COMMISSIONER OF INCOME TAX Vs. PURUSHOTAM GANGADHAR BHENDE

JUDGEMENT

(1.) THE assessee is a citizen of Goa, governed by the Portuguese Civil Code. He was married as per the custom of Goa, and under the relevant provisions of the Portuguese Civil Code, a house property which yielded an income of Rs. 3,810 during the assessment year 1968 -69, with which the court is concerned in the present reference, thereupon became the property of the communion of the husband and wife. It will hereafter be referred to as 'communion property'. The Income -tax Officer determined the status as 'body of individuals' of husband and wife and taxed the income from the house property accordingly. That decision was reversed by the Appellate Assistant Commissioner who held that the respective shares of the husband and wife must be taxed in their individual hands separately under section 26 of the Income -tax Act, 1961. On appeal to the Tribunal, on a consideration of the relevant provisions of the Portuguese Civil Code, it has held that each of the consorts had a vested interest in his or her half share, and by its order dated 13th December, 1970, the Tribunal, therefore, confirmed the Appellate Assistant Commissioner's view that the income from the house property was liable to assessment in equal shares in the hands of each of the consorts separately and dismissed the appeal. On this reference, the following question has been referred to the High Court under section 256(1) of the Income -tax Act, 1961 :

(2.) WHEN the matter first came up before us, parties were not agreed in regard to the proper translation of the relevant provisions of the Portuguese Civil Code. It was, therefore, adjourned for obtaining an official translation from Goa. When it came up before us again on 10th December, 1974, an official transaction was produced, and was tendered and marked by us as exhibit 'A'. That was supplemented by an agreed translation of certain other provisions of the Portuguese Civil Code on which also the parties sought to rely, and the same was tendered and marked exhibit 'B' by us.

(3.) IT may be mentioned that section 26 of the Income -tax Act, 1961, reproduces what was section 9(3) of the Indian Income -tax Act, 1922, which was introduced into that Act some time in the year 1939. In connection with the language employed by the legislature in section 26, it must be noted that whilst the word 'definite' used therein has a connotation in praesenti, the word 'ascertainable' has a connotation in futuro, the legislature having advisedly not used the word 'ascertained'. In the Oxford English Dictionary, volume III, several meanings of the word 'definite' have been given, but, in my opinion, in the context in which that word is used in section 26, the meanings which are applicable are from the first meaning given in the said dictionary, and they are 'fixed, certain'. When the word 'definite' is understood in the sense of 'fixed', it means fixed as opposed to fluctuating, and when the word 'definite' is understood in the sense of 'certain', in my opinion, it means that it is certain in the sense of being not dependent on a contingency, or in the sense of not being in dispute. The case of Abdul Rahman v. Commissioner of Income -tax was a case in which the parties were Mahomedans. The brothers disputed the right of the sisters to any share in the estate left by their deceased father by reason of the customary law alleged to be applicable to them, and there was a suit pending between them. The view taken was (at page 309) that though the share of each heir could be said to be ascertainable, so long as litigations were pending, it could not be said to be definite within the ordinary meaning of that term. The term 'ascertain' is also given several meanings in volume I of the Oxford English Dictionary, but the meaning which, in my opinion, is applicable in the context in which it is used in section 26 is part of the 8th meaning given therein, viz., to make precise by determining exactly its limits, extent, amount, etc. As already pointed out above, section 26 uses the word 'ascertainable' which would, therefore, mean something capable of being made precise by determining its limits, extent or amount. The question which we have to determine in this reference, therefore, is whether in the case of a husband and wife governed by the Portuguese Civil Court and married according to the custom of Goa, each of them can be said to own shares in house property which are 'definite and ascertainable' within the above meaning of the terms as used in section 26. Mr. Joshi sought to contend that the shares of the husband and wife must be definite and ascertainable in respect of each individual house property, but I am not prepared to accept that contention of Mr. Joshi. First and foremost, it is important to bear in mind that section 26 deals with one of the heads of income in section 14 which is captioned as 'income from house property' and which must mean the total income from all the house properties owned by the assessee. Secondly, the opening words of section 26 itself show that the section deals with property 'consisting of buildings or buildings and lands appurtenant thereto owned by two or more persons', which must mean that it deals with property in a collective sense and not with a specific property. The use of the word 'property' in the latter part of the same section must, therefore, obviously be given the same meaning and must be held to have been used in a collective sense as referring to the income of all the house properties owned by the assessee. I, therefore, hold that the definite and ascertainable shares which the assessee must hold in order to come within section 26 need not be definite and ascertainable shares in each individual house property, but in all the house properties owned by him collectively, regardless of the assessee's income from the other heads of income mentioned in section 14 with which section 26 is not concerned. The second question that arises, as a matter of construction of section 26, is whether the shares of the assessee must be definite and ascertainable in the corpus of the house properties, or in the income thereof, or in both the corpus as well as the income of the house properties. A plain reading of the section, in my opinion, shows that the opening part clearly contemplates that the assessee must have definite and ascertainable shares in the corpus of the house property owned by him, and the latter part of the section, when it refers to the income from that house property, postulates that the income is also to be owned by the assessee in the same definite and ascertainable shares as the corpus. The view I take of section 26, therefore, is that in order to fall within section 26, the assessee must have definite and ascertainable shares in the corpus as well as the income of all the house properties which he owns.