Full Judgment Text
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PETITIONER:
COMMISSIONER OF WEALTH TAX, WEST BENGAL
Vs.
RESPONDENT:
CHAMPA KUMARI SINGHI & ORS.
DATE OF JUDGMENT19/01/1972
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
HEGDE, K.S.
RAY, A.N.
CITATION:
1972 AIR 2119 1972 SCR (3) 118
1972 SCC (1) 508
CITATOR INFO :
RF 1976 SC2450 (8)
ACT:
Wealth Tax Act, 1957, Section 3-Jain undivided family,
whether Hindu Undivided Family.
HEADNOTE:
The High Court held that the assessee, a Jain undivided
family was not a Hindu undivided family within the meaning
of section 3 of Wealth Tax Act, 1957. According to the High
Court, in order to form a Hindu undivided family its members
must be Hindus; the assessee family being Jains were not
Hindus and so its members could not form a Hindu undivided
family although it was "capable of forming a unit of very
much of the same type and governed by the law applying to a
Hindu undivided family". On the question whether the word
’Hindu’ preceding the words undivided family signifies that
the undivided family should be of those (i) who profess
Hindu religion; or (ii) to whom Hindu Law applies; or, (iii)
who though not professing Hindu religion have come to be
regarded as Hindu undivided family’by judicial and
legislative practice.
HELD : The expression Hindu undivided family includes ’Jain
undivided family’.
For a long time Courts seem to have taken the view that
Jains are Hindu dissenters. [123 E]
Bhagwandas Tejmal v. Rajmal, (1873) 10 Bom. HCR. 241, Lala
Mohabeer Pershad v. Musammut Kunelar Koover, 8 Cal. W.Rep.
116 Civ. Rule and Sheokuarbai v. Jeoracaj, [1921] P.C. 77,
referred to.
The above view has been challenged by Jain historians and
writers and it has been maintained that Jains are quite
distinct from Hindus and have a separate code of law which
unfortunately was not brought to the notice of the courts.
if [124 E]
Bobaladi Gateppa v. Bobbaladi Eramma & Others, A.I.R. 1927
Mad. 228 and C.R. Jain. Jain Law, (1926) pp. 3-23, 219-258,
referred to.
But, the suggestion that Jain law which is found in the
available books should still be applied and the error which
has crept in the matter of jains being governed by Hindu Law
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should be rectified cannot possibly be followed particularly
in view of statutory enactments which in express terms have
been made applicable to Jains’ [125 B]
Panna Lal & Others v. Sitabai, I.L.R. 1954 Nagpur 30,
Sheokuarbai v. Jeoraj, [1921] P.C. 77, referred to.
Before the amendment and codification of major branches of
Hindu law, by the four statutes, i.e. the Hindu Marriage
Act, 1955, the Hindu Succession Act, 1956, the Hindu
Minority and Guardianship Act, 1956. the Hindu Adoption and
Maintenance Act, 1956, the undisputed position was that the
Jains were governed by Hindu law modified by custom and a
Jain joint family was a Hindu joint family with all the
incidents
119
attached to such a family under the Hindu Law. The
legislative practice also was to generally treat Jains as
included in the term ’Hindu’ in various statutory
enactments. Wherever Jains were mentioned in addition it
was ex abundanti cautela. The new statutes did not change
the situation. The fallacy underlying the reasoning of the
High Court is that the artificial field of application of
the law in those statutes shows that Jainism is not treated
even as a form or a development of Hinduism. Even if the
religions are different, what is common is that all those
who are to be governed by the provisions of these enactments
are included in ’the term ’Hindu’. They are to be governed
by the same rules relating to marriage, succession,
minority, guardianship, adoption and maintenance as Hindus.
The statutes thus accord legislative recognition to the fact
that even though Jains may not be Hindus by religion they
are to, be governed by the same laws as the Hindus. The
expression ’Jain undivided family’ is not known to law. The
Jains are governed by all the incidents relating to the
Hindu joint family. Hindu undivided family is a legal
expression which has been employed in taxation laws. It
has a definite connotation and embodies the meaning ascribed
to the expression ’Hindu Joint Family’. [127 E-128A]
Kamawari v. Digbijai, A.I.R. 1922 P.C. 14, Bachebi v.
Makhan Lal & Another, I.L.R. 3 All. 55 Bhagwan Koer v. J. C.
Bose, Ambalal v. Keshav, Bandhochand Gujar, I.L.R. 1941 Bom.
250 and Kalyvani Vitlial Das v. Commissioner of Income Tax,
L.R. 64 I.A. 28, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1090 of
1971 and 1686 of 1968.
Appeals by special leave/certificate from the judgment and
order dated August 25, 1967 of the Calcutta High Court in
Wealth Tax Reference No. 435 of 1963.
S. Mittra, B. D. Sharma and R. N. Sachthey, for the
appellant (in both the appeals).
S. T. Desai, D. N. Mishra, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the respondents (in both the
appeals).
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from the
judgment of the Calcutta High Court arising out of a
reference under the Wealth Tax Act 1957 in which the
question involved is one of importance, namely, whether a
Jain undivided family is included in the expression "Hindu
undivided family" within s. 3 of the Act.
The facts are few and may be stated. For the assessment year
1957-58, the valuation date being 31-12-56 the Wealth Tax
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Officer assessed the family assets of the assessee in the
status of a Hindu undivided family. On appeal to the
Appellate Assistant Commissioner the contentions raised,
inter alia, were that (i) upon the description of the
assessee in the notice of demand the assessment should be
deemed to have been made in the status of an association of
persons which was not a unit on which tax
120
could be levied under the Act; (ii) even if the assessee was
to be treated as a Hindu undivided family, the imposition of
wealth tax on such family was ultra vires the Constitution.
These contentions failed before the Appellate Assistant Com-
missioner. The Appellate Tribunal, to whom the matter was
taken in appeal, held that the assessee followed the Jain
religion and since the unit chargeable to wealth tax under
S. 3 of the Act was either individual or Hindu undivided
family or company none of the units covered the case of the
assessee which was a Jain family. According to the Tribunal
Jains were not Hindus and, therefore, the expression "Hindu
undivided family" in S. 3 did not cover the case of a Jain,
family. The Tribunal set aside the assessment on this
ground alone. The Commissioner of Wealth tax filed an
application under S. 27(1) of the Act praying that the
question of law which arose out of the order of the Tribunal
be referred to the High Court. At the time of the hearing
of that application it was suggested on behalf of the
assessee that further questions arising out of the order of
the Tribunal should also be referred. Finding that
questions other than the question suggested by the
Commissioner of Wealth tax arose out of the order, the
Tribunal referred the following question of law for the
opinion of the High Court :-
"1. Whether, the assessee, a Jain undivided
family, was not a Hindu undivided family
within the meaning of s. 3 of the Wealth tax
Act, 1957, and as such the Tribunal was right
in setting aside the assessment made on the
assessee ?
2. Whether levy of Wealth tax on Hindu
undivided family or joint family governed
under Mitakshra school of Hindu law was beyond
the legislative competence of Parliament and
ultra vires the Constitution of India ?
3. Whether the Wealth Tax Act in so far as
it purports to levy Wealth tax on Hindu
undivided families is void and inoperative as
it offends Article 14 of the Constitution of
India ?"
The High Court held that the Jains not being Hindus in the
generally accepted sense of the term a Jain undivided family
could not be a Hindu undivided family although the incidence
of a Jain family and a Hindu family "may be the same or
largely the same". According to the High Court, in order to
form a Hindu undivided family its members must be Hindus,
the assessee family being Jains, were not Hindus and so its
member,,;
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could not form a Hindu undivided family although it was
"capable of forming a unit of very much of the same type and
governed by the law applying to a Hindu undivided family".
The answer to the first question, therefore, was returned in
the affirmative and in favour of the assessee. The other
two questions were not pressed before the High Court,
presumably in view of the decision in Banarsi Dass v. Wealth
Tax Officer, Special Circle, Meerut(1).
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According to s. 2 (c) of the Act assessee means a person by
whom Wealth tax or any other sum of money is payable under
the Act and includes
(i) every person in respect of whom any
proceedings under this Act has been taken for
the determination of wealth tax payable by him
or by any other person or the amount of refund
due to him or such other person;
(ii) every person who is deemed to be an
assessee under this Act;
(III)"
Section 3 is in the following terms
"Charge of wealth tax--Subject to the other
provisions contained in this Act, there shall
be charged for every (assessment year)
commencing on and from the first day of April
1957, a tax (hereinafter referred to as wealth
tax) in respect of the net wealth on the cor-
responding valuation date of every individual,
Hindu undivided family and company at the rate
or rates specified in the schedule".
The only other provision in the Act in which the expression
"Hindu"’ undivided family" occurs is s. 20. It deals with
assessment after partition of a Hindu undivided family.
Under s. 3 of the Act it is the Hindu undivided family
which is one of the assessable entities. It should be
distinguished from a Hindu co-parcenary which is a much
narrower body than the Joint family. A Hindu joint family
consists of all persons lineally descended from a common
ancestor, and includes their wives and unmarried daughters.
A Hindu coparcenary includes only those who acquire by birth
an interest in the joint coparcenary property, being the
sons, grandsons and great grandsons of the holder of the
joint property. Thus there can be a joint Hindu family
(1) 56 I.T.R. 224.
9-L864SupCI/72
122
consisting of a single male member and widows of deceased
coparceners. It must be remembered that the words "Hindu
undivided family" are used in the Income tax statutes with
reference not to one school of Hindu law only but to all
schools. The sole previous decision in which an identical
question came up for consideration under the Income tax law
is that of the Nagpur Judicial Commissioner’s Court in Nathu
Sao v. Commissioner of Income tax C.P. & Berar(1). In that
case the assessee was a member of the Lad Vaish community
and was a Jain. He claimed to be governed by the Hindu law
and contended that his widowed mother and widowed aunt who
lived with him ’constituted a Hindu joint family. it was
held that ordinarily Hindu Law applied to Jains in the
absence of proof of custom or usage to the contrary and that
the expression "Hindu undivided family did not mean a Hindu
coparcenary but was a wider expression which would take in
the widowed mother and the widowed aunt of the assessee in
that case. No contrary view seems to have been expressed in
any other case subsequently and it appears that it is for
the first time that the Calcutta High Court in the judgment
under appeal has upheld the contention that a Jain undivided
family cannot fall within the expression "Hindu undivided
family". It will not be out of place to mention that
indisputably ever since income tax laws have been in force
no distinction has ever been made between a Jain undivided
family and a Hindu undivided family and a Jain family has
always been assessed as a Hindu undivided family. Even in
the forms prescribed for making returns of Income tax no
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such differentiation or distinction has ever been made.
The main reasoning which prevailed with the High Court is
that although Hindu law applies to Jains except in so far as
such law is varied by custom, Jains do not become Hindus in
the same way as Khojas and Cutchi Memons of Bombay and Sunni
Borahs of Gujarat etc. cannot be regarded as Hindus although
Hindu law applies to them in matters of inheritance and
succession. Moreover, Hinduism does not include Hindu
converts to Christianity and Islam and also dissenters from
Hinduism who formed themselves into distinct communities or
sects with peculiar religious usages so divergent from the
principles of the Shastras that they could not be regarded
as Hindus. Reliance was placed on the decision of the
Mysore High Court in P. F. Pinto v. Commissioner of wealth
Tax, Mysore (2). In that case the ancestors of the assessee
were originally Hindus. They later on became converts to
Christianity. It was found that although for the purposes
of succession to property the Hindu law was still applicable
to the family of the assessee, he could be assessed only as
an
(1) 2 I.T.R. 463.
(1) 65, I.T.R. 123.
123
individual for wealth tax purposes and could not be assessed
in the status of a Hindu undivided family. The Mysore High
Court was inclined to the view that the expression ’Hindu
undivided family’ in s. 3 of the Act was limited to
Mitakshra families or families of persons professing Hindu
religion governed by Mitakshra law and thus it could not
include a Christian undivided family although governed by
Hindu law. The Calcutta High Court in the judgment under
appeal, however, did not consider that the Mysore High Court
was right in holding that s. 3 of the Act was limited only
to Mitakshra families. It may be pointed out that so far as
Income tax law is concerned the expression ’Hindu undivided
family’ has been held to have reference to all schools of
Hindu law and not one school only. [See Kalyani Vithal Das
v. Commissioner of Income tax(1)].
The real question for determination is whether the word
’Hindu’ preceding the words ’undivided family’ signifies
that the undivided family should be of those (i) who profess
Hindu religion; or (ii) to whom Hindu law applies; or (iii)
who though not professing Hindu religion have come to be
regarded as Hindu undivided family by judicial decisions and
legislative practice. It may be mentioned that for a long
time the courts and particularly the Privy Council seem to
have taken the view that Jains are of Hindu origin; they are
Hindu dissenters and although generally adhering to the
ordinary Hindu Law they do not recognise any divine
authority of the Vedas nor do they practice a number of
ceremonies observed by the Hindus. But the modern trend of
authority is against the view that Jains are Hindu
dissenters. As a result of comparative research in
Hinduism, Jainism and Buddhism, it is being emphatically
claimed that the theory that Jains are Hindu dissenters is
based on a misreading of the ancient authorities relating to
these religions (See C. R. Jain-Jain Law’-pp. 3-23 and 21,9-
258). One of the early decisions in which Jains were stated
to be of Hindu origin being Hindu dissenters is that of
Westropp C.J. in Bhagwandas Tejmal v. Rajmal ( 2 ). The
learned Chief Justice based his view on high authority
including the researches of Mr. Mountstuart Elphintone, Late
Col. Mackenzie (9th Vol. of the Asiatic Researches,
including, the essay of Mr. Cole Brooke on the Sect of
Jainas), the work of Abbe Dubois on the Manners etc. of the
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People of India and tile elaborate account of the Jain sect
in the First Volume of Prof. H. H. Wilson’s work. He also
referred to certain decisions of the Sudder Divan Adault in
Calcutta and the High Court of Calcutta, in particular to
the opinion of Peacock C.J. in Lola Mohabeer Pershad v.
Musammut Kundar Koover(3).
(2) (1873) 10 Bom. HCR 241.
(1) L.R. 64 I.A. 28.
(3) 8 Cal. W. Rep. 116 Civ. Rul.
124
The following passage from the judgment of Westropp C.J. is
noteworthy :
"The term Hindu or Gentu, when used in Regula-
tions Act, Statutes, and Charters in which
Hindus or Gentus have been declared entitled
to the benefit of their own law or succession
and of contract, has been largely and
liberally construed. See the remarks at pages
184, 185, 186, 5 Bom. High C. Reports (Lopes
v. Lopes), where Sir Edward Hyde East’s
evidence in 1830 before the House of Lords’
Committee is mentioned, in which he stated
that Sikhs were treated as a sect of Hindus or
Gentus of which they were a dissenting branch.
The authorities. already quoted, show that
Jainas are regarded as a sect of Hindus."
Out of the decisions of the Privy Council, we may mention
Sheokuarbai v. Jeoraj(1) in which their lordships relied on
the statement in Mayne’s Hindu law and Usage that Jains are
of Hindu origin; they are Hindu dissenters and although
"generally adhering to ordinary Hindu law, that is, the law
of the three superior castes, they recognise no divine
authority in the Vedas and do not practice the Shradha or
ceremonies for the dead".
The above view has been challenged by Jain historians and
writers and it has been maintained that the Jains are quite
distinct from Hindus and have a separate code of law which
unfortunately was not brought to the notice of the courts.
Kumaraswami Sastri, Officiating Chief Justice, delivering
the judgment of the Bench in Bobbaradi Gateppa v. Bobbaladi
Eramma & Others(2) elaborately discussed the contrary view
and observed that if the matter were res Integra he would be
inclined to hold that modem research had shown that Jains
were not Hindu dissenters but that Jainism had an origin and
history long anterior to Smritis and commentaries which were
recognised authorities of Hindu law and usage.
Mr. C. R. Jain in his work "Jain Law" written in 1926 has
discussed the findings of various Orientalists subsequent to
those mentioned in the judgment of Westropp C.J. and has put
forward the thesis that Hinduism and Jainism were parallel
creeds though they shared the same form of social order and
mode of living. Jain Law was quite independent of Hindu
law. According to him the Courts had tried on each occasion
to ascertain the Jain Law but unfortunately for various
reasons Jains concealed their Shastras and objected to their
production in Courts. He has emphasised that Jain Law which
is found in the available books should still be applied and
the error which has crept in the matter
(1) A.I.R 1927 Mad. 228.
(2) A.I.R. 1927 Mad. 228.
125
of Jains being governed by Hindu Law should be rectified.
Since 1926 there have been several enactments apart from the
codification of certain major Branches of Hindu law which in
express terms have been made applicable to Jains. The
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course suggested by C. R. Jain cannot possibly be, followed
particularly in the presence of statutory enactments.
In Panna Lal & Others v. Sitabai(1), Hidayatullah J. (as he
then was) delivering the judgment of the Division Bench
observed that it was too, late in the day to contend that
"Jains’ are not included in the term "Hindus" for the
purposes of law. He referred to Mayne’s Hindu law as also
the leading cases on the point apart from West and Buhler’s
Hindu Law (4th Edn.), Gopal Chandra Sarkar’s Hindu Law (7th
Edn.) and Hari Singh Gour’s Hindu Code (4th Edn.). All these
are acknowledged authorities and the conclusion which was
derived not only from the statements contained in their
works on Hindu law but also from decided cases was that the
Jains were to be regarded as Hindus for the purposes of law
though they seem to dissent from some of the principles of
orthodox Hinduism. In the Nagpur case the question which
was being considered was whether The Hindu Women’s Right to
Property Act 1937 was meant to apply to Jains as well or to
Hindus proper. It was in that connection that the- extent
to which Jains were governed by Hindu law or were to be
treated as Hindus for purposes of that law came up for
discussion. The following passage may be reproduced with
advantage :-
"The legislature must be taken to be aware of
the pronouncements of the Privy Council as
well as the leading decisions of the Indian
High Courts where a liberal interpretation was
given to the term ’Hindu’. We do not think
that the Legislature used the term without
advertence to these dicta and, in our
judgment, the Legislature must be deemed to
have used the term "Hindu’ in that larger
sense which has been explained by Mayne at
page 5 of his treatise in the passage quoted
by us elsewhere and which has been the
foundation of decisions on the subject in the
courts of India".
It may be mentioned that the statement from Mayne’s Hindu
Law referred to above is the same which was relied upon by
the Privy Council in Sheokuarbai v. Jeoraj (2)
We may next notice certain decisions in which the word
’Hindu’ as used in various statutes came to be interpreted
by the Courts. In Kamawati v. Digbijai Singh(3) s. 331 of
the Indian
(1) I.L.R. 1954 Nagpur 30.
(3) [1921] P.C. 77.
(2) A.I.R. 1922 P.C.14.
126
Succession Act 1865 had to be interpreted. According to
that section the provisions of that Act were not to apply to
intestate or testamentary succession to the property of any
Hindu. It was held that the person who had ceased to be a
Hindu in religion and had become a Christian could not elect
to be bound by the Hindu Law in the matter of succession
after the passing of the Indian Succession Act and that a
Hindu convert to Christianity was solely governed by that
Act. In other words, according to the Privy Council a
person who had ceased to be a Hindu by religion was not a
Hindu within the meaning of s. 331 of the aforesaid Act. It
was held in Bachebi v. Makhan Lal & Another(1) that the term
’Hindu’ in s. 331 of the Indian Succession Act 1865 included
a Jain and consequently in matters of succession Jains were
not governed by that Act. It was pointed out that the
ordinary Hindu law of Inheritance was to be applied to jains
in the absence of proof of custom or usage varying that law.
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The Privy Council in Bhagwan Koer v. J. C. Bose & Others (2
) expressed the view that a Sikh was a ’Hindu’ within the
meaning of that term as used in S. 2 of the Probate and
Administration Act 1881. It was pointed out that the Courts
had always acted upon the premise that Sikhs were Hindus and
that Hindu Law applied to them in the same way as it applied
to Jains in the absence of custom varying that Law. It was
observed :
"It appears to their Lordships to be clear
that in s. 331 the term "Hindu’ is used in the
same wide sense as in earlier enactments,
and includes Sikhs. if it be not so, then
Sikhs were, and are, in matters of
inheritance, governed by the Succession Act,
and Act based upon, and in the main embodying,
the English law; and it could not be seriously
suggested that such was the intention of the
legislature".
In Ambalal v. Keshav Bandhochand Gujar ( 3 ) the question
was whether Jains were governed by Hindu law of Inheritance
(Amendment) Act 1929 which applied to all persons governed
by Mitakshara as modified by the Mayukha. It was argued in
that case that the Indian Succession (Amendment) Act of 1929
speaks of Jains as well as Hindus and ss. 4 and 57 of the
Indian Succession Act 1925 also did the same. The Court
pointed out that s. 331 of the Indian Succession Act 1865
did not make any separate mention of Jains and even then it
had been held that the term ’Hindu’ included Jains. The
Hindu Wills Act of 1870 which applied to the territories
under the Lt. Governor of Bengal and the cities of Bombay
and Madras no doubt mentioned Jains as well as Hindus being
governed by certain sections of the
(1) I.L.R. 3 All. 55. (2) I.L.R. 31 Cal. 11.
(3) I.L.R. 1941 Bom. 250.
127
Succession Act of 1865 and the Indian Succession Act 1925
was a commodating Act which repealed the previous Act of
1865 as well as Hindu Wills Act of 1870. It was, therefore,
probably thought necessary ex-majore cautela to separately
mention the Jains in the consolidating measure. However, in
all the other enactments affecting the Hindu Law there was
no separate mention of Jains along with the Hindus. The
Jains were, therefore, governed by the Hindu Law of
Inheritance (Amendment) Act 1929. The mention of Jains
separately in Article 25 of the Constitution was noticed in
Pannalal v. Sita Bai(1) and it was observed that the framers
of the Constitution felt, having regard to the differences
in the two faiths that an express mention might be made of
all faiths ex-abundanti cautela and to put the matter beyond
all controversy, and that faith is one thing and law is
another and the Constitution could not be taken to have
undone the long series of decisions on the subject. Before
the amendment and codification of major branches of Hindu
law by the four statutes, i.e. The Hindu Marriage Act 1955,
the Hindu Succession Act 1956, the Hindu Minority and
Guardianship Act 1956, the Hindu Adoption and Maintenance
Act, 1956, the undisputed position was that the Jains were
governed by the Hindu law modified by custom and a Jain
joint family was a Hindu joint family with all the incidents
attached to such a family under the Hindu law. The
legislative practice also was to generally treat Jains as
included in the term ’Hindu’ in various statutory
enactments. Wherever Jains were mentioned in addition it
was only by way of abundant caution. The new statutes did
not change the situation and it is not possible how the High
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Court in the judgment under appeal pressed them into service
in support of its view. The fallacy underlying the
reasoning of the High Court is that the artificial field of
application of the law in those statutes shows that Jainism
is not treated even as a form or a development of Hinduism.
That is an erroneous approach. We are not concerned with
the question whether Jains are a sect of Hindus or Hindu
dissenters. Even if the religions are different, what is
common is that all those who are to be governed by the
provisions of these enactments are included in the term
’Hindu’. They are to be governed by the same rules relating
to marriage, succession, minority, guardianship, adoption
and maintenance as Hindus. The statutes thus accord
legislative recognition to the fact that even though Jains
may not be Hindus by religion they are to be governed by the
same laws as the Hindus. In this view of the matter the
expression ’Hindu undivided family’ Will certainly include
the ’Jain undivided family’. The latter class of family is
not known to law. The Jains are governed by all the
incidents relating to the Hindu joint family. Hindu
undivided
(1) I.L.R.1954 Nagpur 30.
128
family is a legal expression which has been employed in
taxation laws. It has a definite connotation and embodies
the meaning ascribed to the expression ’Hindu joint family’.
For the above reasons the appeal is allowed and the question
referred is answered in favour of the Revenue and against
the assessee. There will be no order as to costs in this
Court. The appeal by Certificate (CA 1686/68) being
defective for want of reasons is her-by dismissed.
K.B.N. Appeal allowed.
129