SITALDAS TIRATHDAS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE assessee in this case is assessed in the status of an individual and the relevant assessment years are 1953 -54 and 1954 -55. In these two years the assessee paid Rs. 1,350 and Rs. 18,000 respectively as maintenance to his wife and children. This maintenance was payable under a decree of court in Suit No. 102 of 1951 but the decree had not made the payment of this maintenance a charge on the property. The Tribunal held that this was a mere case of the assessee being compelled to apply a portion of his income for the maintenance of a person whom he was under a personal and legal obligation to maintain and since there was no charge created on the property these amounts could not be deducted from the income of the assessee. The question of law that arises from the order of the Tribunal, and which has been referred to us is :

(2.) NOW , Mr. Kolah says that the Tribunal erred in giving under importance to the question as to whether or not the amount of maintenance was charged on the property of the individual, and he says that a recent decision of this court, to which I was a party, has laid down that if there is a legally enforceable right against the individual, then the individual is entitled to have the amount deducted from his income irrespective of whether there is a charge. The case on which Mr. Kolah relies is the case of set Motilal Manekchand v. Commissioner of Income -tax. It is necessary to look closely at the facts of this case for under standing the passage on which Mr. Kolah relies. A managing agency belonged to a Hindu joint family consisting of a father, a mother and a son. Upon a partition between the members of the family, the managing agency was divided and by the partition deed it was provided that the father and the son shall have equal shares in the managing agency and each of them shall pay to the mother 2 annas 8 pies out his respective share. The father and son constituted a registered firm and carried on the managing agency. Both in the assessment of the firm and of the individual partners it was claimed that 2 annas 8 pies paid to mother should be deducted before ascertaining the taxable income. We held that the amount was not deductible in the assessment of the firm, but it was deductible in the assessment of the partners. On a true interpretation of the deed itself and having looked at its provisions, we came to the conclusion that to the extent of 2 annas 8 pies of the share of each partner, the income had been diverted from him to the mother and never formed part of his income at all. In this connection, however, an argument was advanced by Mr. Kolah for the assessee in support of the claim for exemption that the payment to the mother was a charge on the income of the managing agency. We were inclined to accept the submission, as we have specifically stated in the judgment, but we considered it unnecessary to do so, and what we stated is at page 741 :

(3.) IN this judgment we have considered all the decisions relating to this branch of the law of income -tax beginning from the case of Dudhuria, which I have just referred to, and having taken into account all those decisions we had in this judgment deliberately made the two observation that we have set out above, which do appear to be an extension of the right of exemption of the right of exemption as it was understood in prior decisions. It may be that in so stating the law the ratio had been put in a somewhat wide form; but there can be little doubt that we have, in terms, laid down that it is not essential that there should be a charge, it is quite sufficient if there is a legally enforceable claim. If that test is to be applied to the facts of the present case, the decree undoubtedly constitutes a legally enforceable claim.