Commissioner of Income Tax vs I. Markondeya and Others

S.R. Nayak, J.—The following two questions of law arising out of the order of the Tribunal dated June 18, 1987, in ITA Nos. 818 to 820/Hyd of 1985 are referred to this court by the Tribunal as directed by this court u/s 256(2) of the Income Tax Act, 1961 :

"(1) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was correct in law in holding that the karta''s wife is entitled to a share at the time of partition on par with her sons in lieu of maintenance ?

(2) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal should have observed that since the karta is getting a share at the time of partition with his sons, his wife is not entitled to a share towards maintenance ?"

One I. Markandeya and his two sons, Srihari and Sridhar, were coparceners of the joint family of which the said I. Markandeya was the karta. The joint family owned a house at Bellary. It was acquired by the Government of India and the joint family received a sum of Rs. 3,89,995 by way of compensation. Thereafter, a memorandum was executed on December 24, 1978, to record the oral partition giving 1/4th share to each of the male members of the joint family consisting of I. Markandeya and his two minor sons as well as his wife by name, Smt. Sita Mahalakshmi. In terms of the memorandum, it was agreed among them that the amount of compensation be divided equally between the karta, his wife and two minor sons. The Income Tax Officer accepted the assessee''s claim of partition dividing the property into four shares and on that basis computed the income. However, subsequently the Commissioner of Income Tax exercising power u/s 263 of the Act held that according to southern school of Mitakshara law, the wife is not entitled to a separate share in the joint family property and, therefore, the assessment made by the Income Tax Officer holding that the 1/4th share of capital gain is assessable in the hands of each of these assessees is erroneous and prejudicial to the interests of the Revenue, by his order dated March 29, 1985. Against the said order of the Commissioner of Income Tax, the father and two sons preferred appeals before the Income Tax Appellate Tribunal.

Before the Tribunal it was contended that, though the practice of allotting a share to the wife has become obsolete, still it is not a rule of law. Alternatively, it was contended that under the provisions of the Hindu Adoptions and Maintenace Act, 1956, the wife is entitled to maintenance and, therefore, the 1/4th share allotted to her be treated as the maintenance provided to her at the time of the partition of the joint family property. It is also contended that the 1/4th share allotted to the wife towards maintenance is not excessive. The Tribunal, placing reliance on the judgment of the Madras High Court in P. Audemma v. P. Varadareddy, AIR 1949 Mad 31 and on the judgment of this court in Adusmilli Seethalakshmamma Vs. Yerneni Chalamaiah and Others, , held that the wife is not entitled to a separate share in the joint family property. However, the Tribunal, on consideration of many authorities and case law, including the judgment of this court in Commissioner of Gift-tax Vs. Valluru Venkateswara Rao, , came to the conclusion that the wife of the karta is entitled to be maintained by the karta and her sons and a provision could be made in favour of such female at the time of partition of the property of the Hindu joint family. The Tribunal also found as a matter of fact that the 1/4th share in the joint family property was allotted to the wife of the karta at the time of partition towards her maintenance. So holding the Tribunal allowed the appeals filed by the father and two sons.

The only question that arises for our consideration is whether the finding of fact recorded by the Tribunal calls for interference. There is no controversy and there cannot be any controversy that under the provisions of the Hindu Adoptions and Maintenance Act, 1956, the wife of the karta herein Smt. Sita Mahalakshmi has an encorceable right for maintenance both against her husband and sons as per sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956. It was specifically pleaded before the Tribunal that the 1/4th share was allotted to the wife of the karta towards her maintenance and that the said share is not excessive. The Department has not placed any material either before the Tribunal or before this court to show that the 1/4th share allotted to the petitioner is not towards maintenance or that it is excessive. Be that as it may, the finding recorded by the Tribunal that the 1/4th share was allotted to the wife towards her maintenance and that it is not excessive is a pure finding of fact.

In that view of the matter, we answer the questions referred to us in favour of the assessee and against the Revenue. No costs.