Narayan Chandra Deo Dhabal Deb vs Commissioner of Agricultural Income Tax

P.B. Mukharji, J.—This is a Reference under the Bengal Agricultural income tax Act. It concerns the impartible estate of Dhalbhum Raj governed by the Mitakshara school of Hindu Law.

There are four Reference applications u/s 63(1) of this Statute made by the Assessee requiring the Tribunal to refer certain questions. All these four appeals before the Tribunal are based on the same question of facts and the questions asked to be referred to this. Court were common for all these years which were assessment year 1949-50, assessment year 1952-53, assessment year 1953-54 and assessment year 1954-55. All these applications were disposed of by a common order of the Tribunal.

The Assessee asked for Reference on three questions. Two have been referred by the Tribunal for an answer by this Court. The two questions on which Reference has been made are as follows:

(i) Whether in the facts and circumstances of the case the leases executed by Raja Jagadish Chandra Deo Dhabal Deb in favour of his minor sons were void?

(ii) If the answer to question No. 1 be in the negative whether the agricultural income from the lands under the leases executed by Raja Jagadish Chandra Deo Dhabal Deb in favour of his minor sons was assessable in the hands of the Raja, u/s 12(a)(ii) of the Bengal Agricultural income tax Act, in the assessments of his income for the assessment years 1949-50, 1952-53, 1953-54 and 1954-55 under the Act?

The question that was not referred to by the Tribunal but asked for by the Assessee was as follows:

Whether on the facts and circumstances of the case, the principle of res judicata is applicable in the case in that the Tribunal by its judgment, dated July 29, 1962, in Assessee''s own case No. 45 of 1951-52, on the same set of facts and evidences held the settlement of land by way of lease executed by the Assessee in favour of five minor sons, mother acting as natural guardian, to be valid transfer and against adequate consideration, the settlement being in the nature of maintenance grants to the junior members of an impartible estate and income from land covered by these deeds should be treated as the properties of the sons.

Although the matter of res judicata expressly arose on the records and proceedings in this case and the Appellate Assistant Commissioner in hearing the appeal from the income tax Officer referred in detail to such judgment of the Tribunal in appeal No. 45 of 1951-52 and agreed with the view taken by the Tribunal in that judgment and held in favour of the validity of the lease or rather settlements made by the Raja in favour of his minor sons and although the Tribunal was sitting in appeal over that judgment of the Appellate Assistant Commissioner and setting it aside, the Tribunal never even mentioned the fact that there was a previous Tribunal of co-ordinate authority and appropriately constituted legal Tribunal under the Act coming to a totally different finding of fact and law on the very same deeds between the same parties.

All that the present Tribunal does is not to notice the previous Tribunal''s judgment between the same parties, on the same documents and on the same set of facts, but disposes of the appeal without any reference to such pre-existing judgment of the Tribunal and coming to the opposite conclusion in the present case. In those circumstances, the Tribunal rejected the Assessee''s application for Reference of question of res judicata by saying that the matter of res judicata did not arise out of the order of the Tribunal within the meaning of that expression u/s 63 of the Bengal Agricultural income tax Act.

We are bound to come to the conclusion that this view of the Tribunal was not correct because it was a question which did arise out of the order of the Tribunal having regard to the interpretation of that expression ''arising out of the order'' given by the Supreme Court on a cognate section of the income tax Act with a similar expression in Commissioner of Income Tax, Bombay Vs. Scindia Steam Navigation Co. Ltd., . There the Supreme Court lays down the principle that the High Court has jurisdiction to entertain the Assessee''s contention raised for the first time before it that the fourth proviso to Section 10(2)(vii) did not apply to the assessment because the contention was within the scope of the question as framed by the Appellate Tribunal and was really implicit there, in. It was pointed out by Shah J. that as the question whether the fourth proviso to Section 10(2)(vii) of the income tax Ad was applicable to the amount sought to be assessed as the company Assessee''s income was a question ''arising out of the order'' of the Tribunal and the High Court had jurisdiction to decide the question even if it was not raised and argued before the Tribunal.

The expression ''arising out of the order'' should now be examined in the light of the principle so laid down by the Supreme Court. Shah, J. makes it clear that:

I see no reason to confine the jurisdiction of this Court to such questions of law as have been argued before the Tribunal or, are dealt with by the Tribunal. The section does not say so and there is no reason why we should construe the expression ''arising out of such order'' in a manner unwarranted by the ordinary grammatical, construction.--Para 618 of the report quoting the observations of Chagla C.J. in MADANLAL DHARNIDHARKA Vs. COMMISSIONER OF Income Tax, BOMBAY CITY., . Here also it is clear from the very order of the Appellate Assistant Commissioner over which the Tribunal was sitting in appeal. The Appellate Assistant Commissioner expressly and in detail drew the attention to the previous judgment of a previous Tribunal in the previous Appeal No. 45 of 1951-52 relating to the assessment year 1950-51 dealing with the very same set of documents and their interpretation and the very same parties and with the same legal and factual incidents. The expression ''arising out of the order'' does not mean that the point has to be expressly stated in the order of the Tribunal. It covers a point which was before the Tribunal and which the Tribunal either ignored or refused to consider without stating its refusal on its order. It certainly covers a point which is implicit in the very order of the Tribunal, even though it is not explicit.

The facts are simple. Raja Jagadish Chandra Dhabal Deb since deceased was the owner of an impartible estate. He executed five documents in favour of his minor sons in December 1940 in lieu of maintenance payable by him or by his estate to these minor sons. The lands are admittedly agricultural lands. The income from these lands covered by these documents is agricultural income. The Agricultural income tax Officer included the agricultural income from these lands in the assessment of the Raja. He bypassed the Appellate Tribunal''s decision in Appeal No. 45 of 1951-52 by talking of ''a significant aspect'' not; being present before that Appellate Tribunal, without staging what was that significant aspect. In fact there is no significant aspect at all and there is ho difference either in fact or in law. The income tax Officer also held the view that the holder of impartible Mitakshara estate was liable for maintenance of his junior sons and therefore, there was really no consideration for this transfer.

The Assessees appealed from that decision to the Appellate Assistant Commissioner. He followed the previous decision of the previous Appellate Tribunal in Appeal No. 45 of 1951-52 and held that the income from these lands under these documents was the income not of the Raja but of the sons. He found the following facts which are not in dispute at all. The land settled with mokarari raiyati interest was in favors of the five minor sons of the Raja. Secondly, he also found that the sons were entitled by custom to maintenance out of the impartible estate. He also found that the family was governed by Mitakshara school of Hindu Law. He further found that the law of primogeniture prevailed in this estate. He construed the documents by saying that the Raja discharged his legal obligation to pay maintenance by setting to the junior members lands with mokarari raiyati interest and reserving a very low nominal annual rent payable in each case to the estate. A further fact found by the Appellate Assistant Commissioner is that these documents were acted upon and there was no dispute whatever that they were not acted upon. He followed the reasons of the previous judgment of the previous Appellate Tribunal and held that the maintenance grant was known as babuana grant which was an inseparable or usual incident of the impartible estate and the grant was for adequate consideration.

The two points raised by the Department in appeals were (i) the documents were void in the facts and circumstances of the case and (ii) in any event the documents being not for adequate consideration, the provisions of Section 12(a)(ii) of the Bengal Agricultural income tax Act were attracted and the agricultural income from Such lands was, therefore, liable to be assessed in the hands of the Raja. The Department after having lost before the Appellate Assistant Commissioner appealed to the Tribunal who gave its decision in favour of the Department on both the above points.

The decision of the Tribunal gave the following reasons. The documents in question are leases in favour of a minor and therefore, are void on the ground that No. duty or obligation could be imposed on a minor when the contract is entered into on his behalf by a guardian. The Tribunal relied on the decision of Sew Sankar Lal Vs. Bejoy Krishna and Another, where a Division Bench of this Court expressed the view:

A contract of lease, which is not for the benefit of the minor''s existing estate, entered into by a guardian on behalf of a minor is, however, invalid in law.

In order to apply that principle the Tribunal expressed the view that the lease or the document in question was not for the benefit of the minor''s existing estate. The second point on Which the Tribunal based its reasons is that the document in question is void because of absence of consideration. The Tribunal expressed the view:

It was argued that the consideration for lease is maintenance. We do not think so. First of all, the liability to maintain is an existing duty on the part of the lessor. He is already under an obligation to maintain the sons who are junior members when he executed the lease. When the junior members entered into the contract, they did not get any new benefit. It is well-settled that an existing situation is no consideration for a fresh contract.

The Tribunal proceeds to add:

Under the circumstances this maintenance is no consideration for the lease. It has been stated in the leases that the lessor is executing the lease in order to maintain junior members. Thus the motive for executing the lease is to discharge the duty of maintaining them. So maintenance is not a consideration but the motive. It is different from consideration. As maintenance is not the consideration for the lease the rent fixed therein is the consideration.

It is against this decision of the Tribunal that the present Reference has been made.

Before proceeding to discuss the order of the Tribunal, the reasons given by the Tribunal as quoted above and the answers to the questions referred to this Court it will be useful to have a look at the documents. The documents consist of in each case a patta and a kabuliyat. The patta is a document executed in favour of the minor sons represented by the mother as the guardian and is executed by the Raja, the father himself. The annual rent reserved is a nominal rent, e.g. for such large areas as 181.13 acres of land with an annual rental of Rs. 223-12 including cess. The patta is not executed by the minor or by the guardian but by the father, the settlor. The patta recites the mokarari raiyati rights. Secondly; it recites:

According to the age old custom of our family the eldest son gets the property left by the father and the other sons according to their status in the family get maintenance.

It proceeds to say:

And I for the maintenance of the family status consider it proper and consistent with the practice to give you sufficient property out of both the aforesaid estates.

The properties are given expressly for ''maintenance''. They are expressly given for cultivation. It is expressly stated in the patta that the owner shall continue to enjoy and possess the lands

with great pleasure, down to sons, sons'' sons and so on and heirs, by paying the aforesaid rent fixed, with rights of sale, gift etc. and all kinds of alienation, by becoming the malik (owner) thereof. There shall never be any increase or decrease of the aforesaid rent.

The failure to pay rent would not be visited by eviction or ejectment. It only meant by the express statement in the patta this--

If you fail to pay any instalment you shall remain bound to pay interest (thereon) according to law.

The most significant term or statement in the patta, is as follows:

I fix the rent for the said jote at a reduced rate, so that by cultivating the aforesaid lands, by using water of the tank and embankments for that purpose, by growing fish etc. in the said tank and embankments and by using the same, as you please, you may maintain yourself partially with yields thereof and receive more by way of usufruct from the aforesaid properties. You shall possess the aforesaid properties for the period as stipulated by law and shall gain possessory rights apart from mokarari rights and you now get in the aforesaid two jotes all sorts of rights of a mokarari raiyat as also of an occupancy raiyat.

The other document is the kabuliyat. It is a document executed in favour of the Raja by the mother acting as a guardian of the minor. In this kabuliyat the patta is mentioned and the rent and its other clauses and after that the kabuliyat proceeds to say:

I accept the same, I shall continue to enjoy and possess the aforesaid lands, with great pleasure, down to sons, sons'' sons and so on and heirs, by paying the aforesaid rent fixed, with rights of sale, gift etc. and all kinds of alienation by becoming the malik (owner) thereof.

The kabuliyat also agrees to pay the rent and provides that in case of failure interest will be paid. It also states that the rent is nominal and more will be had by way of usufructs for the maintenance.

A perusal of the patta and the kabuliyat will show that this is the famous babuana grant fortified by a longstanding custom by which the holder of an impartible estate transfers lands to his minor sons for their maintenance. From ancient times, these babuana grants have been in vogue and many decisions of Courts including those of the Privy Council have acknowledged and judicially recognised such grants and custom. Although there is a liability to pay rent, it is unquestionable and an admitted fact that the rent is so reduced that the usufruct of the land is much larger than the rent payable so that the usufruct is sufficient to maintain the junior members in proper status. Instead of alienating the impartible estate the holder of the impartible estate makes these arrangements for the maintenance of the junior members of his family. It is a misnomer to call this arrangement a lease for the beneficiary is expressly described in such documents as having a permanent right, an occupancy right, a mokarari right, a heritable right and expressly described as a malik or owner and not a lessee or tenant for life. An appropriate assessment and interpretation of these two documents lead only to one conclusion that they are more or less and in fact and substance, settlements in favour of miner or junior members of the family of the holder of the impartible estate. That is a conclusion borne out by the context and the text of the documents as well as by custom recognised by highest judicial decisions. But for the fact that a nominal or very reduced rent is reserved, it may very well be taken as gifts to the junior members.

The first reason of the Tribunal that this arrangement represented by these documents is not for the benefit of the minor is entirely erroneous. The documents are pre-eminently and primarily, if not wholly, for the benefit of the minor.

To be a malik of extensive lands by paying a nominal or very reduced rent, with power to alienate, sell and gift and to maintain out of the usufruct are the obvious benefits. The obligation to pay rent is only in name and it is not a burden because admittedly the usufruct is very much more as expressly stated in the documents themselves. A guardian acting on behalf of a minor can enter into a contract which is for the benefit of the minor. The decision in Sew Sankar Lal v. Bijoy Krishna Supra following the well-known decisions in Hunooman Persaud Pandey v. Musst. Babooee 6 Moo. I.A. 393, Waghela Rajsanji v. Masludin 14 I.A. 89, Indur Chunder Singh v. Radha Kishore Ghosh 19 I.A. 90, Mohori Bibi v. Dharmodas Ghose 30 I.A. 114 and AIR 1949 218 (Federal Court) expressly said that a contract of lease which was not for the benefit of the minor''s existing estate entered into by a guardian on behalf of a minor was invalid. That means that a contract by a guardian which was for the benefit of the minor is valid in law.

Mr. D.N. Das appearing on behalf of the Revenue contends that the Raja in this case as the holder of the impartible estate was already under a legal obligation by custom to maintain the junior members of his family. Therefore, this transfer was not a consideration. In support of his argument he relies on the 22nd paper-bock edition (p. 96) of Anson''s Principle of English Law of Contract whereat the proposition is put in this form:

If the promisor gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal. This may occur where the promisee is already under an existing duty to do that which he promises to do.

He, therefore, argues that the consideration in these documents is unreal and what the Raja was doing he was only discharging existing liability to maintain his junior sons.

We are afraid that this argument cannot be accepted. u/s 2(d) of the Contract Act in India it is said, when at the desire pf the promisor the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such an act or abstinence or promise is called a consideration for the promise. Now, it is not correct to say that what the holder of the impartible estate the Raja was doing in this case was to discharge an existing legal liability only. He was doing very much more. The, minor, for whose benefit this transfer was being made, was also getting very much more than what he was legally entitled to have. Let us examine the position a little more closely. No doubt there was a legal duty on the part of the holder to maintain his junior sons. But that legal duty was no more than that. It did not cast upon him any obligation legal or otherwise, to transfer and allocate specific properties and lands of his estate in favour of individual junior sons. Nor were such individual junior sons entitled to any specific land or lands in the estate. The law governing impartible estate in Dhalbhum in the district of Midnapore, with which we are concerned in this Reference, has been settled clearly to say that the right of the junior sons or members of the holder''s family are really two, (i) right to succeed in particular circumstances and (ii) right to maintenance. But it is recognised and well-settled beyond controversy by a series of judicial decisions that the junior members have no right to partition the impartible estate or to claim any particular property as his own out of such estate. Therefore, when this transfer by these documents was made by the holder in favour of the junior sons, it did more than discharging an existing obligation. The manner and method of discharging an obligation are good enough lawful considerations in law., For instance, X may be owing to Y, a particular sum of money simpliciter. That will not mean that X cannot enter into an arrangement of either charging or leasing or mortgaging or entering into any other arrangement in respect of his land as a mode or manner of discharging that obligation. The legal liability for the debt simpliciter will not be bad consideration in such circumstances for such transfer for the consideration is the new scheme of arrangement for the payment of the debt. Denning L.J. in Ward v. Byham (1956) 1 W.L.R. 496 (498) observed as follows:

I approach the case, therefore, on the footing that the mother, in looking after the child is only doing what she is legally bound to do. Even so, I think that there was sufficient contract to support the promise. I have always, thought that a promise to perform an existing duty or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given.

The argument advanced by Mr. D.N. Das for the Revenue can also be examined from another point of view. The Revenue in this case wants to avoid the transfer on the language of Section 12(a)(ii) of the Bengal Agricultural income tax Act, 1944, which uses similar language in Section 16(3)(a)(iii) and (iv) of the income tax Act. Now Section 12(a)(ii) of the Bengal Agricultural income tax Act, inter alia, says this:

In computing the total agricultural income of any individual for the purpose of assessment there shall be included so much of the total agricultural income of a minor child of such individual as arises directly or indirectly from the assets transferred directly or indirectly to the minor child, not being a married daughter by such individual otherwise than for adequate consideration.

In order to include within the meaning of Section 12(a)(ii) of the Bengal Agricultural income tax Act the income must not be income from a transfer of assets to the minor child for adequate consideration. If the transfer be for adequate consideration then the income is not the income of the father but of the child. The section, therefore, itself contemplates and provides that such transfers can lawfully and validly be made, by the father to his minor child. The question then is that it has to be for ''adequate consideration''. What is ''adequate consideration''? The law as settled by judicial decisions is that natural love or affection is not adequate for the purpose of ''consideration'' under this section. In order to be adequate it has to be some monetary or other consideration other than love or affection. The question, therefore, in this case is to find out whether there is monetary and such other consideration apart from natural love or affection. We hold that there is. It is essential to bear in mind in this context that every father is under a legal duty to maintain his minor child. But what he is not legally obliged to do is to transfer his properties to discharge that obligation to maintain and the child cannot compel him to make that transfer. Here the consideration was that the minor child was taking the transfer in lieu of his maintenance. He was getting specific properties forever with all rights of alienation, a benefit which he was not otherwise entitled in an impartible estate under the law, nor was it an obligation by the holder of the Raj to provide such properties for his minor sons maintenance. These, therefore, are adequate considerations apart from natural love or affection which satisfy the requirement-for ''adequate consideration'' u/s 12(a)(ii) of the Bengal Agricultural income tax Act to qualify for the exclusion of this income from the income of the Assessee Raja.

It was then contended by Mr. D.N. Das for the Revenue that these considerations were nominal and not adequate. The rent which was part of the consideration was so nominal that it cannot be called as adequate having regard to the nature of the property, the nature of its usufruct and the size, of the land transferred. No doubt that is so. But the rent is not the real consideration at all. The very purpose of the transfer was to leave enough usufruct for the maintenance of the child that the transfer was made. But so long as it is established that there was consideration other than natural love or affection, then the legal problem of adequacy of consideration assumes an entirely different aspect. There in that event the Courts have to be cautious. No doubt adequate consideration means money and objective consideration and not natural love or affection or emotion. But what is or is not adequate is a question which should normally be deferred to the parties concerned, unless of course the transaction is tainted by shockingly disproportionate consideration as to amount to fraud or evasion. The law on this, point was stated by Black Burn J) in Bolton v. Madden L.R. 9 Q.B. 55 (57) where the learned Judge made his celebrated observation and followed in numerous decisions thereafter:

The general rule is, that an executory agreement, by which the Plaintiff agrees to do something on the terms that the Defendant agrees to do something else, may be enforced, if what the Plaintiff has agreed to do is ''either for the benefit of the Defendant or to the trouble or prejudice of the Plaintiff'' : See Com. Dig. Action on the case in assumpsit B.I. If it be either, the adequacy of the consideration is for the parties to consider at the time of making the agreement, not for the Court when it is sought to be enforced.

To accept Mr. D.N. Das''s argument in this case for the Revenue that the transfer should have been at the highest rack rent in order to satisfy the requirement of an ''adequate consideration''--that would really be most self-contradictory for the Revenue authorities themselves. In one breath they are saying that this consideration is not for the benefit of the minor in which case to exact rack rent from the minor would certainly be not for the benefit but extremely prejudicial and hard for the minor. In the other breath to exhaust all possible rent from out of these lands would leave no residual amount for the maintenance of the minor child which was the very consideration for the transfer and that would not have served to maintain the minor child.

This will be a convenient stage to notice some of the more important decisions cited at the Bar. Reliance was placed on behalf of the Revenue on the decision of the Patna High Court in Kali Prasad Singh Vs. Commr. of Income Tax, where the Assessee out of natural love and affection created a permanent mokarari lease in favour of his wife at a fixed annual rent and under the Deed in that case the Assessee''s wife had the right to possess and enjoy the usufruct of the lands, to realise the income and profits of the property and to sell and make gifts of the lands. It was held by the Patna High Court that the mokarari lease was a transfer of assets within the meaning of Section 16(3)(a)(iii) of the income tax Act and therefore, the income derived by the wife was liable to be included in the income of the Assessee. The case has no application to the facts before us. That was a case where only natural love and affection for the wife were the only consideration. Nor did the Deed in that case say that it was in lieu of the maintenance of the wife. This was also a case of the holder of the impartible estate of Jharia Raj and related to the Jharia Hat. That case really turned upon the question whether a lease was a transfer or not and naturally it was held that it was a transfer. If was also held in that case by the Tribunal that the transaction there was not only hit by Section 16(3)(a)(iii) of the income tax Act but there was also no adequate consideration the consideration being only natural love and affection. Another Patna decision was relied on by Mr. D.N. Das for the Revenue in RAI BAHADUR H. P. BANERJEE Vs. COMMISSIONER OF Income Tax, BHIAR and ORISSA., : See observations of Harris C.J. (p. 148) and Manohar Lall J. (p. 154). All that this case decided was that natural love and affection'' is not consideration in the eye of the income tax law within the meaning of Section 16(3)(a){iii) of the income tax Act and that the words ''adequate consideration'' used there do not mean good consideration. In fact, all this is settled law especially after the decision of the Supreme Court in Tulsidas Kilachand Vs. The Commissioner of Income Tax, Bombay City I, (6) where Hidayatullah J., construed the words ''adequate consideration'' to denote consideration other than mere love and affection. Indeed the learned Judge observed:

When the law insists that there should be adequate consideration and not good consideration, it excludes mere love and affection. They may be good consideration to support a contract; but adequate consideration to avoid tax is quite a different thing.

Here we have come to the conclusion that the consideration was not mere love and affection but a discharge of a legal obligation to maintain the junior sons and that was discharged by this transfer on the present, Reference. After the Supreme Court decision it is no longer necessary to refer to the Madras High Court decision in N. K. R. Narayanaswamy Naidu Vs. Commissioner of Agricultural Income Tax, Madras, taking the same view that adequate consideration is not natural love and affection. In the Madras case there was no rent also and it was a transfer by way of gift. A transfer by way of gift could not, therefore, be for ''adequate consideration'' within the meaning of Section 12(a)(ii) of the Bengal Agricultural income tax Act.

The decisions in Promila v. Jogeswar 3 Pat. L.J. 518 and Govinda Kurup v. Beekku 59 Mad. L.J. 941 holding that lease to a minor is void on the ground that it contains an obligation to pay rent by the minor follow the well-known principle discussed above and the Privy Council decisions quoted above. But the fact here is that to call and interpret the present transfers as ''leases'' is really to indulge in a misnomer as we have pointed out. These are not leases but habuana grants and settlements. Besides, these are agricultural leases and are not governed by the Transfer of Property Act, Section 117, of which Act expressly excludes the chapter on Leases of Immoveable Property covered by Sections 105 to 116 of the Transfer of Property Act. An agricultural lease, therefore, may be made orally. Here it represents babuana custom, no doubt put in writing. The lands in question on this Reference are governed by the Bengal Tenancy Act. Besides it is an admitted fact in the present case that these pattas and kabuliyats have been acted upon and there has been part performance, which is consistent with long course of custom and tradition sanctified and upheld by the judicial decisions.

On the nature of this impartible estate and this custom of babuana grant we shall notice some of the decisions cited a the Bar. In Raja Rama Rao v. Raja of Pittapur 45 I.A. 148 (152) the Privy Council lays down that an impartible zamindary is the creature of custom and it is of its essence that no coparcenery in it exists and apart, therefore, from custom and relationship to the holder, the, junior members of the family have no right to maintenance out of it. It is this decision of the Privy Council which makes the observation that a custom entitling the sons of the holder to maintenance has so often been judicially recognised that it is not necessary to prove it in each case. In Shiba Prosad Singh v. Rani Prayag Kumari Debi 59 I.A. 331 Sir Dinshaw Mulla, delivering the judgment of the Privy Council, lays down the law that the right of survivorship is not inconsistent with a custom of impartibility and it applies to the devolution of an impartible estate in a Mitakshara joint family. This was really an authority also for the proposition that in order to establish that the family had ceased to be joint it is necessary to prove an intention, express or implied, on the part of the junior members to renounce their right of succession and it is not sufficient to show a separation only in food and worship. This was a case from the adjoining district of Manbhum and related to the impartible estate of Jharia. Again in Baijnath Prosad Singh v. Tejmali Singh (1963) ITR 195 the Privy Council expresses the view that the successor to an ancestral impartible estate in a joint Hindu family governed by the Mitakshara is designated by survivorship although he would hold the estate according to the custom of the impartibility and consequently the eldest member of the senior branch succeeds in preference to the direct senior lineal descendant of the common ancestor if the latter is more remote in degree.

Lord Dunedin makes the observations in connection with Saraj Kuari''s case (15 I.A. 51):

Now what was decided was that in an impartible Raj there was no restriction on the power of alienation by the member of the family who was on the gaddi and was in possession, in respect that there was no such right of co-ownership in the other members as to give them a title to prevent such alienation. The right of the other members that was being considered was a presently existing right--Page 211 of the report.

The Privy Council''s decision in Protap Chandra Deo v. Jagadish Chandra Deo 54 I.A. 289 (295) is interesting because it deals with this very impartible estate with which we are concerned, namely the Dhalbhum Raj in the districts of Singbhum and Midnupore. Here the Privy Council was laying down the law that the holder of impartible zamindary could be alienated by will although the family was undivided, unless a family custom precluded him from doing so. Lord Warrington delivering judgment of the Privy Council on this case records the fact that:

The family is joint and undivided one, governed by the Mitakshara school of Hindu Law. The estate is ancestral and succession to it is governed by a family custom according to the rules of lineal primogeniture. The Raj is impartible.

The Privy Council case in Komammal v. Annadana Jadaya Gounder 55 I.A. 114 was more concerned with succession and supersession of the senior Raj and such other questions as extinction of the junior Raj and separation, consideration not relevant for the present purposes of this Reference.

In a more recent decision the Privy Council has made further observation in Commissioner of income tax, Punjab v. Dewan Bahadur Dewan Krishna Kishore 68 I.A. 155 and in Raja Volugoti v. Raja Rajeswara Rao 68 I.A. 181. Sir John Rankin delivering judgment of the Privy Council in Raja Volugoti''s case Supra, pp. 187, 188 observes as follows:

The interesting question which remains is whether the Respondents are entitled to maintenance from the impartible estate on the ground that it is the prima facie, right at law of all junior male members of the family to be maintained out of impartible estate which is family and not separate property. The answer made by the Appellant to this claim is that junior male members have no such right save by custom and that, apart altogether from any question of legitimacy, the Respondents not being sons or brothers of any holder of the, impartible estate can succeed only by proving a special custom, which they have failed to do. For this view of the law the Appellant relies upon a line of the decisions,--the second Pittapur case 45 Indian Appeals 148 the 24 CWN 226 (Privy Council) , Baijnath''s case 48 Indian Appeal 195, the Dhalbhum case 54 Indian Appeal 289 and Shiba Prasad Singh''s case 59. Indian Appeal 831. The Respondent''s reply is that this line of decision was abandoned or deflected by the judgment of the Board in the Gorakhpur case 61 Indian Appeal 286 which, as they contend, established the right to maintenance as belonging to all junior male members of the family by virtue of their interest as co-owners. This interesting and difficult question has recently been determined by the Board in the Commissioner of income tax v. Dewan Bahadur Dewan Krishna Kishore 68 Indian Appeal 155.

The many observations of the Privy Council in these cases blurred the legal picture and finally the Privy Council again considered some of these cases in Anant Bhikappa Patil v. Shankar. Ramchandra Patil 70 I.A. 232 (243) where Sir John Rankin again emphasised the point by observing that--

Now an impartible estate is not held in coparcenary Sartaj Kuari v. Deoraj Kuari 15 Indian Appeal 51 though it may be joint family property. It may devolve as joint family property or as separate property of the last male owner. In the former case it goes by survivorship, to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by special custom, e.g. lineal male primogenature. In the latter case jointness and survivorship are not as such in point the estate devolves by inheritance from the last male owner in the order prescribed by special custom or according to the ordinary law of inheritance as modified by the custom.

Reviewing all these decisions the learned editor of the 11th edition of Mayne''s Hindu Law (p. 857) summarises the position by stating:

The rights to maintenance of junior members of a family holding an impartible estate are now finally settled.

The learned editor of the 8th edition of Golap Chandra Shastri''s Hindu Law summarises the position (pp. 740, 741) in this way:

On consideration of various cases the Privy Council has explained the law as to jointness regarding its 4 incidents thus : The impartibility is essentially a creature, of custom. In the case of ordinary joint family property, the members of, the family have (1) the right of partition (2) right to restrain, alienations by the head of the family except for necessity, (3) the right of maintenance and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in the Sartaj Kuar''s'' case and the first Pittapur case (26 Indian Appeal 83) and so also the third as held in the second Pittapur case (45 Indian Appeal 148). To this extent the general law of Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidence of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains and this is what was held in Baijnath''s case in 48 Indian Appeal 195. 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.

The result of these decisions is that the sons of the present holder of an impartible estate had not acquired right by birth and cannot demand partition nor question the alienation of the estate by the holder, but the birth right of the senior member to take by survivorship exists and that in a Mitakshara family there is coparcenary between the holder and other members to this extent that survivorship is not inconsistent with impartibility in order to determine the succession. The senior member''s right to take by survivorship is not a mere spes succession is but is capable of being renounced and surrendered as laid down in Collector of Gorakhpur v. Ram Sundar Mal 61 Indian Appeal 286.

The learned editor of 13th edition of Mulla''s Hindu Law (pp. 569-70) presents the legal position in the following terms:

No coparcener has any present rights in an impartible estate. Apart, therefore, from custom and relationship to the holder the junior members of the family have no right to maintenance out of such estate. The Judicial Committee has recently held that the illegitimate sons of a junior member are not, under the law, entitled to maintenance. In the particular case the claim was also based on a deed of maintenance.... Where an impartible estate is held as ancestral or joint family property, the sons of the holder thereof are/entitled, by custom, to maintenance out of the estate. This custom has so often been judicially recognised that it is not necessary to prove it in each case. But where the impartible property is the self-acquired property of the holder, his son is not entitled to maintenance out of it.

The babuana grants which are represented by the transactions in the present Reference before us are recognised by the Privy. Council and by numerous other judicial decisions to be grants of land to the junior members of an impartible estate. See the observations of the Privy Council, in Durga Datta v. Rameswar. 36 I.A. 176 and it is also judicially recognised that the holders of the grant are liable to pay the revenue and cess to the Raj as in the cases like Hitendra v. Rameswar (1914) 18 C.W.N. 42. See also the discussions of the law in the 8th edition of Golap Shastri''s Hindu Law (pp. 745-47).

In that context we cannot conclude that these settlements represented by the patta and kabuliyat in the present Reference ate bad on the ground and for the reasons given by the Tribunal. The nature of the estate, its impartible character, its law of primogeniture, the custom for maintenance for the junior members all prove and establish that the transfers in this case were to the minor child for adequate consideration within the meaning of Section 12(a)(ii) of the Bengal Agricultural income tax Act. In Stree Rajah Yenumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 13 Moo. I.A. 333 (340) the observations of Sir James William Colvile make it clear:

These grants by way of maintenance are in the ordinary course of what is done by a person in the enjoyment of a Raj, or impartible estate, in favour of the junior members of the family; who, but for the impartiality of the estate, would be coparceners with him.

Again in the case of Collector of Gorakhpur v. Ram Sundar Mal 61 I.A. 286 (304) Lord Balanesburgh notices these babuana grants with these observations:

As was pointed out in Baijnath Prasad Singh''s case, before the Allahabad High Court (I.L.R. 38 All Q. 590 ) the junior members of a great zamindari enjoy a high degree of consideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family and until the decision above referred to beginning in 1888 supervened, they had no reason to believe that their rights of succession were ''being imperiled by their estrangement from the zemindar in possession. Great caution must therefore be exercised in attributing airy special consequences to conduct only significant in the light of these decisions now explained.

Therefore, in our view it would be highly incautious and not legally justifiable to upset these babuana grants, as void.

34 It is, therefore, clear that the present settlements in favour of the minor sons as represented by the pattas and kabuliyats do not rest on any theory of natural love and affection but are grants in lieu of maintenance popularly known as babuana grants which have now become an inseparable incident of impartible estate sanctified by custom and recognised by judicial decisions and they, therefore, furnish adequate consideration within the meaning of Section 12(a)(ii) of the Bengal Agricultural income tax Act.

It remains to emphasize that the minors do not in the present case sign the kabuliat, but it is the mother acting as a guardian for them who does it. As already indicated, a contract by a guardian for the benefit of the estate of the minor binds the minor. Besides, we have already pointed out that these are agricultural lands and the transfers in these cases cannot be treated as forms of English tenancy relationship. As early as in 1897, Banerjee J. in Azim Sardar and Ors. v. Ramlall Shah ILR Cal. 324 observed:

Tenancy in this country is created not only by contract but also occupation in the case of agricultural land,

a view repeated in Kali Prasanna Das and Ors. v. Bhagaban Mali 17 C.L.J. 431.

Having regard to the view that we are taking it is not necessary to pursue the point of res judicata. The latest decision of the Supreme Court in M.M. Ipoh and Others Vs. Commissioner of Income Tax, Madras, lays down that the doctrine of res judicata does not apply so as to make a decision On a question of fact or law in a proceeding for assessment in one year binding in another year. Unqualified statements that res judicata has no application whatever to assessment proceedings and which statements are often taken out of their context, may have to be reviewed in future. For instance, in this very case the same Deed was construed and the same Deed was between the same parties and it concerned the same lands. The previous Tribunal, in fact, held that two of the minor sons had attained majority, a point which is now assumed in the present Reference that they are all minors because the previous Tribunal''s decision and finding were overlooked. It will be odd indeed on the doctrine that res judicata does not apply if it is found that a major in one year, found by a previous decision, becomes a minor in a subsequent year or a document interpreted as void in one year and the same document interpreted as valid in a subsequent year. It will perhaps be necessary to draw limits to the unqualified statement of the law that the doctrine of res judicata does not apply in any circumstances, in any manner, in, any case in assessment proceedings. But we refrain from deciding that issue in the present Reference having regard to the view that we have taken.

For these reasons, we answer both the questions in the negative. In other words, we hold that these deeds or settlements are really babuana grants of settlements and are not really leases and are not void but valid and we also hold that they were for adequate consideration within the meaning of Section 12(a)(ii) of the Bengal Agricultural income tax Act so that the agricultural income from those lands in favour of the minor sons was not assessable in the hands of the grantor Raja, The Revenue will pay the costs of this Reference. Certified for two counsel.

K.L. Roy, J.

I agree.