C. Krishna Prasad v. Commissioner Of Income Tax, Bangalore

1. The question referred under section 256(1) of Income-tax Act, 1961, for our opinion is :

"Whether, on the facts and in the circumstances of the case, the assessee was rightly assessed in the status of an individual for the assessment year 1964-65 ?"

2. Briefly stated the facts are : One Krishnaswamy Naidu along with his two sons, C. Krishna Prasad (the assessee) and C. Krishna Kumar, formed a Hindu undivided family upto October 30, 1958, when there was a partition between Krishnaswamy Naidu and his two sons. In the said partition, the assessee got some house properties and vacant sites. The partition was recognised by the department and an order under section 25A of the Income-tax Act, 1922, was passed recognising the partition as from November 1, 1958.

3. On the date of partition and also during the relevant period, i.e., the year ending on March 31, 1964, the assessee was unmarried. The assessee filled a return for the assessment year 1964-65 showing his status as an individual. Upto the assessment year 1963-64, the assessee was assessed in the status of an individual. However, in the course of the assessment proceedings for the assessment year 1964-65, the assessee claimed that he should be assessed in the status of a Hindu undivided family. The Income-tax Officer did not accept the claim of the assessee and he held that the status of the assessee is that of an individual. On appeal, the Appellate Assistant Commissioner affirmed the order of the Income-tax Officer. Further appeal to the Income-tax Appellate Tribunal also failed. At the instance of the assessee, the Tribunal has referred the above question of law for our opinion.

4. In order to constitute a Hindu undivided family, it is not necessary that there must be at least two male members. A coparcener with his wife and unmarried daughters can constitute a Hindu undivided family as held by the Supreme Court in Gowli Buddanna v. Commissioner of Income-tax. In the said decision, the Supreme Court followed the decision of the Judicial Committee of the Privy Council in Attorney General of Ceylon v. Arunachalam Chettiar. The same view was taken under the Wealth-tax Act, 1957, in N. V. Narendranath v. Commissioner of Wealth-tax. In the said case the family of the assessee consisted of a single male member and his wife and daughters. The contention that in order to constitute a Hindu undivided family two coparceners are necessary was rejected by the Supreme Court.

5. Sri K. Srinivasan, the learned counsel for the assessee, relying on the observations made in Narendranath's case, urged before us that the properties of the assessee were joint family properties before the partition, that on allotment of a share to the assessee, the said share has not ceased to bear the character of joint family property and become the absolute property of the assessee. In other words, the partition did not affect the character of the properties as joint family properties.

6. In Gowli Buddanna's case, while rejecting the plea that there must be two male members to form a Hindu undivided family as a taxable entity the Supreme Court made it clear that they express no opinion on the question whether a Hindu undivided family may for the purposes of the Indian Income-tax Act or female. According to the said decision, the expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of the Hindus. Therefore, we have to see whether, under the Hindu system of law, a single member - male of female - can constitute a joint family.

7. In Vedathanni v. Commissioner of Income-tax, a Special Bench of the Madras High Court consisting of Beasley C. J., Ramesam and Cornish JJ. has observed that there can be a joint family with a single member provided there are other members entitled to maintenance from the estate. Relying there are other members entitled to maintenance from the estate. Relying on the said observation, Mayne's Treatise on Hindu Law, eleventh edition at page 334, states that there can be a joint family with a single male member provided there are widows of deceased coparceners.

8. In Sir Hari Singh Gour's Hindu Code, fourth edition, at page 398, it is stated that a joint family may consist of a single male member with females who have no right to a share the corpus, but still are entitled to maintenance therefrom.

9. Mulla's Principles of Hindu Law, thirteenth edition, page 249, states that the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue who takes an interest in it by birth, whether they are existence at the time of partition or are born subsequently; but such share, however, is ancestral property only as regards his male issue. We have not been shown any decision or treatise on Hindu law in support of the assessee's contention that a male member of a joint Hindu family obtaining a share on partition would constitute a Hindu undivided family if he has no wife or children. No doubt, when he marries and has wife, he would be entitled to be entitled to be assessed in the status of a Hindu undivided family. In our opinion, in order to constitute a joint family, there must be more than one member; one member by himself cannot constitute a joint family. A member taking a share on partition of joint family properties has the potentialities of becoming a joint Hindu family; but until he marries he cannot be considered as a Hindu undivided family. Therefore, the Tribunal was right in dismissing the assessee's appeal. The assessee was rightly assessed in the status of an individual for the assessment year 1964-65.

10. Our answer to the question referred is in the affirmative and against the assessee. In the circumstances, no cost.