Premhari Barman and others Vs. Commissioner of Taxation, East Pak. Dacca, 24 DLR (1972) 198

Case No: Reference Case No. 9 of 1961

Court: High Court Division,,

Advocate: Mohammad Habibur Rahman ,,

Citation: 24 DLR (1972) 198

Case Year: 1972

Appellant: Premhari Barman

Respondent: Commissioner of Taxation, East Pakistan, Dacca

Subject: Income Tax, Fiscal Law,

Delivery Date: 1970-8-5

Supreme Court
High Court Division
(Special Original Jurisdiction)
Maksum-ul-Hakim J.
Fazle Munim J.
Premhari  Barman  and others
Commissioner of Taxation, East Pak. Dacca (now Director of Taxation, E. Pak. Dacca)
August 5th, 1970.
Bengal Agricultural Income-Tax Act, 1944
Sections 30 (1) and 2(8)
Hindu Undivided Family— After deletion of interpretation clause under section 2(8) of the Act, Hindu undivided family means every such family governed by Mitakshara, Dayabhag, or any other school of Hindu law— Provisions of section 30 of the Act are equally applicable to members of Dayabhaga Hindu Family as to members of others Schools of Hindu law.…… (8&9)
Cases Referred to-
Kalyani Vithaldas vs. Commissioner of Income Tax. 64 IA 87; Sur Sundar Singh Majithia vs. The Commissioner of Income-Tax, CP and UP 1942 (10) ITR 457.
Lawyers Involved:
BN Chowdhury, Pradip Kumar Guha — For the Applicant.
Mohammad Habibur Rahman — For the Respondent.
Reference Case No. 9 of 1961.
Maksum Ul-Hakim J:
This is a case stated by the Agricultural Income Tax Tribunal under sub-section (2) of section 63 of the Agricultural Income-tax Act. The questions of law propounded by and referred to this Court are as follows:
"(I) Whether the provisions of Section 30 of the Bengal Agricultural Income Tax, Act, 1944 as adopted in East Pakistan are applicable to a Daya Bhaga Hindu Family claiming separate assessment after partition and separation.
(II) Whether in the facts and circumstances of the case viz, oral partition of Joint Family properties, separate possession and separate enjoyment of agricultural income in definite shares by the members, separate residence, separate funds, the Hindu undivided family has ceased to exist, as such, and can claim for separate assessment of Agricultural Income under section 30 of the Act."
2. The facts giving rise to this reference may be briefly stated as follows: One Bepar Chandra Barman died in 1947 leaving five sons amongst whom Maniram Barman (since deceased) was the eldest. These five sons inherited the property left by their father. After the death of Bepar Chandra Barman, Maniram Barman used to be assessed as an individual. But in respect of the three yeas of assessment under consideration, namely, 1951-52, 1952-53 and 1953-54 he was assessed as a 'Karta' of the Hindu undivided Family. The objection of the assessee was refused, up to the Agricultural Income-tax Appellate Tribunal.
3. It is admitted that the assessee is governed by the Daya Bhaga school of Hindu law and his case was that after the death of their father in the month of Agrahayan, 1354 BS the five brothers partitioned the joint property and since then they possessed their respective properties separately in separate sahams after effecting a partition by metes and bounds. At that time, no specific document or deed was executed and registered by the parties and the partition, it appears, was effected orally and by amicable arrangement. Six years thereafter on 3rd February 1954 the five brothers executed a regular deed of partition in terms of the arrangement arrived at in Agrahayan, 1354. BS and registered the same. It was, however, specifically mentioned therein that the actual partition was effected and put into operation in Agrahayan, 1354 BS. This deed of partition was placed before the Agricultural Income-tax authorities and it was contended that the Undivided Hindu Family was disrupted from 1948 (Agrahayan 1354 BS) and, as such, the assessee Bepar Chandra Barman was entitled to be assessed as an individual, the Revenue Officers beginning from the Agricultural Income-tax Officer upto the Appellate Tribunal maintained that this deed of partition was not relevant for the period prior to the year of execution of the document. The Tribunal observed:
"There is no satisfactory material before us from which it can be held that there had actually been an oral partition of the joint property by metes and bounds at any time before the deed of partition of 1360 BS. For the purpose of our present enquiry, the deed of partition does not appear to be quite relevant. This is because it was made after the assessment years relating to these appeals."
4. It was further found that until the deletion of clause (8) of section 2 of the Bengal Agricultural Income Tax Act the Hindus governed by the Dayabhaga School of Hindu Law were not needed to be considered as Hindu Undivided family as the interpretation clause clearly defined a Hindu undivided family as one which was governed by the Mitakshara Law. This definition clause embodied in clause (8) of Section 2 of this Act was deleted during this period and, as such, the Hindu undivided families of the Dayabhaga School also could then be regarded an assessed as such.
5. It was further observed that after this deletion the assessee was required to prove by positive material that the undivided family was disrupted and accordingly he was entitled to be assessed as an individual as required under section 30 of the Bengal Agricultural Income Tax Act
6. The application of the assessee for referring the above questions to this Court having been rejected by the Tribunal the assessee approached this Court. Mr. Imam Hossain Choudhury and Mr. Justice BA Siddiky (as their Lordships then were by their judgment dated 8.6.1962 accepted the applications of the assessee and directed the Tribunal to refer the above two questions to this Court. Accordingly, these two questions have been referred to us, after stating the case.
7. Sub-section (1) of section 30 of the Bengal Agricultural Income-Tax act runs as follows:
"(1) Where, at the time of making an assessment under section 25, it is claimed by or on behalf of any member of a Hindu undivided family hitherto assessed as undivided that a partition has taken place among members or groups of members of such family, the Taxation Officer shall make due enquiry thereunto and, if a certified copy of a decree of a competent Civil Court, for partition of the joint family property or a document purporting to show that there is separate possession and enjoyment of such property is produced, and in the case of a document other than a certified copy of a decree the Taxation Officer is satisfied that such document has been acted upon by the parties thereof, or if the Taxation Officer is otherwise satisfied that the Hindu undivided family has ceased to exist as such and the agricultural income is being enjoyed separately by the members or groups of the members of such family in definite shares, he shall record an order to that effect:
Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family."
8. After the deletion of the interpretation clause under sub-section (8) of section 2 of the Bengal Agricultural Income Tax Act, the term Hindu undivided family has to be understood in its ordinary meaning. Under that clause Hindu undivided family only meant a Hindu undivided family governed by the Mitakshara Law. This was a special interpretation attached to the term in view of this sub-section. As soon as this was deletied, it was obvious that 'Hindu undivided family" clearly meant every such family who are governed by Mitakshara, Dayabhaga or any other School of Hindu Law. This appears to be the plain effect of the deletion. In the case of Himangshu Chandra Chowdhury vs. Commissioner of Agricultural Income Tax, East Bengal, Asir, J. with whom Ispahani J. concurred observed as follows:
"In our view, the deletion of clause (8) of section 2 goes to signify that since 1st April, 1951 a Hindu undivided family, whether governed by Mitakshara, Dayabhaga or any other School of Hindu Law should be regarded and assessed as such for the purpose of the Bengal Agricultural Income-tax Act as applied to this part of the country."
9. The observation of their Lordships of the Judicial Committee in the case of Kalyani Vithaldas vs. Commissioner of Income  Tax,  Bengal,  64  1A  37 also supports this conclusion. It is, obvious, therefore, that the rights and liabilities, as has been conferred under section 30 of this Act on a member of Hindu undivided family is equally available to the members of a Dayabhaga Hindu family, in the same way as to the members of other schools of Hindu Law. In view of the above, our answer to the first question of law, referred to us, is in the affirmative.
10. With regard to the second question it is necessary, in the words of the Judicial Committee in the case of Sur Sundar Singh Majithia vs. The Commissioner of Income Tax, CP & UP 1942 (10) 1TR 457 "to descend from the realm of hypothesis to the region of fact". In the facts stated, the partition deed executed and registered on 3.2.1954 is mentioned. The partition deed clearly refers that six years before the execution and registration of the document the actual partition by metes and bound of the joint property was effected by the five brothers. It was not only an allocation of shares, but division and separate possession of specific sahams which was effected at that time. The Taxation authorities, however, refused to give effect to this document of partition on the ground that the same was not relevant for this period, as the written document was executed and registered after the period of assessment in question. In our opinion, a partition if effected bona-fide and in a legal manner, the same cannot be disregarded only because there was     no contemporaneous registered document to that effect. Article 325 of Mulla's Hindu Law, 11th Edition at page 425 runs as follows:
"(2) Partition by agreement— A partition may also be effect by an agreement between the parties."
It is true that the Agricultural Income-tax Officer is entitled to disbelieve the fact of partition amongst the members of the Hindu undivided family if there are some basis for the same. But only because the partition was effected by an agreement and the same was reduced to writing and registered subsequently, that cannot be a ground for disregarding such a partition.
11. Moreover, it is to be noticed that until the present period of assessment in question, the assessee was assessed as an individual. It is true that he could not be assessed otherwise in view of the existence of sub-section (8) of section 2. But section 30 itself stipulates that the opening clause applies to a member of Hindu undivided family who until then assessed as "undivided" family belonging to Dayabhaga School could have been a member of a family which was not joint. In a case of that nature, only because such a member belonged to a Dayabhaga School, as such, it could not be presumed that the family to which he belonged was an undivided family. In our opinion, section 30 if sought to be applied in the case of an assessee for assessing him as a member of undivided family, who until the deletion of sub-section (8), was assessed as an individual, was required to be shown as a member of an undivided family, on the basis of some material. This, however, was not available at all in this case and the Income-tax Officer relied on a principle that every member of a Hindu undivided family belonging to Dayabhaga School was to be presumed as a member of an undivided family. This presumption in our opinion was wrongly applied in the present case, in view of the fact that he was hitherto assessed as an individual. In view of the above facts, we are of the opinion that the assessee was entitled to claim of assessment as an individual. Accordingly, our answer to the second question is in the affirmative.
12. In view of the facts and circumstances of the present case, we direct the parties to bear their own costs.