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Judgment
T. Ramaprasada Rao, J.—On applications made by the assessee under Sections 27 (1) of the Wealth-tax Act, Section 66 (1) of the
Income Tax Act and Section 25 (1) of the Expenditure-tax Act, the Income Tax Appellate Tribunal has referred the following common question
for our decision:
Whether on the facts and in the circumstances of the case, the assessee and his son constituted a Hindu undivided family for purposes of
assessment under the Income Tax, Wealth-tax and Expenditure-tax Acts.
The Tribunal passed a consolidated order in the appeals against the assessments respectively made under the Income Tax Act and Wealth-tax
Act for the assessment year 1960-61 and 1961-62 and against the assessment under the Expenditure-tax Act for 1961-62. In all the appeals the
Tribunal sustained the assessment made on the assessee in the status of an individual. The assessee late R. Sridharan, was a member of a Hindu
undivided family, along with his father and brothers. On a partition between the assessee, his brothers and father, a block of shares in T. V.
Sundaram Iyengar and Sons Private Limited and three other Limited Companies were allotted to his share. At the time of the partition he was not
married. On 24th June, 1956, he married an Austrian Lady, Rosa Maria Steinbehler, under the Special Marriage Act, 1954. A son, Nicolas
Sundaram, was born to them on 29th November, 1957. Initially the assessee was assessed to Income Tax and Wealth-tax in the status of an
individual on his own declaration. In 1959-60, the assessee claimed the status of a Hindu undivided family consisting of himself and Nicolas
Sundaram. The assessee repeated his claim to be treated as a Hindu undivided family for the assessment years 1960-61 and 1961-62. The main
contention of the assessee was that Nicolas Sundaram was a Hindu and the property held by him was ancestral property and that therefore he has
to be assessed in the status of a Hindu undivided family. The Revenue negatived the contention. The appeal to the Appellate Assistant
Commissioner was unsuccessful. The tribunal was of the view that although Section 21 of the Special Marriage Act preserved some of the rights in
the family property to the children born of such wedlock, yet it did not clothe such issue with the character of a Hindu. The analogy of the status of
a Hindu widow, recognition to which was statutorily given by the Hindu Women''s Rights to Property Act, 1937, was, according to the Tribunal,
inappropriate. Ultimately the Tribunal was of the view that there was no Hindu undivided family of Sridharan and his son which could claim to be
taxed for the assessment years 1960-61 and 1961-62 as demanded by the assessee. Aggrieved against the said decision of the Tribunal, the
reference in the manner stated above is before us for consideration.
The contentions urged by the assessee before the. Revenue and the Tribunal were repeated before us. Mr. Swaminathan, appearing for the
asessees, strenuously argued that in the light of the treatment of the various members of a Hindu joint family, either under the orthodox Hindu Law
or by later statutory recognition thereof, it should be held in the instant case that Nicolas Sundaram is a member of a Hindu undivided family in
which the assessee is the head. He would also urge that the father having openly recognised and treated his son as a member of the joint family,
that by itself is a positive indicia that there existed a Hindu undivided family. Relying upon, the definition of '' Hindu '' in the various enactments such
as the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, and other such allied enactments, it was urged that Nicolas
Sundaram is a Hindu and he has to be treated as such. Mr. Swaminathan proceeds that if there is a Hindu undivided family consisting of the
assessee and Nicolas Sundaram, then it is easy to appreciate the character of the property held by the assessee at or about the material time and in
particular during the assessment years, as it ought to be treated, recognised and upheld to be ancestral property or joint family property. If
therefore is a joint family and the family owns ancestral or joint family property then the question referred answers itself in favour of the assessee.
The Revenue on the other hand represented by Mr. Balasubramaniam, contending contra, would state that Section 21 of the Special Marriage
Act, 1954, would not envisage a joint family as is orthodoxically understood in traditional Hindu Law as between the assessee and his son, and
even otherwise the property in the hands of the assessee which was secured by him at a partition, cannot be treated to be joint family property as
is commonly understood. His contention in the main is that there is no-substantial evidence to show that Nicolas Sundaram was brought up as a
Hindu, and even otherwise the incursions made by the statute law on the personal law of the parties cannot be pressed into service so as to
compulsorily recognise Nicolas Sundaram as a Hindu and as a member of a Hindu undivided family and thereby and thereunder recognised the
status of the assessee as a Hindu undivided family.
The problem posed and the question referred has to be considered in the light of the historic development of the system of joint family amongst
Hindu to whom the Mitakshara Law is applicable and having regard to the march of Hindu Law from time to time with particular reference to the
inroads made on personal law of Hindus by legislation. It has to be stated at the outset that certain doctrines of Hindu Law though seemingly
inconsistent with the spirit and scheme of the Income Tax Act, yet a possible reconciliation can be made when a seeming or apparent conflict arises
and find whether the intention of the Legislature when it enacted the fiscal enactment was to overlook the universal application of the accepted
doctrine under the personal law of the parties. Of course, each case has to be decided on its own merits and the age old rule that Courts lean
towards the assessee in cases of doubt has to prevail.
The institution of a joint Hindu family is peculiar to Hindu jurisprudence and has its origin in ancient orthodox texts and writings of Smritikars.
Thought it originated in the propagation of the theory of despotism and autocracy in the father, yet by efflux of time, such a concept considerably
sloped down so as to confer equal rights on his sons by birth. The induction of parceners by birth into the family considerably whittled down the
absolute power of the father. Several other inroads into such unitary rights and privileges of the father, which incursions had to be made with the
growth of society and the appreciation of the value of individual rights, resulted in the enlargement of the body constituting the joint Hindu family.
This body which is a creature of law enfolds within it the lineal male descendants of a common ancestor and includes their mothers, wives or
widows and unmarried daughters. Joint family status is ordinarily the result of birth or affiliation by adoption or marriage and need not necessarily
be linked with the possession of joint family property. All members constituting the family have no equal rights, such as the daughter or a
maintenance holder. The march of the personal law amongst Hindus has been from time to time refined by passive and provocative judicial
precedents. From ancient times, even an illegitimate son was not in any sense considered as quasi nullius filius although he did not share and had no
coparcenary right in the joint family estate. He had a recognised, though lower, status in the family of his father and he was bound to be maintained
from and out of the family estate. In fact, the principle appears to be that the disqualification is only as regards the sharing of the family estate, but it
did not involve the disqualification to be maintained out of that estate. The above principle is unexceptional in so far as Sudras are concerned. But
in the case of the twice-born, judge made law recognised such an illegitimate son of a person belonging to a twice-born class as being entitled to
maintenance which could also be made a charge on the joint family property. Such maintenance is in lieu of inheritance--See Vellaiyappa Chetty v.
Natarajan (1931)61 M.L.J. 522 : L.R. 58 IndAp 402, approved in Gur Narain Das and Another Vs. Gur Tahal Das and Others, . Though an
illegitimate son may not strictly be a coparcener in the Hindu family, yet he has undoubtedly the status of a member of such a family. There is
therefore abundant authority to hold that even an illegitimate son is a member of the family consisting of the putative father and his status as such
cannot be denied even by the twice-born class. If this is so, what would be the status of Nicolas Sundaram in the instant case? He cannot be called
an illegitimate son, because he is the son born of lawful wedlock. Marriages between a member of the twice-born community and a Christian under
the Special Marriage Act is recognised as valid in law. Therefore he is a legitimate son even veiwing it with the lynx''s eye of orthodox Hindu Law.
The assessee therefore is a lineal descendant who could claim to have the status of being a member of the joint family of which the assessee is the
head. At this stage the analogy of a Hindu widow and her rights both under the ancient texts and by virtue of the later statutory law may also be
considered so as to appreciate the status of the assessee''s son. The catena of decisions cited at the Bar, Seethamma v. Veeranna Chetty ILR
(1950) Mad. 1076 : (1950) 2 M.L.J. 21, Parappa v. Nagamma (1954) 1 M.L.J. 250 : ILR (1954) Mad. 183, Subramanian v. Kalyanarama Iyer
(1957) 1 M.L.J. 250, Ramalingam Pillai and Others Vs. Ramalakshmi Ammal and Others, , Lakshmi Ammal v. Ramachandra Reddiar (1960) 2
M.L.J. 262 : ILR (1960) Mad. 991, and Satrughan Isser Vs. Smt. Subujpari and Others, , do all afford a positive indicia as to how and in what
circumstances the widow is treated as a member of the joint family. Observed the Supreme Court in the last case:
The Act seeks to make fundamental changes in the concept of a coparcenary and the rights of members of the family in coparcenary property. The
Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes
which are alien to the structure of coparcenary. The interest of the widow arises not by inheritance, nor by survivorship, but by statutory
substitution : Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, , relied on. By the Act certain antithetical concepts are sought to be reconciled.
A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the
coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced,
there arises community of interest and unity of possession.
Even so the position of an idiot who cannot share but yet is considered as a coparcener on principle, is adumbrated in Amirthammal and Others
Vs. Vallimayil Ammal, , which is very instructive. If a person is a congenital idiot, that by itself is a disqualification for him to be a heir. But still he
has all the status of an aurasa son. He is a parcener; he has a right by birth; he can induct persons into the joint family who could have varied rights
of inheritance or succession therein.
If therefore a widow who by virtue of matrimony could be inducted into the family and can claim the status of a member thereto and indeed can
call for a partition and if an idot who is disqualified to be a sharer can yet be a coparcener and claim himself to be a member of the joint family, it
would be hyper-technical and indeed a refinement without any fineness if it is to be said that a legitimate son born out of lawful wedlock and who is
acknowledged by the father to be a Hindu, and who has rights of succession-though not under the orthodox Hindu law or under the Hindu
Succession Act to the estate of his father, cannot be terminologically ?called as a member of the family of his father.
This discussion apart, explanation (b) to Section 2 of the Hindu Succession Act, 1956, the Hindu Marriage Act, 1955, the Hindu Adoptions
and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956, whose language is in pari materia in each of the Acts, provides
as follows:
Explanation.--The following persons are Hindus....
(a)...
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu... by religion and who is brought up as a member of the tribe community,
group or family to which such parent belongs or belonged.
(Italicising is ours).
The later statutory law therefore expressly provides for the conferment of the status of a Hindu on a person even though such status is doubtful
when the personal law of the parties is invoked. All such Acts provide that the expression '' Hindu '' shall be construed as if it includes a person
who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained respectively in such
Acts. Ordinarily under the personal law, an illegitimate child would take after the religion of the mother. Particularly it is so in the case of regenerate
classes. But as already stated, if such a son of a parent belonging to a twice-born class inducts the child into the Hindu family and brings him up as
such, then the statute invests him with the status of a Hindu and recognises him as a Hindu. Mr. Balasubramanyam placed reliance upon the
decision in Myna Boyee v. Ootaram (1869) 8 M.I.A. 400. That was a case where the illegitimate children born to a woman of the Brahmin caste
through an Englishman were disentitled to claim inter se as between themselves rights of survivorship though they were considered as Hindus. This
has no application to the facts of this case. Even so, the decision in Lingappa Goundan v. Esudasan ILR (1904) Mad. 13, cited by the Revenue
where the plaintiff therein was not regarded as a Hindu by birth as his mother was a Christian has no application for the reason that the later
development of statute law recognises such a status in the child, by an overt act on the part of the father who is a Hindu, who takes him into the
fold of the family and brings him up as his son and acknowledges him as his undivided son. Incidentally it may be mentioned that even under the
Mitakshara Law, an illegitimate son is entitled to maintenance as long as he lives, in recognition of his status as a member of his father''s family and
by reason of his exclusion from inheritance even among the regenerate classes--See Mothey Anja Ratna Raja Kumar Vs. Koney Narayana Rao
and Others, . If this were so, it is not open to the Revenue to say that Nicolas Sundaram who is a legitimate son who is admittedly entitled to
statutory rights of succession under the Special Marriage Act, 1954, cannot under '' any circumstances '' be considered or deemed to have the
status of a Hindu. It is not in dispute that the assessee is a Hindu. He has during the assessment year in question claimed the status of Hindu
undivided family along with his son Nicolas Sundaram. It is imperative to understand the necessary implications in such a claim made by the
assessee. In our view, it obviously means what he says. According to the assessee, his son is in his family and obviously it also reflects his mind that
his son is being brought up by him as a Hindu. Cryptically it was contended that there was no evidence that the child was being bought up as a
Hindu within the meaning of the explanation cited above. If the assessee has taken his son into his family and has openly acknowledged him as a
member thereto by claiming the status of a joint family, it would be unreasonable to still hold that the subject required further elucidation by way of
evidence that the son is being '' brought up '' by the father as a member of the family to which the father belongs. It would be strange to insist upon
evidence aliunde. The assessee when he declared that he and his son do form members of a Hindu undivided family, has done so obviously to
preserve the solidarity of his family and indeed his religion. His lapse even if it is to be considered as one, in marrying outside the community does
not necessarily mean that he is not a Hindu and his legitimate son born of such a lawful weldock even though in his fold, under his case and
protection and brought up by him, is also not a Hindu. In fact, such a status in the son as a Hindu is preserved by the above statutory provisions.
Nicolas Sundaram, in this case, satisfies the usual normal prescribed to enable one to claim maintenance from his father , (1) existence of a
particular relationship; and (2) possession of property. Even viewing the status of Nicolas ""Sundaram from the point to view of a maintenance
holder, Section 20 of the Hindu. Adoptions and Maintenance Act, 1956, is certainly to his benefit and advantage. We have no hesitation in holding
that the son of the assessee is a Hindu and having been unequivocally declared to be a member of the Hindu undivided family of which the assessee
is the head, he ought to be deemed to be a member of the joint ?family consisting of the assessee and his son.
The Revenue however relies on Section 21 of the Special Marriage Act, 1954, and would say that such son born to the assessee could only
claim rights of succession therein, and he cannot claim any interest in the property of the assessee as a member of an undivided Hindu family. If, as
already opined by us, Nicolas Sundaram has to be considered to be a Hindu within the meaning of the statutory enactments referred to above, then
the mere fact that his rights of succession to his father''s property are concurrently provided for in a special enactment like the Special Marriage
Act, 1954, would not be a bar for him to get himself associated with his father as a member of a Hindu Joint family. In fact, a Division Bench of the
Bombay High Court in Fran is Ghosal v. Gabri Ghsoal ILR (1907) 31 Bom. 25, considering the impact of the Indian Succession Act, 1865, in
similar circumstances was of the view.
The Indian Succession Act, 1865, does not affect rights of coparcenership as between those to whom it applies. The purpose of that Act was to
amend and define the Rules of law applicable to intestate and testamentary succession. It is with the devolution of lights on intestacy that the Act
deals....
While respectfully adopting this view of the learned Judges therein, we would add that Section 21 of the Special Marriage Act, 1954, also
does not affect the question at issue. The said section states that succession to the property of a person whose marriage is solemnized under this
Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act. Such provision which
regulates the rights of success on after the lifetime of a person whose marriage is solemnized under the special Marriage Act, 1954, cannot be
deemed to affect or alter the joint family structure between an assessee and his son. The discretion vested in the Hindu father to treat his properties
as joint family properties by an over to or a covert act of his by taking into his fold his Hindu sons so as to constitute properties as joint family
properties is certainly sup erne and unexceptionable and Section 21, in our view, does not interdict such a vested discretion in a Hindu father to do
so.
Reference was made to Section 5 of the Hindu Succession Act wherein it is said that the Act does not apply to any property, succession to
which is regulated ;by the Indian Succession Act, 1925, by reason of the provisions contained in Section 21 of the Special Marriage Act, 1954.
This, however, overlooks the fact that if a Hindu father possessed of property declares that a legitimate son born to him is also a member of his
own family, that by itself does not militate against the principle of exclusion provided for in Section 5 of the Act. What Section 5 of the Hindu.
Succession Act effectively means is that as regards succession in the instant case even though the son is legitimate and can be deemed to be a
Hindu, his rights to succeed to the estate of his father, on intestacy, have to be governed by the provisions of the Special Marriage Act, 1954. But,
as already stated this would not in any way injunct a Hindu parent from treating a legitimate son of his born in lawful wedlock as per the provisions
of the Special Marriage Act, 1954, as an undivided member of the Hindu Joint family. This joint family is created by the father by an option
exercised for that purpose by himself and no sooner such option is exercised by him, there springs from it a Hindu joint family which has to be
recognised and whose legal entity has to be given effect to in accordance with the provisions of Hindu Law both traditional and statutory and a
fortiorari by the taxing statute as well.
Having thus come to the conclusion that Nicolas Sundaram belongs to the family of the assessee by reason of the treatment meted out by the
assessee and his unequivocal intention and declaration to treat him as his son and as a member of the Hindu undivided family, it is for consideration
whether the property in the hands of the assessee and at his disposal during the assessment years, was impressed with the character of ancestral
property or should it be deemed to be the property of the assessee and liable to be assessed as was done by the Revenue. Considerable light was
thrown at the Bar on this aspect and the discussion was almost full and complete. It is unnecessary for us to delve into the historical development
on the concept as we have a few decisions of the Supreme Court entirely covering the ground. Strong reliance was placed by Mr.
Balasubramaniam on Kalyanji Vithaldas v. Commissioner of Income Tax (1937) 5 ITR 90 : 64 I.A. 28 : (1937) 1 M.L.J. 312, which disapproved
the ratio of the Bombay High Court in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, , It is very significant that the Supreme
Court in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, expressly approved the decision of the Bombay High Court in
The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, and observed:
Property of a joint family, therefore, does not cease to belong to the family merely because the family is represented by a single coparcener who
possesses tights which an owner of property may possess. In the case in hand the property which yielded the income originally belonged to a
Hindu undivided family. On the death of Buddappa, the family which included a widow and females born in the family was represented by
Buddanna alone, "" but the property still continued to belong to that undivided family and income received therefrom was taxable as income of the
Hindu undivided family.
On the salient question whether there should be more than one male member to form a Hindu undivided family as a tax unit under the taxing
Statutes, the Court said:
The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression
Hindu undivided family "" in the Income Tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus.
Under Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and apparently the Income
Tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members.
In the case under review the assessee acquired the property at a partition. During the accounting years relevant to the assessment years, a
lineal descendant of his, has come into existence. He is a Hindu. Notwithstanding the collateral statutory rights of succession guaranteed to the
minor son u/s 21 of the Special Marriage Act, 1954, he does not cease to be a member of the joint family. We have held him to be such a
member. If this has to be accepted, as it ought to be there is no difficulty in rejecting the contention of the Revenue that the instant case is only
reflective of facts where there is only a sole surviving coparcener and none else. In fact, the Supreme Court in Gowli Buddanna Vs. Commissioner
of Income Tax, Mysore, Bangalore, , left open the question whether the Hindu undivided family may for purposes of the Income Tax Act be
treated as a taxable entity when it consist of a single member, male or female. Emphasis was apparently laid on the presence of a single member
and no more. Rightly the Revenue drew our attention to an earlier decision of the Supreme Court in the same volume in T.S. Srinivasan Vs.
Commissioner of Income Tax, Madras, , where the Court held the view that in such a case:
...Till the child was born, the income which accrued or arose to, or was received by, the appellant was his income, as no Hindu undivided family
was then in existence, and this position could not be displaced by the birth of the son, which brought into existence a Hindu undivided family.
We are of the view that the opinion expressed by the Supreme Court in the last case to the effect:
The doctrine that under Hindu Law a son conceived or in his mother''s womb is equal in many respects to a son actually in existence, in the matter
of inheritance, partition, survivor hip and the right to impeach an alienation made by his father, is not one of universal application and it applies
mainly for the purpose of determining rights to property and safeguarding such rights of the son. This doctrine does not fit in with the scheme of the
Income Tax Act, and it was not the intention of the Legislature to incorporate the special doctrine into the Act.
does not militate against the ratio in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, , as the facts in those two cases are
different. Whilst in the former case the Supreme Court was confronted with a case where the sole surviving coparcener had no son at least for a
part of the accounting year, in the latter case it was not so; particularly in the case under review the son was there during the entire year. In fact, the
claim for being assessed as a Hindu undivided family was made long after the birth of the lineal descendant. Acoptiong the ratio of the Supreme
Court in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, , we hold that the claim of the assessee to be reckoned as a
Hindu undivided family is well merited and founded and has to be accepted. In fact, under similar circumstances the Mysore High Court in
Commissioner of Wealth-tax v. Lt. Col. D.C. Basappa (1966) 51 ITR 790, the Allahabad High Court in PRATAP NARAIN Vs.
COMMISSIONER OF Income Tax, U. P., , Commissioner of Income Tax v. Bani Prasad Tandon (1968) 70 ITR 20, and the Patna High Court
in Panna Lal Rastogi Vs. Commissioner of Income Tax, , are all of the same view that the character of the property in the hands of a sole surviving
coparcener, on the induction of a lineal descendant or in the presence of a person who has to be treated as a member of the joint family, has to be
impressed with the character of joint family property.
The decision in K.R. Ramachandra Rao Vs. The Commissioner of Wealth Tax, , MUKAT BEHARILAL BHARGAVA Vs.
COMMISSIONER OF Income Tax, DELHI., , and Commissioner of Wealth Tax, Andhra Pradesh, Hyderabad Vs. N.V. Narendranath,
Masulipatnam, , relied on by the Revenue if they are intended to sustain a general proposition of law that the property in the hands of a sole
surviving coparcener, under no circumstance can be characterised as joint family property, we are afraid that they are no longer good law after the
Supreme Court has laid down a contrary tenant in unmistakable terms in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, .
No doubt K.R. Ramachandra Rao Vs. The Commissioner of Wealth Tax, , is in a line with the reasoning of the Supreme Court in Gowli
Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, , The case related to a single coparcener with no lineal descendant and no other
person either female or others entitled to claim maintenance. In the instance case, however, the facts are entirely different. The Rajasthan High
Court in MUKAT BEHARILAL BHARGAVA Vs. COMMISSIONER OF Income Tax, DELHI., , relied upon Kalyanji Vithaldas v.
Commissioner of Income Tax (1937) 5 ITR 90 : 64 I.A. 28 : (1937) 1 M.L.J. 312, the ratio in which is of doubtful value after the pronouncement
of the Privy Council in Attorney-General of Ceylon v. Arunachalam Chettiar (1958) 34 I.T.R 42 reference has been made in this case to Attorney
General of Ceylon v. Arunachalam Chettiar (1958) 34 I.T.R 42. In any event after the elucidation of the facts in Kalyanji Vithaldas v.
Commissioner of Income Tax (1937) 5 ITR 90 : 64 I.A. 28 : (1937) 1 M.L.J. 312, by Shah, J., in Gowli Buddanna Vs. Commissioner of Income
Tax, Mysore, Bangalore, , it is clear that that case concerned itself with the:
income assessed to tax which belonged separately to four out of six partners; of the remaining two it was from an ancestral source, but the fact that
each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife
and daughter.
It is not safe, therefore, to rest our conclusions on the decision reported in Kalyanji Vithaldas v. Commissioner of Income tax (1937) 5 ITR 90
: 64 I.A. 28 : (1937) 1 M.L.J. 312. With great respect to the learned Judges who decided Commissioner of Wealth Tax, Andhra Pradesh,
Hyderabad Vs. N.V. Narendranath, Masulipatnam, , we are bound to say that the principle laid down therein is opposed to that set in Gowli
Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, ,
Even the dicta in T. S. Srinivasan v. Commissioner of Income Tax (1956) 60 ITR 36 : (1966) 11. T.J. 1, and that in Gowli Buddanna Vs.
Commissioner of Income Tax, Mysore, Bangalore, , are reconcilable. Though one may gain the impression that the principle excerpted above and
contained in T. S. Srinivasan v. Commissioner of Income Tax (1956) 60 ITR 36 : (1966) 11. T.J. 1, eliminates the application of the Hindu law
doctrine which concedes the right of a son in the womb of the mother being equal in many respects to a son actually in existence, it was stated so in
the peculiar facts of that case where there was no lineal descendant upto a particular point of time doing the accounting year, doing which the
Department rightly treated the assessee therein as an individual. In the later decision of the Supreme Court in Gowli Buddanna Vs. Commissioner
of Income Tax, Mysore, Bangalore, , the true content of the doctrine has. been brought out and stated succinctly thus:
...Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and the Income Tax
Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members.
In the case under consideration, Nicolas Sundaram has to be treated as a male lineal descendant of the assessee. Even otherwise, as a son
who should at least be maintained by the assessee, his claim to be engrafted into the joint family as its member cannot be lightly brushed aside.
Taxing statutes ought not to be astutely considered so as to ignore physical facts and literally be strained against the assessee. Fiscal statutes have
to be interpreted for the benefit of the assessee, if. Courts are confronted with any doubt regarding its strict application.
The Tribunal therefore was in error in holding that there was no Hindu undivided family of Sridharan and his son whereby the assessee could
claim to be assessed and taxed as such either under the Income Tax Act, Wealth-tax Act or the Expenditure-tax Act. We therefore answer the
question in the affirmative and in favour of the assessee with costs. Counsel''s Rs. 250.