Full Judgment Text
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PETITIONER:
COMMR. OF WEALTH TAX, MADRAS & ORS.
Vs.
RESPONDENT:
LATE R. SRIDHARAN BY L.Rs.
DATE OF JUDGMENT29/04/1976
BENCH:
ACT:
Special Marriage Act, 1954, , Sec. 21- Marriage between
Hindu assessee and Christian female-Whether issue is a Hindu
governed by Hindu Law.
HEADNOTE:
The late R. Sridharan married Rosa Maria Steinbichler,
a christian Austrian of descent, under the Special Marriage
Act, 1954 and a son Nicolas Sundaram was born out of the
wedlock. In the assessment proceedings i respect of income
tax, wealth tax and expenditure tax, Sridharan claimed to be
assessed in the status of a member of Hindu Undivided Family
consisting of himself and his son, contending that the
property held by him was ancestral and Nicolas Sundaram was
a Hindu. The officers dealing with these taxes rejected the
contention and assessed him as an individual on the ground
that succession to the property of a person married under
the Special Marriage Act, 1954, is governed by the Indian
Succession Act, 1925 and not by ordinary Hindu Law and
Nicolas Sundaram could not become a member of Hindu
Undivided Family With his father. these orders were affirmed
by the Appellate Assistant Commission i the Appellate
Tribunal in appeals by Sridharan against the assessments..
On further applications made by Sridharan, the Income Tax
Appellate Tribunal referred the matter to the High Court
which decided in favour of Sridharan but granted a
certificate of fitness. Meanwhile, Sridharan died, and his
widow filed wealth tax returns, claiming the status of a
member of Hindu Undivided Family. The Revenue authorities
followed their earlier decisions, and ultimately the matter
was referred to the High Court
which decided in favour of respondent Mrs. Sridharan, but
granted Leave to appeal to this Court.
Dismissing the appeals, the Court,
^
HELD: ( 1 ) Under the codifying, Acts. the orthodox
concept of the term "Hindu" has undergone a radical change
and it has been given an extended meaning. The Acts not only
apply to Hindus but also to a large number of other persons.
Any child legitimate or illegitimate, one of whose parents
is a Hindu by religion and who is brought up as a Hindu, is
a Hindu. [478D-E]
(2) Section 21 of the Special Marriage Act has no
bearing on the present case. The section does not in any way
impair or alter the joint family structure between n
assessee and his son. Nor does it affect the discretion
vested in a Hindu assessee to treat his properties as joint
family properties by taking into his fold his Hindu sons so
as to continue joint family properties [479 A-C]
Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas
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Vaishya and Anr. AIR 1966 S.C. 1119; Bhagwan Koer v. J. C.
Bose & Ors. (1904) ILR 31 Cal. 11; Lingappa v. Esudasan
(1904) 27 Mad. 13; Mothey Anja Ratna Raja Kumar v. Koney
Narayana Rao & Ors. AIR 1953 SC 433 and Ananthaya v. Vishnu
17 Mad. 160, referred to.
Webster’s 3rd New International Dictionary of the
English Language; Encyclopaedia Britannica (15th Edn.);
Gitarahasya by B. G. Tilak Principles of Hindu Law (14th
Edn.) pp. 671 and chap. I para 6 by Mulla, and Hindu Law &
Usage (11th Edn.) pp. 290 by Mayne, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1399 to
1403 of 1970.
479
Appeal from the Judgment and order dated 20th December
1-968 A the Madras High Court in Tax Case No. 314/64
(Reference No. 82 of 1964) and
Civil Appeal No. 301 of 1974
Appeal from the Judgment and order dated 3rd April 1972
of the Madras High Court in Tax Case No. 328 of 1966
(Reference No. 88/66).
S. T. Desai, J. Ramamurthi; for the appellant (In CA
1399-1403 of 1970).
S. Swaminathan, Mrs. S. Gopalakrishnan for the
Respondent in all the appeals.
The Judgment of the Court was delivered by
JASWANT SINGH, J. These Appeals Nos. 1399 to 1403 of
1970 and 301 of 1974 by certificates granted by the High
Court of Madras shall be disposed of together by this
judgment as they raise common question of law and fact.
The circumstances giving rise to these appeals are: The
late R. Sridharan along with his father and brothers
constituted a Hindu undivided family governed by Mitakshara
law. On June 28, 1952, while he was still unmarried, a
partition took place between him, his brothers and his
father. As a result of this partition, a block of shares in
T. V. Sundaram Iyengar and Sons Private Limited and three
other limited companies fell to his share. On June 14, 1956,
Sridharan married Rosa Maria Steinbchler, a Christian woman
of Austrian descent, under the Special Marriage Act, 1954.
On November 29, 1957, a son named Nicolas Sundaram was born
out of this wedlock. For the assessment years 1957-58, and
1958-59, Sridharan was assessed to income tax and wealth tax
in the status of an ’individual’ on his own declaration to
that effect. In the assessment proceedings in respect of
income tax and wealth tax for the assessment years 1959-60,
1960-61 and 1961-62 and in the assessment proceedings under
the Expenditure Tax Act for the year 1961-62, he claimed to
be assessed in the status of a member of Hindu undivided
family consisting of himself and his son, Nicolas Sundaram,
contending that the property held by him was ancestral and
Nicolas Sundaram was a Hindu. The Income Tax officer, Wealth
Tax officer and Expenditure Tax officer refused to accede to
the contention of Sridharan and assessed him in the status
of an ‘individual’ as in the previous years on the grounds
that the value of the share and other investments standing
in his name being his exclusive properties and by virtue of
section 21 of the Special Marriage Act, 1954, succession to
the property of a person whose marriage has been solemnized
under that Act being governed by the Indian Succession Act,
1925, and not by the ordinary Hindu law, Nicolas Sundaram
could not become a member of Hindu undivided family with his
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father. Sridharan thereupon went up in appeal to the
Appellate Assistant Commissioner but remained unsuccessful.
The orders passed by the Income
480
Tax /Wealth Tax/Expenditure Tax officers and the Appellate
Assistant Commissioner were also affirmed in appeals against
the assessments respectively made under the Income-tax Act‘,
Wealth Tax Act and the Expenditure Tax Act by the Appellate
Tribunal. In the course of its consolidated order rejecting
the appeals, the appellate Tribunal observed that although
section 21 of the Special Marriage Act pre served some of
the rights in the family property of the children born out
of marriage solemnized under that Act, it did not clothe
such off spring with the character of Hindus and therefore,
there was no Hindu undivided family of Sridharan and his son
which could claim to be taxed as Hindu undivided family.
Thereafter on the applications made by Sridharan under
section 27 ( 1 ) of the Wealth Tax Act, section 66 ( 1 ) of
the Income-tax Act and section 25(l) of the Expenditure Tax
Act, the Income-tax Appellate Tribunal referred the
following common question of law arising from its aforesaid
decision for the opinion of the High Court:-
"Whether, on the facts and in the circumstances of
the case, the assessee and his son constituted a Hindu
undivided family for purposes of assessment under the
Income-tax, Wealth-tax and Expenditure-tax Acts ?"
The High Court following the decision of this Court in
Gowli Buddanna v. Commissioner of Income-tax(l) held that
Sridharan’s claim to be reckoned as Hindu undivided family
was well merited and the Tribunal was in error in holding
that there was no Hindu undivided family of Sridharan and
his son which could claim to be assessed and taxed as such
either under the Income-tax Act, or Wealth Tax Act or the
Expenditure Tax Act. The High Court accordingly answered the
question in the affirmative but granted certificate of
fitness for appeal to this Court.
Sridharan died on April 9, 1962. A few days after the
valuation date relevant for the assessment year 1963-64, his
widow Mrs. Rosa Maria Steinbchler filed a wealth tax return
claiming that the assessment for the assessment year 1962-63
should be made in the status of Hindu undivided family. The
Wealth Tax officer following his earlier decision in the
assessment proceedings in respect of the previous years
rejected the claim of Rosa Maria Steinbchler holding that
she was not a Hindu and in any case since her marriage with
Sridharan was under the Special Marriage Act, 1954, Nicolas
Sundaram had no right by birth in the properties obtained by
the assessee on partition. He further held that Nicolas
Sundaram could claim Sridharan’s property only under the
Indian Succession Act, 1925 and not under the Hindu law. on
appeal, the Appellate Assistant Commissioner affirmed the
order of the Wealth Tax officer. A further appeal was
481
"Whether the assessee, Sridharan and his son
constituted A in law a Hindu undivided family for the
purpose of assessment under the Wealth-tax Act, 1957 ?"
The High Court answered the question in the affirmative
i.e. . against the Revenue observing that the decision in
the previous reference directly governed the facts of the
fresh reference.
Aggrieved by this order of the High Court, the
appellant applied and obtained leave to appeal to this Court
under section 29(1) of the q Wealth-tax Act, 1957 and
Article 133(1)(c) of the Constitution of India. This is how
the appeals are before us.
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Counsel appearing for the appellants and respondents
have repeated before us the contentions respectively
advanced on behalf of the parties before the High Court.
It cannot be disputed that a joint Hindu family
consists of all persons lineally descended from a common
ancestor and includes their wives and unmarried daughters.
It cannot also be disputed that property obtained by
Sridharan on partition between his father and brothers could
become ancestral property so far as his sons, grandsons and
great grandsons were concerned who could according to
Mitakshara law acquire an interest therein by birth.
The sole question which, however, falls for our
consideration in these appeals is whether Nicolas Sundaram
is a Hindu governed by Hindu law. It is a matter of common
knowledge that Hinduism embraces within itself so many
diverse forms of beliefs, faiths, practices and worship that
it is difficult to define the term ’Hindu’ with precision.
The historical and etymological genesis of the word
"Hindu" has been succinctly explained by Gajendragadkar,
C.J. in Shastri Yagnapurushdasji & ors. v. Muldas Bhundardas
Vaishya & Anr.(l).
In Unabridged Edition of Webster’s Third New
International Dictionary of the English language, the term
’Hinduism’ has been defined as meaning "a complex body of
social, cultural, and religious beliefs and practices
evolved in and largely confined to the Indian subcontinent
and marked by a caste system, an outlook tending to view all
forms and theories as aspects of one eternal being and
truth, a belief in ahimsa, karma, dharma, sansara, and
moksha, and the practice of the way of works, the way of
knowledge, or the way of devotion as the means of release
from the bound of rebirths; the way of life and form r of
thought of a Hindu".
In Encyclopaedia Britannica (15th Edition), the term
’Hinduism’ has been defined as meaning "the civilization of
Hindus (originally, the inhabitants of the land of the Indus
River). It properly denotes the Indian civilization of
approximately the last 2,000 years, which
(1) A.I.R. 1966 S.C. 1119.
33-833 SCI/76
482
gradually evolved from Vedism, the religion of the ancient
Indo-European peoples who settled in India in the last
centuries of the 2nd millennium BC. Because it integrates a
large variety of heterogeneous elements, Hinduism
constitutes a very complex but largely continuous whole, and
since it covers the whole of life, it has religious, social,
economic, literary, and artistic aspects. As a religion,
Hinduism is an utterly diverse conglomerate of doctrines,
cults, and way of life .... In principle, Hinduism
incorporates all forms of belief and worship without
necessitating the selection or elimination of any. The Hindu
is inclined to revere the divine in every manifestation,
whatever it may be, and is doctrinally tolerant, leaving
others-including both Hindus and non-Hindus-whatever creed
and worship practices suit them best. A Hindu may embrace a
non-Hindu religion without ceasing to be a Hindu, and since
the Hindu is disposed to think synthetically and to regard
other forms of worship, strange gods, and divergent
doctrines as inadequate rather than wrong or objectionable,
he tends to believe that the highest divine powers
complement each other for the well-being of the world and
mankind. Few religious ideas are considered to be finally
irreconcilable. The core of religion does not even depend on
the existence or non-existence of God or on whether there is
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one god or many. Since religious truth is said to transcend
all verbal definition it is not conceived in dogmatic terms.
Hinduism is, then both a civilization and a conglomerate of
religions, with neither a beginning, a founder, nor a
central authority, hierarchy, or organization. Every attempt
at a specific definition of Hinduism has proved
unsatisfactory in one way or another, the more so because
the finest Indian scholars of Hinduism, including Hindus
themselves, have emphasized different aspects of the whole".
In his celebrated treatise "Gitarahasaya", B.G. Tilak
has given the following broad description of the Hindu
religion:-
: "Acceptance of the Vedas with reverence;
recognition of the fact that the means or ways of salvation
are diverse; and realisation of the truth that the number of
gods to be worshipped is large, that indeed is the
distinguishing feature of Hindu religion".
In Bhagwan Koer v. J. C. Bose & ors.(l) it was held
that Hindu religion is marvellously catholic and elastic.
Its theology is marked by eclecticism and tolerance and
almost unlimited freedom of private worship. Its social code
is much more stringent, but amongst its different castes and
sections, exhibits wide diversity of practice. No trait is
more marked of Hindu society in general than its herror of
using the meat of the cow.
This being the scope and nature of the religion, it is
not strange that it holds within its fold men of divergent
views and traditions who have very little in common except a
vague faith in what may be called the fundamentals of the
Hindu religion.
(1) [1904] I.L.R. 31 Cal. 11.
483
It will be advantageous at this stage to refer to page
671 of Mulla’s A Principles of Hindu Law (Fourteenth
Edition), where the position is stated thus:-
: "The word ’Hindu’ does not denote any particular
religion or community. During the last hundred years and
more it has been a nomenclature used to refer
comprehensively to various categories of people for purposes
of personal law. It has been applied to dissenters and non-
comformists and even to those who have entirely repudiated
Brahminism. It has been applied to various religious sects
and bodies which at various periods and in circumstances
developed out of or split off from, the Hindu system but
whose members have nevertheless continued to live under the
Hindu law and the Courts have generally put a liberal
construction upon enactments relating to the personal laws
applicable to Hindus".
In paragraph 6 of Chapter I of Mulla’s aforesaid
Treatise, the following have been enumerated as persons to
whom Hindu law applies:-
"(i) not only to Hindu by birth, but also to
Hindus by religion, i.e. converts to
Hinduism;
(ii) to illegitimate children where both parents
are Hindus;
(iii)to illegitimate children where the father is
a Christian and the mother is a Hindu, and
the children are brought up as Hindus. But
the Hindu law of coparcenary, which
contemplates the father as the head of the
family and the. sons as coparceners by birth
with rights of survivorship, cannot from the
very nature of the case apply to such
children;
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(iv) to Jains, Buddhists in India, Sikhs and
Nambudri Brahmins except so far as such law
is varied by custom and to Lingayat who are
considered Sudras;
(v) to a Hindu by birth who, having renounced
Hinduism, has reverted to it after performing
the religious rites of expiation and
repentence. Or even without a formal ritual
of reconversion when he was recognised as a
Hindu by his community;
(vi) to sons of Hindu dancing girls of the Naik
caste converted to Mahomedanism, where the
sons are taken into the family of the Hindu
grandparents and are brought up as Hindus;
(vii) to Brahmos; to Arya Samajists; and to
Santhals of Chota Nagpur and also to Santhals
of Manbhum except so far as it is not varied
by custom; and
484
(viii) to Hindus who made a declaration that they
were not Hindus for the purpose of the
Special Marriage Act, 1872."
This enumeration is based upon decisions of various
courts relating to old uncodified Hindu law.
In Lingappa v. Esudasen(l) which related to
maintenance, it was held that Hindu law does not apply to
the illegitimate children of a Hindu father by a Christian
mother who are brought up a Christians. This decision
indirectly leads to the conclusion that legitimate children
of a Hindu father by a Christian mother who are brought up
as Hindus would be governed by Hindu law.
In Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao &
ors.(2) whole approving the observations made in Ananthaya
v. Vishnu(3) this Court inter alia held that under the
Mitakshara law, an illegitimate son is entitled to
maintenance as long as he lives, in recognition of his
status as a member of his father’s family.
Under the codifying Acts namely the Hindu Marriage Act,
1955, the Hindu Succession Act, 1956, the Hindu Minority and
Guardian ship Act, 1956 and the Hindu Adoption and
Maintenance Act, 1956, the orthodox concept of the term
’Hindu’ has undergone a radical change and it has been given
an extended meaning. The aforesaid codifying Acts not only
apply to Hindus by birth or religion i.e. to converts to
Hinduism but also to a large number of other persons.
According to explanation (b) to section 2(1) of the Hindu
Succession Act, 1956, Hindu Adoption and Maintenance Act,
1956 and Hindu Marriage Act, 1955 as also according to
explanation (ii) to section 3(1) of the Hindu Minority and
Guardianship Act, 1956, any child legitimate or
illegitimate, one of whose parents is a Hindu by religion
and who is brought up as a Hindu is a Hindu.
In the present case, Sridharan is a Hindu by birth and
was lawfully married to Rosa Maria Steinbchler. Even after
his marriage, he did not renounce Hinduism but continued to
profess that religion. Having been begotten out of the
aforesaid valid and lawful wedlock, Nicolas Sundaram is a
legitimate child and lineal descendant of Sridharan. There
is no material on the record to show that Nicolas Sundaram
was not brought up as a Hindu or that he did not conform to
the habits and usages of Hinduism or that he was not
recognised as a Hindu by the society surrounding him or that
he became a convert to another faith. Sridharan has also
unequivocally acknowledged and expressly declared that he
and his son, Nicolas Sundaram formed a Hindu undivided
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family. This declaration in the circumstances is sufficient,
as also found by the High Court? to establish that Nicolas
Sundaram was brought up as a Hindu member of the family to
which his father belonged. At page 290 of his Treatise on
Hindu Law, and Usage (Eleventh Edition), Mayne says that a
child in India, under ordinary circumstances, must be
presumed to have his father’s
(1) [1904] 27 Mad. 13. (2) A.I.R. 1953 S.C. 433. (3) 17 Mad.
160.
485
religion, and his corresponding civil and social status. He,
there- A fore, have no hesitation in holding that Nicolas
Sundaram is a Hindu and he could validly be a member of the
Hindu undivided family headed by his father and be governed
by Hindu law.
Section 21 of the Special Marriage Act which has been
heavily relied upon by the Revenue has, in our opinion, no
bearing on the present case. That section provides that
succession to the property of a person whose marriage has
been solemnized under the Special Marriage Act, 1954 and the
property of the issue of such marriage shall be governed by
the provisions of the Indian Succession Act (XXXIX of 1925).
In other words, the section guarantees inter alia to the
issue of the person whose marriage has been solemnized under
the Special Marriage Act a collateral statutory right of
succession to the estate of the latter in case he dies
intestate. It does not in any way impair or alter the joint
family structure between an assessee and his son. Nor does
it effect, as observed by the High Court, the discretion
vested in a Hindu assessee to treat his properties as joint
family properties by taking into his fold his Hindu sons so
as to constitute joint family properties.
For the foregoing reasons, we are of the opinion that
the aforesaid question referred to the High Court was
rightly answered by it on both the occasions. In the result,
we find no merit in these appeals which are dismissed with
costs.
M.R. Appeals dismissed.
486