COMMISSIONER OF INCOME TAX Vs. NEEKELAL JAINARAIN

JUDGEMENT

(1.) THIS is a statement of a case submitted, at the instance of the Commissioner of Income-tax, U.P. by the Income-tax Appellate Tribunal, Allahabad Bench, to this Court inviting to answer the following question:

(2.) THE Commissioner, Income-tax, made application under Section 66(1) of the Income-tax Act for referring the question of law arising out of the Tribunal's orders to this Court. THE applications were opposed by the assessee. In its reply to the application it ascertained that there was no finding (in the Tribunal's judgments) that any notices under Section 13 was served on the Hindu undivided family on 8-6-1942 and that in its grounds of appeals to the Appellate Assistant Commissioner and the Tribunal it had specifically denied that any notice under Section 13 had been served. In the statement of facts attached to the reply the assessee referred to the ground taken in the memoranda of appeals to the Appellate Assistant Commissioner and the Tribunal and stated that no finding was given by the Tribunal that the notices were served upon the assessee. THE Tribunal allowed the application and staled the case. When the draft statement was shown to the assessee it objected to the statement contained in it about the service of notices under Section 13 upon the assessee on 8-6-1942 and to the question which assumes that notices under Section 13 were served upon the Hindu undivided family before its disruption. THE Tribunal overruled the assessee's objection, saying that the question whether the notices were served upon the assessee or not had never in fact been agitated before it when it heard the appeals.

(3.) UNDER the Hindu Law when disruption of a Hindu undivided family takes place the property available for partition among its members is the joint family property left after providing for joint family debts payable out of it and personal debts of the father not tainted with immorality; see para 304 of Mull's Hindu Law. If no provision is made a partition takes place and each member remains liable for payment of the debts to the extent of the share in the joint family property allotted to him. A son also is liable on account of the pious obligation to discharge a debt not tainted with immorality incurred by his father whether for a legal necessity or not. Thus after the disruption of a Hindu undivided family a member of it becomes liable for payment of a debt incurred by the manager in three cases, (1) when the debt was incurred for legal necessity, (2) when it was incurred for any purpose other than an immoral purpose by the lather-manager and (3) when under the scheme of the partition of the joint family properly liability was transferred to him.