Andhra HC (Pre-Telangana)
Ashok Kumar Ratanchand vs Commissioner Of Income-Tax on 27 August, 1990
Equivalent citations: [1990]186ITR475(AP)
JUDGMENT V. Sivaraman Nair, J.
1. The petitioner was a member of a Hindu undivided family consisting of his father and brothers. He had received two gifts of rupees five thousand each from his grandparents in May, 1965. He invested those amounts as deposits in the joint family business and was receiving interest on those deposits. On November 9, 1969, there was a partial partition of the Hindu undivided family resulting in each one of the coparceners being allotted Rs. 17,352. The petitioner deposited that amount also in the family business. He was receiving interest on that deposit as well. In addition thereto, he was also receiving salaries from the above business. These three items of income were subject to assessment as the individual income of the petitioner. He married on April 30, 1980. According to him, a Hindu undivided family consisting of himself as karta and his wife as member came into being on that day. For the assessment years 1981-82, 1982-83 and 1983-84, he filed two sets of returns initially. The first set claimed the status as an individual in respect of his salary income and interest on the gift amount which he had deposited in the firm and the other claimed the status of a Hindu undivided family in respect of the interest income from the share which he obtained in partial partition. During the course of assessment, he filed revised returns on October 25, 1982, claiming the status of individual in respect of all the three items of income as mentioned above. He appeared before the Income-tax Officer on August 16, 1983 and filed a letter consenting to be assessed in the status of an individual, in respect of the income earned on the three items. The income-tax Officer assessed the petitioner in the status of an individual in respect of the above three items for three years in his order dated November 14, 1983. The petitioner had second thoughts and claimed the status of a Hindu undivided family consisting of himself and his wife in so far as interest income from the firm was concerned. He, therefore, filed an application under Section 154 of the Income-tax Act on May 3, 1984, requesting for cancellation of the assessment order made on November 14, 1983 and to pass two separate orders of assessment for each of the three years - one in the status of an "individual" and the other in the status of a "Hindu undivided family". The second respondent rejected the application. On March 21, 1985, he filed an application under Section 264 of the Income-tax Act, 1961, before the first respondent-commissioner seeking cancellation of the orders of assessment in respect of the three assessment years and a direction to the second respondent-Income-tax Officer to make two sets of orders of assessment in accordance with the returns which he had initially filed. The Commissioner of Income-tax rejected that application and affirmed the assessments which were made on the basis of the consent letters which the petitioner had filed before the second respondent during the course of the assessment. The Commissioner also found that the petitioner could not claim the status of a Hindu undivided family in respect of his divided share in the larger Hindu undivided family because what he got at the time of partition when he was unmarried as his separate property could not transform itself into Hindu undivided family property merely by reason of his subsequent marriage. The Commissioner of Income-tax referred to the decision in CIT v. Vishnukumar Bhaiya in preference to the decision of the Allahabad High Court in Prem Kumar v. CIT . The commissioner also relied on a decision of the Gujarat High Court in Anilkumar B. Laskari v. CIT and CIT v. Admiralty Flats Motel of the Madras High Court. Those three orders of the Commissioner are under challenge in these three writ petitions.
2. Sri Man Mohan, counsel for the petitioner, submitted that, for the period relevant to the assessment years in question, the petitioner and his wife constituted a Hindu undivided family, that his partitioned share in the larger Hindu undivided family was its property, and that the income arising therefrom could not but be treated as income of that unit of assessment. He also submitted that as long as the petitioner continued to be a bachelor, the property which he obtained on partial partition was his separate property as owner thereof with the right to dispose of the property as he wished. But when he married, a Hindu undivided family came into being and the joint family character of the property revived. He relied on a decision of this court in Prem Chand v. CIT and decisions of the Supreme court in Gowli Buddanna v. CIT , N. V. Narendranath v. CWT , C. Krishna Prasad v. CIT and Surjit Lal Chhabda v. CIT .
3. According to counsel, these decisions clearly lay down that the property of a Hindu undivided family in the hands of a sole coparcener will not shed its character as joint family property and will revive the moment a Hindu undivided family comes into being by marriage or a coparcener comes into existence by birth or adoption. He submits that the same principle applies to the share which a coparcener obtains on partition and that that is what has happened in this case. Counsel also sought to distinguish the decision in Seth Tulsidas Bolumal v. CIT of this court.
4. Sri M. Suryanarayana Murthy, counsel for the respondent, submitted that what the petitioner got in partition was his separate and absolute property and that his marriage thereafter could not convert the character of that property as claimed by the petitioner. May be a Hindu undivided family came into being on his marriage, but the property still continued to be the separate and absolute property of the petitioner since his wife had no right in that property and hence the income therefrom was his individual income. He also urges that the petitioner himself having filed a consent letter dated August 16, 1983, claiming assessment as an individual in respect of the income he had returned, cannot be heard to fault the respondent for having finalised the assessment on the basis of his consent. He submitted that the effect of the enactment of the Hindu Succession Act was not fully comprehended or considered by the Supreme Court except in the case of C. Krishna Prasad v. CIT . He submits that in CWT v. Mukundgirji , this court considered this aspect and that the decision has since been approved by the Supreme Court in CWT v. Chander Sen . Reference was also made to the decisions in Addl. CIT v. P., L. Karuppan Chettiar [FB], Shrivallabhadas Modani v. CIT and CIT v. Ratanlal . Counsel for the Revenue submits that the observations of the Supreme Court in T. S. Srinivasan v. CIT are conclusive as the facts in issue there were almost the same as in the present case. He places reliance on the observations contained in Kalyanji Vithaldas v. CIT [1937] 5 ITR 90 (PC) and CIT v. A. P. Swamy Gomedalli [1937] 5 ITR 416 (PC). He also submits that in R.C. No. 96 of 1986, a Division Bench of this court in which A Seetaram Reddy J. who was a party to Prem Chand v. CIT has referred to a Full Bench for consideration, the question whether a wife who is a member of a Hindu undivided family consisting of her husband and son can voluntarily renounce membership of the Hindu undivided family and yet retain the marital relationship so as to exclude her separate wealth from being taken into account in assessing the wealth of the Hindu undivided family. Counsel also relied on the commentary on Hindu Law by Mulla to make out his case that the divided share of a coparcener is his separate and absolute property, and female members are not entitled to claim any interest in such property. He sought to distinguish the decision in Prem Chand v. CIT for the reason that it rested entirely on the continuance of the Hindu undivided family by reason of the subsistence of the marriage, notwithstanding the fact that the wife had been granted a share in partition according to the Benaras School of Mitakshara Hindu law. He submits that the decision cannot be an authority for the proposition that the separate and absolute property which a coparcener obtained in a partition at the time when he was unmarried would automatically transform itself into joint family property on his marriage : That is the question which we have to tackle in the three writ petitions.
5. The precedents which counsel on either side have referred to us are conflicting. The task of reconciliation of those conflicting precedents is not easy. We have to undertake the difficult exercise in view of the rival contentions.
6. The first of the decisions which we have to notice is that of the privy Council in Kalyanji Vithaldas v. CIT [1937] 5 ITR 90 and CIT v. A. P.Swamy Gomedalli [1937] 5 ITR 416 (PC). In the former case, the Privy Council held (at page 94) :
"A man's wife and daughter are entitled to be maintained by him out of his separate property as well as out of property in which he has a coparcenary interest, but the mere existence of a wife or daughter does not make ancestral property joint."
7. In Attorney-General of Ceylon v. AR. Arunachalam Chettiar [1958] 34 ITR (ED) 42 (PC), the Privy Council dealt with a case of joint family consisting of a father and son and female members. The son predeceased the father. When the father died later, there were only female members in the family. The widow of the predeceased son adopted a son thereafter thus reviving the coparcenary. At the time relevant for the assessment of estate duty, the father was the sole surviving coparcener. The question which the Judicial Committee considered was whether it was necessary that there should be more than one coparcener to constitute a Hindu undivided family. The Privy Council observed (at p. 45) :
"... though it may be correct to speak of him (the sole surviving coparcener) as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son, it assumes a different quality : it is such, too, that female members of the family (whose numbers may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property... it would not appear reasonable to impart to the Legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners."
8. The Privy Council, therefore, held that the character of joint family property which is paramount will revive when a coparcener comes into being either by birth or by adoption.
9. In Gowli Buddanna v. CIT , the above decisions arose for consideration. The facts of the case were the following :
A Hindu undivided family consisted of A, his wife, two unmarried daughters and B, his adopted son. The court observed (headnote) :
Property of the joint family did not cease to belong to the family merely because the family was represented after A's death by a single coparcener B, who possessed rights which an owner of property might possess, and the income received therefrom was taxable as income of the Hindu undivided family."
10 .In T. S. Srinivasan v. CIT , the question that arose for consideration was whether the birth of a son towards the end of the accounting year would convert the individual income of a Hindu male from the share which he received in partition, from his larger Hindu undivided family ? The court held that (headnote) :
"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."
11. The court did not consider the decision in Kalyanji's case [1937] 5 ITR 90 (PC).
12. It is interesting to note that in Gowli Buddanna's case , which was decided on January 10, 1966, there was no reference to T. S. Srinivasan's case , which was decide on November 29, 1965.
13. The same point arose for consideration before the Supreme court in N. V. Narendranath v. CWT . The assessee there was a member of a Hindu undivided family. His family for purposes of assessment consisted of himself, his wife and two minor daughters. The assessee was the sole male member. The assessee claimed to be assessed in the status of a Hindu undivided family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on partition between himself, his father and brothers. The Wealth-tax Officer assessed him as an individual. That was confirmed in first appeal. On second appeal, the Income-tax Appellate Tribunal held that he should be assessed in the status of a Hindu undivided family. At the instance of the Commissioner, the Tribunal referred the question to the High Court as to whether the status of the assessee was a Hindu undivided family. The High court disagreed with the Appellate Tribunal for the reason that the assessee's family did not have any male coparcener and that all the assets forming the subject-matter of the returns filed by the appellant belonged to him as an individual and not to a Hindu undivided family. The Supreme Court reversed the decision of the High court and held that (headnote) :
"Under the Hindu system of law, a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth-tax Act to suggest that a Hindu undivided family as an assessable unit must consist of at least two male members."
14. The Supreme Court referred to the decisions in Kalyanji's case [1937] 5 ITR 90 (PC), CIT v. A. P. Swamy Gomedalli [1937] 5 ITR 416 (PC), Arunachalam Chettiar's case [1958] 34 ITR (ED) 42 (PC) and Gowli Buddanna's case , and held that the case on hand fell within the ratio of the decision in Gowli Buddanna . The court refused to understand T. S. Srinivasan's case , as holding that there would be no Hindu undivided family prior to the date of the birth of the son or, in other words, that mere marriage by itself would not justify a claim that the separate property which an unmarried Hindu male obtained on partition was thereafter property of the Hindu undivided family. The court held that the real controversy in T. S. Srinivasan's case was only whether the date of conception or the date of birth of the son was the material date on which the Hindu undivided family came into being.
15. In C. Krishna Prasad v. CIT , the Supreme Court had to deal with the question of a divided coparcener who had obtained a share from the Hindu undivided family on partition, on October 30, 1958. He continued to be a bachelor till March 31, 1964. During the entire period, he was assessed as an individual. For the assessment year 1964-65, he claimed that he should be assessed in the status of a Hindu undivided family. The authorities rejected that claim. On a reference, the High Court agreed with the departmental authorities and held against the assessee. The Supreme court (headnote) :
"Family' always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. A family consisting of a single individual is a contradiction in terms. Section 2(31) of the Income-tax Act, 1961, treats a Hindu undivided family as an entity distinct and different from an individual. Assessment in the status of a Hindu undivided family can be made only when there are two or more members of the Hindu undivided family."
16. The court noticed that in Gowli Buddanna's case , it had refrained from expressing an opinion on the point "whether a Hindu undivided family may, for the purposes of the Indian Income-tax Act, be treated as a taxable entity when it consists of a single member-male or female". The court observed that (at page 497) :
"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."
18. In view of the fact that the sole surviving coparcener was entitled to dispose of the coparcenary property as if it was his separate property, the court held that the assessee was the absolute owner of the property which fell to his share as a result of the partition. It was particularly noticed (at page 497) :
"There is admittedly no female member in existence who is entitled to maintenance from the abovementioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be affected."
19. The effect of the above pronouncement is that a sole surviving coparcener can be assessed only as an individual notwithstanding the fact that he obtained on partition property which was ancestral in character. It is equally clear that the position would have been different if there was "a family member entitled to maintenance from the abovementioned property."
20. In Surjit Lal Chhabda v. CIT , was the next occasion when the same question came up for consideration before the Supreme court. The court held that the assessee, his wife and his unmarried daughter were members of a Hindu undivided family; the absence of an antecedent history of jointness between the appellant and his ancestors was no impediment to the appellant, his wife and unmarried daughter forming a Hindu undivided family, that, however, until the birth of a son, the personal law of the appellant regarded the appellant as the owner of his separate property and the income therefrom as his income even after the property was thrown into the family hotchpot and that the income was chargeable to income-tax as his individual income and not that of his family. The court virtually reinstated the decision of the privy Council in Kalyanji's case [1937] 5 ITR 90, as applying to separate and self-acquired properties of Hindu males having only female members in their families in which case, such properties would be their own and income therefrom only their individual income. The Supreme Court concluded that (at page 795) :
"The property which the appellant has put into the common stock may change its legal incidents on the birth of a son; but until that event happens the property, in the eye of Hindu law, is really his. He can deal with it as a full owner, unrestrained by consideration of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation."
21. The question which arose for consideration before the Supreme Court in CWT v. Chander Sen , was as to whether a grandson can claim any right in the separate property of the grandfather which devolved on his father on the death of the grandfather after the Hindu succession Act, 1956, came into force. the facts were the following :
22. R and his son, C, constituted a Hindu undivided family. On October 10, 1961, there was a partial partition in the family by which the family business was divided between the father and the son; and thereafter the business was carried on in partnership by a firm consisting of R and C as partners. The firm and the partners were separately assessed. On July 17, 1965, the father died leaving his son and his grandson. For the assessment year 1966-67, the question arose whether income from the business belonged to the Hindu undivided family of C and his son or C in his individual capacity for the purpose of wealth-tax. For the assessment year 1967-68 also, the same question arose. The Appellate Tribunal held that the amount belonged to C in his individual capacity and did not constitute assets of his Hindu undivided family. The high Court having affirmed the decision of the Tribunal, the matter was carried to the Supreme Court. The Supreme court affirmed the decision of the High court and held (headnote) :
"Since C had inherited the amount standing to the credit of his father, R, from whom he had separated by partition in relation to that asset, under Section 8 of the Hindu Succession Act, 1956, that amount belonged to C in his individual capacity and did not constitute an asset of the Hindu undivided family of C and his sons" and that it would be difficult to hold today that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, would be Hindu undivided family property in his hands vis-a-vis his own son."
23. Counsel for the Revenue relies on this decision to urge that the same principle should apply to the case of a wife as in the case of a son in view of the alteration of law brought about by the Hindu Succession Act. Counsel submits that the decision of this court in Prem Chand v. CIT , did not deal with the effect of the Hindu Succession Act and cannot, therefore, be followed, for the proposition that plurality of members by itself will convert the separate property of the Hindu male into the property of the Hindu undivided family and that mere existence of a Hindu undivided family will not affect the nature of the separate property of a Hindu male which he obtained on partition or the income therefrom. He submits that the share of a Hindu male in ancestral property is his personal, individual, separate and absolute property, and does not get converted into property of the undivided family the moment he marries.
24. A question almost the same as in the present case arose for the consideration of the Madhya Pradesh high Court in CIT v. Vishnukumar Bhaiya . The facts were that the assessee had received a share in the Hindu undivided family on partition. He was then single and married some time later. He claimed the status of an individual for periods prior to his marriage and of a Hindu undivided family for the period subsequent to his marriage. The court following the decision in Gowli Buddanna , Surjit Lal Chhabda and C Krishna Prasad , held that (head-note) :
25. When the property was received by the assessee on partition, he was a single member and did not constitute an Hindu undivided family. His status was that of an individual. The fact of his marriage did not alter the position and, in the absence of a son, the personal law of the assessee regarded him as the owner of the property received by him on partition and the income therefrom as his income."
26. The Madras High Court, in Admiralty Flats Motel , also adopted the reasoning that a sole surviving coparcener can deal with his property as he liked, notwithstanding the fact that there were female dependents in his family. A Full Bench of the Madhya Pradesh High Court in Ramratan v. CED , dealing with a case under the Estate Duty Act, on almost the same facts, held that, for purposes of that Act, female members in a Hindu undivided family would have no ownership in the property left by a deceased Hindu male who received that property on partition, if he had no son and had left only his widow; and, therefore, the entire property must be deemed to pass on his death. It is interesting to note that the full Bench proceeded on the basis that, for purposes of the Income-tax Act, the status of the Hindu male and his wife was correctly assigned as Hindu undivided family. The Gujarat High Court, in Anilkumar B. Laskari v. CIT , also held that a sole surviving coparcener of a Hindu undivided family being the owner of the property, the existence of a female members did not affect the absolute right of the male member to deal with the property as his own; and that he was entitled to enjoy the property as his own; and that he was entitled to enjoy the property as if it was his absolute property. A full Bench of the Madhya Pradesh High Court which decided Ramratan's case held in CIT v. Krishna Kumar [FB] that (headnote) :
"although the assessee had no son and the wife had no interest in the properties of the family, yet, for purposes of status, the assessee with his wife constituted a Hindu undivided family."
27. The Allahabad High court in Prem Kumar v. CIT , relying on the observations contained in Krishna Prasad's case [1975] 97 ITR 493 (SC), held that (at page 352) :
28. it has to be held that a Hindu undivided family came into existence when the assessee married" and "that we cannot read this decision (T. S. Srinivasan's case ), as laying down that a Hindu undivided family comes into existence only on birth of a son."
29. A Division Bench of this court dealt with a case in Seth Tulsidas Bolumal v. CIT [1980] 170 ITR 1, of an assessee who was the karta of a joint Hindu family consisting of himself, his wife and major son. He converted some of his individual properties as joint family property by a declaration on June 25, 1970. All these properties were assessed as income of the Hindu undivided family. The joint family properties were partitioned on March 10, 1976, between the assessee and his son, each taking a half share. For the assessment year subsequent to the above partition, the assessee claimed that the amounts which he paid to the smaller joint family was not his individual income, but that of the smaller Hindu undivided family. This court repelled that contention and held that the portion of the converted asset which fell to the share of the assessee after partition was his individual property, notwithstanding the fact that the karta and his wife formed a Hindu undivided family. Reliance was placed on the observations of the Supreme Court in Surjit Lal Chhabda's case . The reasoning of the court was that, in the absence of a son, the property belonged to the Hindu male (karta) absolutely and, therefore, the joint family had no right in the property or the income arising therefrom.
30. In none of the decisions Vishnu Kumar , Prem Kumar , Anilkumar B. Laskari , Admiralty Flats Motel Ramratan [FB], Mukundgirji and Tulsidas Bolumal , had the courts considered the extent and effect of the right or interest of a Hindu wife for maintenance as an obligation attaching to the property-ancestral or separate, of her husband. That question has to be asked and answered now particularly in view of the Hindu Adoptions and Maintenance Act, 1956.
31. The questions which we have to consider are : What is the status of the assessee after his marriage in relation to income from the property which he obtained in partition ? To whom does the income from the income from those properties belong ? Does it belong to him absolutely or is it burdened by an obligation to maintain his wife, and at least in that sense income of the Hindu undivided family ?
32. The assessee was admittedly assigned the status of an "individual" prior to his marriage, because the income from property which he obtained on partition was his individual income, since those were his separate and individual properties. According to Hindu law, that character subsists except against his son, in whose case it will be ancestral property in which the son obtains a right by birth. It may retain the character of joint family property on which an obligation for maintenance can be charged by dependants like wife or daughters who are not coparceners. The right of a Hindu wife to be maintained by her husband was recognised from ancient times. The law has not been altered so far. If at all, that obligation has been given statutory recognition by the provisions of Section 18 of the Hindu Adoptions and Maintenance Act, 1956. This court had occasion to consider the extent and effect of the right of a Hindu wife to be maintained by her husband in Manikyam v. Venkayamma, AIR 1957 AP 710. This court held that maintenance of a wife by her husband is a matter of personal obligation which attaches from the moment of the marriage, even if her husband is not possessed of any property. She is entitled to enforce this personal obligation by creating a charge on his property, either acquired or ancestral. This court observed (at page 713) :
33. Though the right of the wife to separate maintenance does not form a charge upon her husband's property, ancestral or self-acquired, yet when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperilled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children."
34. That decision was approved in Chandramma v. Maniyam Venkatareddy, AIR 1958 AP 396, wherein this court held that the wife was entitled to be maintained out of the profits of her husband's property and to enforce her rights against the properties even in the hands of the alienee with notice of her claim. The court observed (at page 401) :
35. (39) To summarise : The Hindu law texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband's property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance. They further treat her as a member of a Hindu joint family entitled to be maintained out of joint funds.
36. The decisions of the various High Courts toe the same line, recognise her subordinate interest in her husband's property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore, is entitled to be maintained out of the profits of her husband's property and, if so, under the express terms of Section 39 of the Transfer of Property Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim."
37. In Narendranath's case , the Supreme Court held, almost on similar facts, that (at page 197) :
38. The ownership of the dividing coparcener is such 'that female members of the family may have a right to maintenance out of it and, in some circumstances, to a charge for maintenance upon it'... That when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property, in the hands of the coparcener, belongs to the Hindu undivided family of himself, his wife and minor daughters and cannot be assessed as his individual property."
39. These observations have the effect of declaring that the property which a coparcener obtains on partition does not become for all times his individual and separate property. If he has a wife or daughters depending on him, the property will be charged by the obligation to maintain them. If he marries later, his property - ancestral or self-acquired - will be burdened by an obligation to maintain his wife. If he begets a son, that son becomes entitle to a share in the property which thereby revives the character of joint family property. If he begets only daughters, the obligation to maintain them will be fastened on the property. It is not as if fan unmarried Hindu male obtaining a share of ancestral property on partition retains that property as his absolute property even after marriage unencumbered by any obligation to maintain his wife or other dependants. In that absolute sense, it may not be his absolute property after he marries. It sheds the character of separate property and revives its character as joint property of the smaller unit consisting of himself and his wife. In that limited sense, the income therefrom may be the income of the Hindu undivided family consisting of himself and his wife.
40. We draw sustenance for this view from Hindu law and Usage (12th edition) by Mayne, para 725 (at page 1009) :
41. The Hindu law texts impose a legal personal obligation on a husband to maintain his wife irrespective of possession any property whether joint or self-acquired. She is entitled to enforce this personal obligation by creating a charge on his property either ecquired or ancestral. She is, therefore, entitled to be maintained out of the profits of her husband's property within the meaning of Section 39 of the Transfer of property Act and can enforce her rights against the properties in the hands of the alienee with notice of her claim." (Chandramma's case, AIR 1958 AP 396).
42. Hindu Law, Principles and Precedents, by Raghavachariar (8th edition) para 20 :
Her right is undoubtedly a pre-existing right in property, a jus ad rem not jus in rem and it can be enforced by her who can get a charge created for her maintenance on the property either by agreement or decree from the civil court; the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which she becomes a sort of co-owner in the property of her husband though her co-ownership is of a subordinate nature."
43. and S. V. Gupta in Hindu Law in British India (3rd edition) wherein it is stated that the share of a Hindu coparcener is his separate and absolute property as against other coparceners and not as much against the dependants. It may be that the subordinate right of co-ownership which a wife obtains on marriage may be dormant until the owner's death. But the right of the owner is definitely conditioned by the obligation to maintain his wife, as spelt out in Section 18 of the Hindu Adoptions and Maintenance Act, 1956. That maintenance must necessarily come from the income of the property in cases where the husband has such income. It follows that the property which a Hindu coparcener obtains on partition and who marries subsequently is conditioned by the obligation to maintain his dependants. The status of the unit of assessment is necessarily that of a Hindu undivided family and the income from such property is assessable in the hands of that unit and not that of the individual.
44. In the present case, the facts are fairly clear. The assessee obtained his share in a partition of the Hindu undivided family. It is not in dispute that whatever share he got was from ancestral property. Both sides agree that had the petitioner been married and had a son at the time of partition, such property would indeed have been the property of the Hindu undivided family. The only question which we have to consider is whether it makes any difference since the assessee was unmarried on the date of partition and he married only some time thereafter ? Does the only fact that he was married only after partition inhibit the revival of the character of the property as joint family property or does it, for all times, remain his exclusive, separate and individual property as held by the Department ? On a consideration of the decided cases and authoritative text books, we are of the opinion that the Income-tax officer and the Commissioner of Income-tax erred in holding that the assessee was liable to be assigned the status of an individual" and not Hindu undivided family in respect of the income from the ancestral property which he obtained on partition. The result is that the orders of the Income-tax Officer as confirmed by the Commissioner of income-tax are illegal and unsustainable.
45. We note that the Revenue did not refuse relief to the petitioner on the ground of acquiescence or any such similar ground. They based them selves entirely on the view that a Hindu wife has no right or interest in the separate property of her husband and, therefore, in respect of such property and income therefrom the assessee can be assigned only the status of an individual. Since we hold that the Assessing officer and the Commissioner erred in law in taking that view, we do not feel persuaded to refuse relief on any technical ground.
46. We are of the opinion that the question which the Division Bench has referred to the full Bench in R.C. No. 96 of 1986, namely, whether a Hindu wife is entitled to renounce her membership of a Hindu undivided family during the subsistence of the marriage s no relation to the questions which we have to decide in this case, except that the conclusion which we have reached is in accordance with Prem Chand , nor are we persuaded to hold that Section 8 of the Hindu Succession Act has any bearing on the present case.
47. We, therefore, quash the impugned orders of assessment for the assessment years 1981-82, 1982-83 and 1983-84, assigning the petitioner the status of an "individual" and the order of the Commissioner of Income-tax affirming the same. The respondents will be free to complete the assessment treating the disputed income as that of the Hindu undivided family.
48. The writ petitions are, accordingly, allowed. No costs.