SRIDHARAN R LATE Vs. COMMISSIONER OF WEALTH TAX

JUDGEMENT

(1.) ON applications made by the assessee under Section 27(1) of the Wealth Tax Act, Section 66(1) of the Income-tax Act and Section 25(1) of the Expenditure Tax Act, the Income Tax Appellate Tribunal has referred the following common question for our decision:--

(2.) THE Tribunal passed a consolidated Order in the appeals against the assessments respectively made under the Income-tax Act and Wealth Tax Act for the assessment years 1960-61 and 1961-62 and against the assessment under the Expenditure Tax Act for 1961-62. In all the appeals the Tribunal sustained the assessment made on the assessee in the status of an individual. THE assessee late R. Sridharan, was a member of a Hindu undivided family, along with his father and brothers. On a partition between the assessee, his brothers and father, a block of shares in T. V. Sundaram Iyengar and Sons Private Limited and three other Limited Companies were allotted to his share. At the time of the partition he was not married. On June 24, 1956, he married an Austrian Lady, Rosa Maria Steinbchler, under the Special Marriage Act, 1954. A son, Kicolas Sundaram, was born to them on November 29, 1957. Initially the assessee was assessed to income-tax and wealth tax in the status of an individual on his own declaration. In 1959-60, the assessee claimed the status of a Hindu undivided family consisting of himself and Nicolas Sundaram. THE assessee repeated his claim to be treated as a Hindu undivided family for the assessment years 1960-61 and 1961-62. THE main contention of the assessee was that Nicolas Sundaram was a Hindu and the property held by him was ancestral property and that therefore he has to be assessed in the status of a Hindu undivided family. THE Revenue negatived the contention, THE appeal to the Appellate Assistant Commr. was unsuccessful. THE Tribunal was of the view that although Section 21 of the Special Marriage Act preserved some of the rights in the family property to the children born of such wedlock, yet it did not clothe such issue with the character of a Hindu. THE analogy of the status of a Hindu widow, recognition to which was statutorily given by the Hindu Women's Rights to Property Act, 1937, was, according to the Tribunal, inappropriate. Ultimately the Tribunal was of the view that there was no Hindu undivided family of Sridharan and his son which could claim to be taxed for the assessment years 1960-61 and 1961-62 as demanded by the assessee. Aggrieved against the said decision of the Tribunal, the reference in the manner stated above is before us for consideration.

(3.) IF therefore a widow who by virtue of matrimony could be inducted into the family and can claim the status of a member thereto and indeed can call for a partition and if an idiot who is disqualified to be a sharer can yet be a coparcener and claim himself to be a member of the joint family, it would be hypertechnical and indeed a refinement without any fineness if it is to be said that a legitimate son born out of lawful wedlock and who is acknowledged by the father to be a Hindu, and who has rights of succession though not under the orthodox Hindu law or under the Hindu Succession Act to the estate of his father, cannot be terminologically called as a member of the family of his father.