of the Andhra Pradesh High Court is not of any assistance whatever to the appellant and as a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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