MAHAVIRPRASAD BADRIDA Vs. M S YAGNIK

JUDGEMENT

(1.) By this petition the competence of the Union Parliament to enact the Wealth-Tax Act (Act XXVII) of 1957, in so far as that Act seeks to levy Wealth-tax on Hindu undivided families, is challenged. The petitioner, who is the karta of a Hindu undivided family and is being assessed to wealth-tax in the status of Hindu undivided family was, by notice dated 12-7-1958 issued in exercise of powers conferred by section 14(2) of the Wealth-Tax Act, called upon by the Second Wealth-Tax Officer. C-II Ward, Bombay, to furnish a return of the net wealth of his undivided Hindu family. The petitioner claims that the notice is invalied because section 3 of the Wealth-tax Act is ultra vires the Union Parliament in so far as that section authorises the levy of wealth-tax on the net wealth of a Hindu undivided family.

(2.) By section 3 of Act 27 of 1957 liability to pay for every financial year commencing on and from the 1st day of April, 1957, a tax referred to as the Wealth-tax in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule is imposed. The petitioner contends that to the extent the Union Parliament authorised the levy of wealth-tax on Hindu undivided families as units, the ligislation is ultra vires, and in support of that contention reliance is placed upon entry No. 86 in List I of the Seventh Schedule to the Constitution of India. That entry reads as follows :

(3.) A Hindu undivided family in essence is an association of male Hindus lineally descended in the male line from a common anscestor and includes their wives and their unmarried daughters. The property belonging to the family is of the ownership of the co-parceners in that family, and whilst the family remains undivided no individual member of the family can predicate his share in the family property. A Hindu undivided family is not a corporation; it is not a juridical entity distinct from the members who constitute it; it cannot sue or be sued in the joint family name and cannot convey the property held by it in its joint character. The co-parceners who are members of the Hindu undivided family are undoubtedly owners of the property, and there is corporate enjoyment of the property; but a Hindu undivided family has no independent existence apart from the individuals who constitute the same Statements sometimes made in decided cases and text books that a Hindu joint family is a "sort of corporation" in dealing with questions relating to enjoyment of the property of the family (see for instance Apaji Narhar Kulkarni v. Ramchandra Ravji Kulkarni, ILR 16 Bom 29 at pp. 39 and 78, and Mayne's Hindu Law, 11th Edition, Art. 243, at page 305) do not justify the view that a Hindu undivided family is a corporation. In a Hindu undivided family there is community of interest and unity of possession between all the members of the family, and until partition takes place there is common enjoyment and common possession of the family property. The family property is the property of the coparceners who for the time being constitute the Hindu undivided family. We are, therefore, unable to agree with the contention of Sir Nasserwanji Engineer that a Hindu undivided family is a correration.