S.S Sandhawalia, C.J:— Whether the status of an individual assessee governed by Hindu law would change to that of a Hindu Undivided Family under the Income-tax Act merely on his marriage (as yet without issue) is the somewhat ticklish question necessitating this reference to the Full Bench.

2. The facts may be noticed with relative brevity. The respondent-assessee Shri Shankar Lal Budhia was originally a member of a larger Hindu Undivided Family of Shri Mahabir Prasad Budhia. Way back on the 22nd of March, 1956 there was a partial partition of the said family and at that time the respondent was a minor. Therein he was allocated shares in the Ranchi Electric Supply Co., Budhia Brothers Pvt. Ltd. and Ganpatrai Properties Pvt. Ltd. and thereafter be acquired interest in some other immoveable property as well. It is common ground that from the date of the partial partition for nearly a decade the tax returns were himself (sic) filed by him in the status of an individual upto the assessment year 1966-1967. The assessment was also throughout made in the status of an individual. However, after his marriage on the 9th of March, 1966 the assessee filed two returns-one in the status of an individual and the other in the status of an H.U.F for the years 1967-1968, 1968-1969 and 1969-1970. The income-tax Officer, however, took the firm view that for these years also the status of the respondent assessee must remain, as in the past, of an individual only. The assessee took the matter in appeal before the Appellate Assistant Commissioner wherein he called for a remand report from the successor Income-tax Officer who later expressed the view that the entire income under both capacities should be assessed in the status of an H.U.F However, the Appellate Assistant Commissioner took the firm view that in respect of the assets acquired by the assessee on partial partition of the bigger H.U.F on the 22nd of March, 1956 when the assessee was a minor and even after his marriage on the 9th of March, 1966, his status would continue to be that of an individual till a son was born to him. Aggrieved thereby the assessee came up in further appeal to the Tribunal which held in his favour by observing that after his marriage in March, 1966 the assessee would also constitute an H.U.F even when no son was born to him. They accordingly set aside the order of Appellate Assistant Commissioner and remanded the matter back to him to dispose of the same in the light of the above.

3. The Commissioner of Income-tax claimed reference from the Tribunal on the point of law which was, however, declined. Thereafter the Commissioner approached this Court fox seeking a mandamus and on 16th of August, 1978 the Division Bench directed that the following question of law for decision of the Court be stated:

“Whether on the facts and in the circumstances of the case the Tribunal was correct in law in holding that the status of the assessee even after marriage was that of an H.U.F and not that of an individual.”

4. Apparently because of the significance of the issue it was also directed that the case should be placed for hearing before a Bench of three Judges.

5. Since I am firmly inclined to the view that the core question before us is now squarely governed both by binding and persuasive precedent, it would be unnecessary, if not wasteful to launch on any elaborate dissertations on principle. Nevertheless at the very threshold it first seems apt to recall the terse but celebrated dictum of Sir George Rankin in Kalyanji Vithaldas v. Commissioner of Income tax, Bengal, (1937) 5 ITR 90:—

“The phrase ‘Hindu undivided family’ is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the ‘words ‘Hindu co-parcenery’, all the more that it is not possible to say on the face of the Act that no female can be a member.”

6. Having thus noticed that the concept of a Hindu undivided family under the Act is different and distinct from a Hindu co-parcenery which is indeed a much narrower concept, one may proceed to the undisputed and the basic rule of Hindu law applicable in the context. This indeed may be noticed from the terse statement thereof in article 340 of the authoritative work of Mulla on the Principles of Hindu Law:—

“340. Devolution of share acquired on partition.— The effect of a partition is to dissolve the co-parcenery, with the result that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs. But if a member while separating from his other coparceners continues joint with his own male issue, the share allotted to him on partition will in his hands retain the character of a coparcenery property as regards the male issue.”

7. Proceeding from the aforesaid firm base, one may briefly advert to the undisputed facts and an objective test which may be applied thereto. Admittedly from 1956 onwards, after the partition of the earlier Hindu joint family, the assessee held his share as his separate individual property. At that time he was a minor but it is not in dispute that after attaining majority as well, both in law and fact he held the taxable property as his separate property and his status as an individual one. It bears repetition that right from 1956 for ten years the respondent assessee himself filed his returns in the status of an individual and was assessed as such. There seems to be no dispute that in this period he had an absolute and unlimited right of ownership to his separate property and not a limited one. Would marriage change that legal position—can be tested on the touchstone whether his wife as yet could challenge or object to any alienation of the property by the assessee after his marriage. Plainly the answer has to be in the negative. Admittedly, as yet there, is no child of the wedlock and even if the wife has no right to assail any alienation, one of the basic concepts of limited ownership in a Hindu undivided family would be conspicuous by its absence. Therefore, on this touch-stone as well, mere marriage by itself would not convert separate property and individual income-tax status to that of a Hindu undivided family.

8. If authority was needed for the aforesaid principle, it exists in C. Krishna Prasad v. Commissioner of Income-tax, Bangalore, (1974) 97 ITR 493. Therein their Lordships of the Supreme Court were considering the case of a single individual claiming the status of a Hindu undivided family for purposes of tax and observed as follows:—

“In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above-mentioned 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.”

9. Having cleared the decks, one may now straighaway go to the authoritative enunciation of their Lordships in Surjit Lal Chhabda v. Commissioner of income-tax Bombay, (1975) 191 ITR 776, which, in my view, now conclusively covers the issue. Apart from other matters, the allied question came in for direct consideration by their Lordships in the context or an assessee who, besides his wife, had an unmarried daughter as well. It was held there in as under:—

“The appellant has no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever…………………

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 the full owner unrestrained by considerations 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 do right to challenge the alienation.

Since the personal law of the appellant regards him as the owner of Kathok Lodge and the income therefrom as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family.”

10. It would be somewhat manifest from the sbove that even in the case of a Hindu assessee having an unmarried daughter, if his original status was that of an individual, the same would not change by the factum of marriage or female issue and even by the throwing of his Separate property into the common hotchpot. The present case is on a stronger footing in favour of the revenue because as yet the assessee has no issue whatsoever—male or female. The persuasive judgment that is on all fours is that of the Division Bench of Madhya Pradesh High Court in Commissioner of Income-tax, M.P-1 v. Vishnu Kumar Bhaiya, (1983) 142 ITR 357, which, in following Surjit Lal Chhabda's case (Supra), observed in identical circumstances as under:—

“In the present case, as stated above, when the property was received by the assessee in partition he was a single member and did not constitute a family. His status was that of an individual. In the circumstances, the fact of his marriage did not alter the position and in the absence of a son the personal law of the assessee regards him as the owner of the property received by him in partition and the income therefrom as his income. The assessee is, therefor liable to be assessed in his status as an individual as hithertofore and the tribunal was not justified in holding the assessee was entitled to be assessed in the status or an HUF after his marriage.”

11. From the aforequoted two cases, it would be somewhat axiomatic that if even marriage with a female issue or issues would not convert individual status for purposes of income-tax into an HUF, it is manifest that mere marriage without any issue at all would be very far from achieving any such result. As I have said earlier, it is thus clear that the issue is now governed by binding precedent and by virtue of Article 141 of the Constitution no further discussion thereto is either necessary or possible barring the question whether the view aforesaid would in any way be at variance with another decision of the final Court itself. Finding himself confined within these narrow parameters, Mr. Gadodia for the respondent assessee, almost as an argument of desperation, sought to contend that the View expressed in Surjit Lal Chhabda's case was at variance with that of their Lordships in C. Krishna Prasad's case. A close reading of that judgment would, however, indicate that any such submission is not in the least warranted. In that case their Lordships were primarily considering the question as to whether a single individual would first constitute a family and could thereafter constitute a Hindu undivided family for the purpose of income-tax. They answered the threshold question in the negative by holding that a single individual does not constitute a family and consequently any further consideration of being an HUF would not even arise. It was observed as under:

“It would follow from the above that the word ‘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. He or she would remain; what is inherent in the very nautre of things, an individual, a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Section 2(31) of the Act treats a Hindu undivided family as an entity distinct and different from an individual and it would, in our opinion, be wrong not to keep that difference in view.”

12. The above observations far from in any way buttressing the stand of the learned counsel for the respondent, in fact, strongly boomeranged upon him. It does not follow from the observations that because a single individual cannot constitute a family, every two individuals would constitute a Hindu undivided family Indeed I have already quoted earlier from this very judgment wherein it has been held that the assessee was an individual and not a family. I am unable to find the least deviation or cleavage in C. Krishna Prasad v. Commissioner of Income-Tax, Bangalore, [(1974) 97 ITR 493] and Surjit Lal Chhabda v. Commissioner of Income-Tax, Bombay, [(1975) 101 ITR 776] and the two judgments are in a way supplementary to each other and both go strongly in aid of the appellant revenue.

13. In the light of the aforesaid discussions, the answer to the question posed at the very outset is rendered in the negative and it is held that the status of an individual assessee governed by Hindu law would not change to that of a Hindu undivided family under the Income-tax Act automatically on his marriage.

14. In the light of the above, the specific answer to the referred question is that the Tribunal was not correct in law in holding that the status of the assessee after marriage was that of an HUF and not that of an individual. The question is answered in favour of the revenue and against the assessee. There will, however, be no order as to cost in the three references.

S.K Jha, J.:— I entirely agree.

Uday Sinha, J.:— I agree.