Income Tax Appellate Tribunal - Nagpur
Nathu Sao vs Commissioner Of Income-Tax, C.P. And ... on 10 October, 1934
Equivalent citations: [1934]2ITR463(NAG)
ORDER
On the application of Seth Nathusao made under Section 66 (3) of the Income-tax Act (XI of 1922) this court by an order on 29th July, 1932 directed an issue of requisition to the Commissioner of Income Tax requiring him to state the case on 3 questions, which were as follows :-
(1) Is not be assessee who is a member of the Jain community governed by the Hindu law as to joint family? (2) Are not the assessee and his mother and widowed aunt members of an undivided family, and (3) Can adverse inference by drawn in the absence of evidence to the contrary?
In accordance with the requisition to Commissioner of Income Tax has submitted a statement of the case on the foregoing 3 questions.
2. The facts of the case are simple. The assessee is a member of Lad Vaish community and is a Jain. He claims to be governed by the Hindu law and contended that his widowed mother and widowed aunt who lived with him, constituted a Hindu joint family. The assessee was grated time to produce evidence to substantiate his contention. He having failed to do so, his contentions were negatived.
3. As to the contention involved in question (1) namely that the Jains are governed by Hindu law relating to joint family, this Court in its order dated 29-7-1932 held that the ordinary Hindu law applies to Jains in the absence of proof of custom or usage to the contrary, on the authority of a Privy Council decision reported in Chotey Lal v. Chunno Lal which was followed in Bachebi v. Makhan Lal and Amabai v. Govind. The Commissioner of Income Tax submits to the ruling of this Court on this question.
4. As to question No. 2, it is contended on behalf of the Commissioner of Income Tax that in the absence of evidence to prove that the assessees father and uncle were coparceners, it could not be inferred that the assessees mother and aunt were members of an undivided Hindu family. Throughout the proceedings it seems to have been conceded that the assessees father and uncle were coparceners. All that was contended was that the assessee and the female members of his family entitled to maintenance could not in law constitute a joint family. In fact the admission of these persons constituting a joint family is implicit in the other admission made by the Commissioner of Income Tax that the family members are entitled to maintenance. The obligation to maintain the widows of deceased coparceners arises from the fact that the surviving male member is in possession of the family property including the shares of the deceased coparceners which devolved on him by survivorship. See Bhagwansingh v. Mst. Kewal Kaur. Lately the question whether a single male member living jointly with the widows of deceased coparceners entitled to maintenance from him, constitute a joint Hindu family arose incidentally before a Special Bench of the Madras High Court, and it was answered in the affirmative, See Vedathanni v. Commissioner of Income Tax, Madras. There is a clear distinction between a coparcenary and a Hindu joint or undivided family. As noticed by Mayne in his Hindu law, page 347, para 271, a coparcenary consists of male members who are entitled to demand partition and such a coparcenary ceases to exist when by deaths among the male members the family is reduced to one sole surviving male, but the family (?) survives, even where there is only one male member left in the family burdened with the obligation to maintain the widows of the deceased coparceners. The liability to pay maintenance to the widows of the deceased members of the coparcenary is the criterion to determine whether the family is divided or undivided. Suppose there are two Hindu Brothers A and B constituting a coparcenary. It they partition, their shares, and one of them dies after the partition, the surviving member will be under no obligation to maintain the deceased brothers widow. On the other hand, if one of the brothers dies in a state of jointness with his brother, his widow will undoubtedly have the right to be maintained by the surviving brother of her husband. The capacity of any one of the widows to introduce a new member into the family by adoption also goes to show that the widows are regarded as members of the joint family. It must therefore be held that the assessee Seth Nathusao along with his widowed mother and widowed aunt constitute a Hindu undivided family. The question No. 2, must therefore be answered in the affirmative.
5. As to question No. 3, it may be broadly stated that the burden of proving the existence of joint family is on the person pleading it. In the present case, however, the Commissioner of Income Tax having admitted the fact that the widows were entitled to maintenance, the existence of coparcenary between the assessees father and uncle must be deemed to have been impliedly admitted. A fact which is admitted, needs no proof, and consequently there was no necessity for the assessee to lead any evidence.
6. The result is that the assessee succeeds and the Commissioner of Income Tax will pay his costs of these proceedings. Pleaders fee Rs. 25.
Reference answered.