Indian Kanoon - Search engine for Indian Law

(1) 56 I.T.R. 353. (2) 70 I.T.R.

812. (3) 75 I.T.R. 529.(4)Tax Case 272 of 1964'.. (5) Tax Case No. 10 of 1966.(6)74 I.T.R. 167. (7) 67 I.T.R. 612.(8)65 I.T.R. 19.

To pronounce on the question of law presented for our decision, we must first examine what is the true scope of the doctrine of throwing into the 'common stock' or 'common hotchpot. It must-be remembered that a Hindu family is not a creature of a contract.As observed by this Court in Mallesappa Bandeppa Desai and Ors. v. Desai Mallappa and Ors.(1) that the doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener, who has an interest in the coparcenary property and desires to blend hi-, separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock 'his self acquired properties The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention' of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or 'his ancestral property but by his, own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock 'is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. As soon as he declares 'his intention to treat his self acquired property as that of the joint family, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law. When a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act. In such a case there is no donor or donee. Further no question of acceptance of the property thrown into the common stock arises.

(1) 78 C.L.R. 199.

(2) 56 I.T.R. 62.

5 2 9 ren. This Court overruled that contention. Therein the contention of the Revenue appeared to have proceeded on the basis that the antecedent act of the assessee viz. throwing his self-acquired properties to the common stock may not amount to a transfer of his assets to his minor children but the partition that followed amounted to such a transfer. In that very case the Revenue appears to have contended before the High Court that the act of the assessee in throwing his self acquired properties into common stock amounted to a transfer of his assets to his minor children. The High Court observed that when the separate property of a copar- cener ceases to be his separate and becomes impressed with the character of coparcenary property, there is no transfer of that property from the coparcener to the coparcenary; it becomes joint family property because the coparcener who owned it until then as his separate property, has by the exercise of his volition, impressed it with the character of joint family or coparcenary property, to be held by him thereafter alongwith other members of the joint family; it is by his unilateral action that the property became joint family property; the transaction by which a property ceased to be the property of a coparcener and became impressed with the character of copes property, does not itself amount to a transfer; no transfer need precede the change and no transfer ensues either-see M. K. Stremann v. Commissioner of Income-tax, Madras(1). We are in agreement with those findings.