1960 PLP 45 (PTD)

ASIR, J.‑This is a Reference, under section 63 (t) of the Bengal Agricultural Income‑tax Act (Bengal Act IV of 1944) as applied to East Pakistan, by the Agricultural Income‑tax Appellate Tribunal, East Pakistan, at the instance of the assessee who is described as Manager, Sherpur Group of Wards Estate, representing Babu Himangshu Chandra Chowdhury, Karta of a Hindu undivided family. It involves 7 wards, namely, Babu Himangshu Chandra Chowdhury, Hemanta Chandra Chowdhury, Hirak Chandra Chowdhury, Himesh Chandra Chowdhury, Harajit Chandra Chowdhury, Harabrata Chowdhury and Harashekhar Chowdhury. The agricultural income in respect of which assessment has been made is derived from two classes of ancestral properties, (1) secular, and (2) debuttar. By an order, dated 20th January 1952, in Case No. 426‑My. of 1951‑52, Mr. S. A. Ali, the Agricultural Income‑tax Officer, found the net income of the assessee for the accounting period 1357 B. S. (1950‑51) to be Rs. 1,25,808 and Rs. 38,697, respectively, in regard to such properties. In view of deletion of clause (8) of section 2 of the Act by the Bengal Agricultural Income‑tax (East Bengal Amendment) Act, 1951, which came into force on the 1st day of April 1951, the status of the assessee, unlike previous years, was regarded as "Hindu undivided family", and assessment was made accordingly. The aggregate income of the assessee derived from secular and debuttar properties was assessed, and he was called upon to pay a total agricultural income‑tax of Rs. 1,04,191‑9‑0 (sic) on that basis. An appeal preferred by the assessee was dismissed by Mr. M. Hussain, Assistant Commis sioner, Agricultural Income‑tax, East Bengal, by an order, dated 9th June 1953, in Agricultural Income‑tax Appeal No. 1913/ 282‑My. of 1951‑

52. A further appeal before the Agricultural Income‑tax Appellate Tribunal in R. A. Appeal No. 87 of 1953‑54 was also unsuccessful. Thereupon the assessee made an application under section 63 (1) for referring to the High Court certain questions of law as arose out of the order, dated 13th October 1955, passed by the Tribunal. The Tribunal have accordingly drawn up a statement of the case, and made a Reference in their letter, dated 8th March 1956, formulating for our decision the following questions of law; (1) Whether as a result of the amendment deleting clause (8) of section 2 of the Bengal Agricultural Income‑tax Act Hindu undivided family comes to mean a Hindu undivided family governed by Dayabhaga School of law; (2) Whether assessee‑applicant and his co‑sharers form a Hindu undivided family within the meaning of section 3 of the Bengal Agricultural Income‑tax Act for the purpose of assessment ? (3) Whether the decision of the Tribunal for the amalgamation of the surplus income of the debuttar properties coming to the pockets of the assessee‑applicant and his co‑sharers after meeting the costs of worship of the family deities with the income of their other properties for the purpose of assessment under section 3 is tenable under the law ? (4) Whether upon the facts and circumstances and the history of past assessment, the Tribunal's interpretation with regard to provisions of section 30 (1) of the Bengal Agricultural Income‑tax Act is correct ?

2. Mr. Guha, appearing on behalf of the assessee does not seriously dispute the proposition that as a result of deletion of clause (8) of section 2 by East Bengal Act XXI of 1951 the circle of "Hindu undivided family" has been enlarged and the phrase as used in other parts of the same Act would now include Hindu undivided families governed by Dayabhaga School of law as well. The expression by reason of its definition in section 2 (2) was intended to be understood in a limited sense. Only such Hindu undivided families as were governed by Mitakshara School of Hindu law were to be treated as Hindu undivided families for the purpose of assessment under the Bengal Agricultural Income‑tax Act, 1944. This definition by necessary implication excluded other Hindu undivided families who were not governed by Mitakshara law. In our view, the deletion of clause (8) of section 2 goes to signify that since 1st April 1951, a Hindu undivided family, whether governed by Mitakshara, Dayabhaga or any other School of Hindu Law should be regarded and assessed as such for the purpose of the Bengal Agricultural Income‑tax Act as applied to this part of the country. It may be added in this connection that in a decision in the case of Kalyanji Vithaldas v. Commissioner of Income‑tax, Bengal (L R 64 1 A 28 (37)) their Lordships of the Privy Council, while construing the same expression as used in the Indian 'Income‑tax Act, have observed that "the phrase `Hindu undivided family' is used in the statute with reference not to one School only of Hindu law but to all Schools".

3. Mr. Guha, however, contends that in view of the Tribunal's finding that each of the co‑sharers has been receiving his share of allowance separately from the Court of Wards no actual partition by metes and bounds was necessary in the circumstances of the case for his client to invoke the aid of section 30 (1) of the Act. He, therefore, submits that for the purpose of the assessment in question the assessee‑applicant and his co‑sharers did not form a Hindu undivided family during the relevant period. The true test, according to him, is as to whether the agricultural income is being enjoyed separately by the members or groups of the members of such family in definite shares, and not whether there has been any physical partition by metes and bounds. He relies upon the last condition laid down in subsection (1) of section 30 of the Act. He refers to section 14 as relevant only for the purpose of realising from the Manager, Court of Wards, the amount of tax that may be assessed as due from his client.

4. The learned Assistant Government Pleader appearing for the Commissioner of Agricultural Income‑tax, East Bengal, on the other hand, contends that, in order to invoke the aid of section 30 (1) of the Act, the assessee has got to show not only that the agricultural income is being enjoyed separately by the members or groups of the members of such family in definite shares, but also that the particular Hindu undivided family has ceased to exist, and that, as an evidence thereof, it has to be shown that there has been a partition as well. He also contends that in view of the finding of the Tribunal that "there was never any partition by metes and bounds", the assessee is bound to show that the conditions laid down in section 30 (1) have been fulfilled.

5. It appears that it was never disputed at any stage before this that Babu Himangshu Chandra Chowdhury was the Karta of the Hindu undivided family when the estate passed into the management of the Court of Wards. We have, therefore, to proceed on the footing that the family in question was a Hindu undivided family at the time when the management of the estate came into the hands of the Court of Wards. Assessment proceedings under this Act, prior to the present assessment year 1951‑52, could not, however, be initiated on that footing in view of the definition in section 2 (8) of the original Act, which did not include within its ambit a Hindu undivided family governed by Dayabhaga law. Now that the Legislature has, for the purpose of assessment, under the Act, done away with that distinction between a Hindu undivided family governed by Mitakshara law and another by Dayabhaga law, it is reasonable to expect satisfactory evidence from one who claims to invoke the aid of section 30 (1) that the conditions laid down therein have been satisfied. Mr. Guha has frankly conceded that the onus of proof in this behalf is on his client. Apart from the question as to whether, in view of the admitted fact that in previous years there was no assessment on the footing of a Hindu undivided family, this section could at all be attracted, it remains to be seen whether, in the facts and circumstances of the present case the interpretation as sought to be put upon section 30 (1) by Mr. Guha is correct or not. He contends that the test of partition for the purpose of recording an order as contemplated in section 30 (1) is not actual partition by metes and bounds, but enjoyment of property by the members separately in definite shares. We do not see any reason as to why, for the purpose of determining as to whether there has been a disruption or division in a Hindu undivided family or as to whether there has been a partition of the joint properties held by a Hindu undivided family, the principles laid down in the relevant personal law should not be kept in view. As the present case is in respect of a Hindu undivided family governed by Dayabhaga School, we think it proper to apply the test of partition as accepted under Dayabhaga law. In Article 279 at page 350 of Mulla's Principles of Hindu Law, 11th Edition, it is observed as follows; "The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. While the family continues joint, no coparcener can say that he is the owner of a definite share, one‑third or one‑fourth. His interest is a fluctuating interest, capable of being enlarged by deaths, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a defined share. Once the shares of the coparceners are defined, a partition is deemed to have taken place, and the coparcenary is dissolved from that moment. On the other hand, the essence of a coparcenary under the Dayabhaga law is unity of possession. It is not unity of ownership at all. The ownership of the coparcenary, property is not in the whole body of coparceners. Every coparcener takes a defined share in the property, and he is the owner of that share. That share is defined immediately the inheritance falls in. It does not fluctuate with births and deaths in the family. Even before partition any coparcener can say that he is entitled to a particular share, one‑third or one‑fourth. Thus if `A' dies leaving three sons, `B', 'C' and `D', each son will take one‑third and each one will be the owner of his one‑third share. The sons are coparceners in this sense that their possession of the property inherited from 'A' is joint. It is the unity of possession that makes them coparceners. So long as there is unity of possession, no coparcener can say that that particular third of the property belongs to him ; that he can say only after a partition. Partition then, according to the Dayabhaga law, consists in splitting up joint possession, and assigning specific portions of the property to the several coparceners. According to the Mitakshara law, it consists in splitting up joint ownership, and in defining the share of each coparcener."

6. Again, at pages 449‑50 of the same volume, it is observed as follows: "As under the Mitakshara law, so under the Dayabhaga law, the true test of a partition lies in the intention of the parties to separate. In the case of a joint Mitakshara family, that intention may be manifested by a mere agreement between the coparceners to hold and enjoy the property in defined shares as separate owners without an actual division of the property by metes and bounds. In the case, however, of a joint Dayabhaga family, such an agreement as aforesaid is not a sufficient manifestation of the intention to separate ; for, according to the Dayabhaga law, the joint property is held, even while the family remains joint, in defined and specific shares. To constitute a partition according to the Dayabhaga law, there must be something more than such an agreement. There must be a separation of the shares, and the assignment to each coparcener of specific portions .of the joint property."

7. It will thus appear that in the case of a Hindu undivided family governed by Mitakshara law a partition can be said to have taken place on holding and enjoying the property in defined shares as separate owners without an actual division of the property by metes and bounds. But in the case of a Hindu undivided family governed by Dayabhaga law, something more than that is necessary. There must also be an assignment to each coparcener of specific portions of the joint property. Applying this test, we. cannot but hold that in order to prove partition, as contemplated in section 30 (1), the degree of proof will vary according as it may be a case of Hindu undivided family governed by Mitakshara or Dayabhaga law. In our present case, which comes under Davabhaga law, something more than mere separate drawing of allowance or separate enjoyment of the agricultural income in the respective shares of the seven wards or co‑sharers ought to have been proved in order to enable us to hold and determine that the particular Hindu undivided family has in fact ceased to exist. In our view, the clause "Hindu undivided family has: ceased to exist" cannot be understood except on the footing of `partition' as indicated in the earlier part of subsection (1) of section

30. The Legislature seems to have made it perfectly clear that, in order to invoke the aid of section 30 (1), both the conditions i.e., (1) `the Hindu undivided family has ceased to exist' and (2) `the agricultural income is being enjoyed separately by the members or groups of the members of such family in definite shares' have to be taken into consideration where the Agricultural Income‑tax Officer is expected to be otherwise satisfied. We do not think, in the facts and circumstances of the case, as found by the Appellate Tribunal, the assessee has been able to make out that there has been any disruption or division in the Hindu undivided family in question or that such undivided family has ceased to exist within the meaning of 'section 30 (1) of the Act. In this view of the matter, it is not possible for us to agree with Mr. Guha that actual partition by metes and bounds should not, be the criterion for holding that a Hindu undivided family governed by Dayabhaga law has ceased to exist. We are, there fore, of the opinion that the Tribunal's interpretation in regard to the relevant provision of section 30 (1) is correct, and that, in the absence of any proof that there has been an effective partition, the assessee‑applicant and his co‑sharers should be regarded as having formed a Hindu undivided family within the meaning of section 3 of the Act for the purpose of assessment. The decision in the case of Saha Ram Kishan v. State of Uttar Pradesh (31 I T R 895), as relied upon by Mr. Guha, does not, in our view, support him as, in that case, there had been a disruption in the Hindu undivided family whereas, in our present case, there is no material for arriving at a finding to that effect.

8. As regards the income of the debuttar properties, it is not disputed that if the assessee‑applicant cannot succeed on his contention with regard to the applicability of section 30 (1), he cannot possibly claim to be treated as an individual merely because the source of agricultural income is somewhat different. The surplus income of the debuttar properties is undoubtedly appropriated as an income of the assessee under the authority of the deed of endowment. It is, therefore, an additional income of the assessee concerned, besides what is derived by him from the secular properties. It is not disputed that the income from both the sources is agricultural income. As such, we do not think it unreasonable if income from both the sources is assessed at a time under the same status.

9. All the contentions raised by Mr. Guha thus fail. He does not press any other point before us.

10. We would, therefore, answer in the affirmative all the questions referred in the present case.

11. In view of the fact that this seems to be a case of the first impression since the deletion of clause (8) of section 2 of the Act, we do not propose to make any order as to costs of this Reference. ISPAHANI, J.‑I agree. K. B. A./A. H. Reference answered in affirmative.