Patna High Court
Commissioner Of Income-Tax, Bihar And ... vs Srimati Chandramoni Pattamahadevi ... on 9 January, 1946
Equivalent citations: [1946]14ITR134(PATNA), AIR 1946 PATNA 443
JUDGMENT
FAZL ALI, C.J. - In this reference two questions of law have been referred to us for our opinion, namely :-
"(1) Whether in the circumstances of the case the sum of Rs. 19,800 received by the assessee from the Maharaja of Jeypore is exempt from income-tax under Section 14(1) of the Income-tax Act ?
(2) Whether the Madras Impartible Estates Act, 1904, as amended in 1934, has any application to the facts and circumstances of the case ?"
It was conceded on behalf of the assessee that the Madras Impartible Estates Act, 1904, as amended in 1934, has no application to the facts and circumstances of this case. Therefore the second question must be answered in the negative.
As to the first question, I shall have to refer to certain facts before answering it. In the appellate order of the Income-tax Tribunal there is a reference to two pedigrees, one of Jeypore family and another of Madgole family. It is common ground that these two families are connected by marriage only. It appears that one Mukund Deo No. 1, a junior member of the Jeypore family, married a lady belonging to the Madgole family who bore him a son named Krishan Deo. After the death of Krishan Deo, a dispute arose between his son Mukund Deo No. 2 the husband of the assessee, and one Rajendramoni Debi, another member of the Madgole family, about the ownership of the Madgole estate. Ultimately there was a compromise by which a small part of the estate was given to Rajendramoni in absolute right and the rest of the estate was divided equally between Mukund Deo No. 2, and Rajendramoni subject to the qualification that Rajendramoni was to enjoy her share of the estate only during her lifetime and upon her death it was to devolve upon Mukund Deo. After the compromise Mukund Deo and Rajendramoni brought a suit against the present Maharaja Ramachandra Deo and the late Maharaja Vikram Deo for the redemption of a mortgage relating to half the estate. Ultimately the parties compromised this dispute and a decree was passed providing for the redemption of the property upon payment of Rs. 4,40,000. For the payment of this amount, Mukund Deo and Rajendramoni executed a registered sale deed in favour of the two Maharajas in respect of half the Madgole estate. Upon the death of Mukund Deo the assessee and her mother-in-law executed a registered deed in favour of Maharaja Vikram Deo and Maharaja Ramchandra Deo which provided, among other things, that upon the death of the two executants and of Rajendramoni, the Madgole estate would devolve upon the two Maharajas who were described as the nearest heirs to the last male holder of the estate. On the 28th June 1928 the assessee (her mother-in-law having died in the meantime) executed a deed by which she "surrendered, conveyed and assigned" to Maharaja Ramchandra Deo the entire Madgole estate which had been left in her possession as well as the vested remainder in the portion of the estate in which Rajendramoni had a life estate. Under paragraph 10 of this deed Ramchandra Deo agreed to pay to the assessee monthly a sum of Rs. 1,500 as maintenance allowance and a sum of Rs. 150 as allowance for her residence; and under paragraph 12 the total sum of Rs. 1,650 per mensem was made the first charge on the Madgole estate. In accordance with this agreement the assessee received the sum of Rs. 19,800 as allowance in the year of account, and thus a question arose as to whether this sum was liable to taxation or was exempt therefrom under Section 14(1) of the Income-tax Act. The view expressed by the Income-tax Officer and the Assistance Commissioner of Income-tax was that this sum was taxable; but the Income-tax Tribunal held in its appellate order under Section 33 of the Act that this sum was exempt from taxation. The Tribunal in coming to this decision relied in the first instance on the Madras Impartible Estates Act, 1904, which is now conceded to have no application. They also held after referring to a number of decisions relating to impartible property that the sum in question was received by the assessee as a member of a Hindu undivided family and was, therefore, exempt from taxation under Section 14(1) of the Act. They held as a fact that the assessee was a member of the Jeypore family which was a Hindu undivided family and concluded by saying : "If it be considered that the appellant has not parted with the property represented by the amount of maintenance, it will be agricultural income."
After this decision the Commissioner of Income-tax made an application to the Tribunal asking them to refer the two questions, which are set out above, to the High Court; but they dismissed the application and while dismissing it they observed as follows : "For the reasons stated fully in our said order we held that the widow surrendered her right in the property of the Hindu undivided family to the next male reversioner reserving maintenance to herself, and that the respondent received the amount as a member of the Hindu undivided family and she was entitled to exemption under Section 14(1) of the Indian Income-tax Act. We further held that if it be considered that the respondent had not surrendered the widows estate then she had not parted with the property represented by the money received when the receipt will be from her own estate and the income therefore was agricultural and exempt under Section 2(1) of the Income-tax Act. The decision of the Tribunal was therefore on two alternative grounds and based on the relief admissible under two different sections, 2(2) and 14(1). The applicant has now raised questions of law in regard to the first ground whether the amount was received as a member of the Hindu undivided family. The question arising out of the decision we gave that it was not exempt under the provisions of Section 14(1)(sic) it will be exempt under the provisions of Section 2(1) has not been raised. As this latter finding has become final now any answer on the reference on the first point alone will not disturb the final result of this tribunals order. At such a stage the opinion of the High Court will be obtained only on an academic point. We see no justification for making any such reference. We do not therefore propose to refer the questions to the High Court, as being infructuous."
After this order this Court was moved by the Commissioner of Income-tax to direct the Tribunal to submit a statement of the case under Section 66 and hence this reference.
The first point raised by the assessee before us was that in view of the observations of the Tribunal which have been quoted above, question No. 1 becomes academic and it is not necessary for this Court to answer it. On the other hand, it was contended on behalf of the Commissioner of Income tax that the order of the Tribunal made under Section 33 of the Act contains no final decision as to the disputed amount being agricultural income and any observation on the subject made in that order must be regarded as mere obiter. Ultimately both parties agreed that the question which has been referred to us should be answered and the Tribunal should be left to decide hereafter whether notwithstanding our answer the assessee is to be exempted from taxation.
Now, in answering the question, I must proceed on the assumption that the assessee is joint with Maharaja Ramchandra Deo to whom she has surrendered her estate, notwithstanding the fact that the evidence on that point does not seem to be quite complete. In Commissioner of Income-tax, Punjab v. Dewan Bahadur Dewan Krishna Kishore, Sir George Rankin after reviewing most of the earlier decisions of the Privy Council which dealt with the right of the junior member of a joint Hindu family to claim maintenance out of the income of an impartible estate, observed that the law as declared in the case of Baijnath and Shiba Prasad Singh has not been unsettled by the Gorakhpur case. In view of this expression of opinion, it is necessary to refer to the following observations of Sir Dinshaw Mulla in Shiba Prasad Singh v. Prayag Kumari Debee : "The keynote of the whole position, in their Lordships view, is to be found in the following passage in the judgment in the Tipperah case. Where a custom is proved to exist, it supersedes the general law, which, however, still regulates all beyond the custom. 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) the 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 imcompatible with the custom of impartibility, as laid down in Sartaj Kuaris Case and the First Pittapur case; and so also the third as held in the Second Pittapur case. To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property."
In my opinion, therefore, the law on the subject has been correctly summed up in Shrimati Maharani Laxmipat Mahadevi Garu Dowager Maharani of Jeypore v. Commissioner of Income-tax, U.P., C.P. and Berar, in these words : "As regards the right of the widow to maintenance from the holder of an impartible estate it may be regarded as settled law that this rests on custom, and that such custom in the case of younger sons at least has so often been judicially recognised as not to require proof."
It seems to me, however, that the discussion of the general question as to how far a widow is entitled as of right to maintenance out of the income of the impartible estate is not necessary in this case. It is common ground that the allowance which the assessee received in the year of account was paid to her under the deed of the 28th June, 1928. It was pointed out in Kartar Singh v. Commissioner of Income-tax, Punjab, that the unfailing test for the applicability of Section 14(1) is to determine whether the allowance would cease if the assessee ceased to be a member of the undivided family : see also Shrimati Maharani Laxmipat Mahadevi Garu Dowager Maharani of Jeypore v. Commissioner of Income-tax, U.P., C.P.,and Berar. If we apply this test to the present case, the answer must necessarily be against the assessee. The assessee is entitled to a definite maintenance allowance under a registered deed and the deed does not say that she will receive this allowance only so long as she is a member of the Hindu undivided family. The law to be applied in the present case cannot, in my opinion, be different from that applied in Shrimati Maharani Laxmipat Mahadevi Garu Dowager Maharani of Jeypore v. Commissioner of Income-tax, U.P., C.P., and Berar, already cited, where the assessee was a lady belonging to the Jeypore family to which the present assessee is said to belong and was much more closely related to the holder of the estate than the assessee. The facts of that case were these. Upon the death of the assessees husband a dispute arose between her and his successor over the title to the estate and certain house property. The dispute was settled by the execution of a deed of settlement and compromise. Under the deed the assessee acknowledged the absolute title of the Raja in the estate and disclaimed, relinquished and conveyed in favour of the Raja whatever rights she might have had in the properties and the Raja on his part agreed that he and his heirs should pay a sum of one lakh of rupees every year for and on her behalf and the same was to be secured by a charge on the estate. The Raja also agreed to pay her a certain sum for providing her with a suitable residence and for her medical treatment. The assessee claimed that the annual allowance received by her under the deed was exempt from taxation under Section 14(1) of the Income-tax Act. This claim was, however, negatived.
In the present case it is not at all clear that the assessee has received the allowance as a member of a Hindu undivided family. There is nothing to show that she used to receive any allowance before she executed the deed and there is no statement in the deed that the allowance was to be paid to her as a member of a Hindu undivided family. It is to be observed incidentally that the sum which was fixed as allowance was made the first charge on the Madgole estate and not on the Jeypore estate. If the Maharaja was liable to pay her an allowance apart from the deed and because of her being a member of a Hindu undivided family, the allowance might have been made a charge on the Jeypore estate.
Reference may also be made here to Vikram Deo Maharajulum Garu Maharajah of Jeypore v. Vikram Deo Garu which is also a case relating to the Jeypore estate and which is often referred to as the "Jeypore case." The head-note of that case runs as follows : "In a suit for maintenance by a brothers son of the late Maharajah of Jeypore out of impartible estate of which the latter was and the present Maharajah is now the holder, the defence assumed that the plaintiff had prima facie the right to be maintained but pleaded a special custom taking away such a right. The Courts below being of opinion that the defence had failed to prove the alleged custom decreed the suit." It was held by the Privy Council that in view of the decision in Raja Rama Rao v. Raja of Pittapur, the burden was on the plaintiff to prove a custom entitling him to maintenance and not upon the defendants to prove a custom negativing the ordinary law. Apart from custom and from certain near relationships to the holder the junior members of the family of the zamindars entitled to an impartible zamindari have no right of maintenance out of it, and there is no invariable custom by which any member of the family beyond the first generation from the last holder can claim maintenance as of right.
It is said that the law laid down in this case has been unsettled by certain subsequent decisions of the Privy Council; but such an argument is no longer tenable (See Commissioner of Income-tax, Punjab v. Dewan Bahadur Dewan Krishna Kishore). However that may be, there can be no doubt that at the time when the assessee entered into an agreement with the Maharaja in 1928 the view expressed in the Jeypore case was the prevailing view and upon that view the assessee was not entitled to maintenance apart from custom, from the holder of the Jeypore estate. It may be that for that very reason she chose to secure a maintenance allowance for herself by means of a formal deed of agreement and if she chose to enter into an agreement with the Maharaj which made it incumbent upon him to pay certain allowances to her, apart from her position in the family, it cannot be said that she received those allowances as a member of the Hindu undivided family. Reliance was placed by the learned counsel for the assessee upon the decision of this Court in Commissioner of Income-tax v. Maharani Gyan Manjuri Kuari and that of the Oudh Chief Court in Commissioner of Income-tax, C.P. and U.P. v. Rani Rudh Kumari. These cases, in my opinion, can be of no help to the assessee. In the first case it was held that a certain maintenance allowance which the mother of a holder of an impartible estate periodically and regularly received from the estate in the hands of her son is exempt from taxation under Section 14(1) and in support of this view reference was made to the following passage which was quoted from Mullas Hindu Law : "A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters, and his aged parents whether he possesses any property or not. The obligation to maintain these relations is personal in character, and arises from the very existence of the relation between the parties." If in the present case the assessee belonged to the category of persons referred to in the passage quoted from Mullas Hindu Law, the position might have been different, but the pedigrees referred to in the order of the Tribunal shows that she is very remotely related to the Maharaja of Jeypore from whom she receives the maintenance allowance in question. The case of Rani Rudh Kumari is also distinguishable precisely on the same ground, because in that case also the assessee was the mother of the holder of the estate.
For these reasons, I would hold that the sum of Rs. 19,800 received by the assessee from the Maharaja of Jeypore is not exempt from income-tax under section 14(1) of the Income-tax Act and the answer to the first question should be in the negative.
The assessee must pay Rs. 250 as costs to the Commissioner.
MANOHAR LALL, J. - I agree.
Reference answered in the negative.