C.S.P. Singh, J. - (1.) THE Income-tax Appellate Tribunal, Delhi Bench A ", at the instance of the Commissioner of Income-tax, U.P. II, Lucknow, referred the following questions of law for our decision for the assessment years 1955-56, 1956-57, 1957-58 and 1958-59: " (1) "Whether, on the facts and in the circumstances of the case, the receipt of maintenance allowance by the assessee from her husband was rightly held to be exempt under Section 4(3)(vii) of the Indian Income-tax Act, 1922 ? (2) If the answer to question No. (1) be in the negative, then, whether the entire receipt by the assessee was taxable when the agreement to live apart make provision for maintenance of the respondent as well as her two sons ? "
(2.) THE facts necessary for the decision of these questions may now be shortly stated. Shrimati Shanti Meattle, the assessee, was being assessed as an individual in respect of income from property, interest from bank and other sources. It appears that the relations between her and her husband were not cordial and resulted in frequent quarrels. THE husband and the wife in order to avoid deterioration of their relations agreed to live apart and an agreement for separation was executed between the parties on the 16th day of September, 1954. Under Clause (1) of that agreement, the assessee was given the option to live separate from her husband free from marital control and authority of the husband. Clause (2) thereof contained an agreement that neither the wife nor the husband shall molest or interfere with the other or bring a suit for the restitution of conjugal rights against the other. Clause (4) of the deed insured payment of an amount of Rs. 2,000 per month to the assessee for maintenance of herself and her two children till the assessee did not remarry and continued to perform the other terms and conditions of the deed. THE parties consented to the appointment of an arbitrator in respect of any dispute between the parties, and made the award binding on them. THE assessee received various amounts from her husband as maintenance during the year in question. THE Income-tax Officer took the view that inasmuch as the amounts were being received regularly and were based on the agreement dated September 16, 1954, which was an enforceable contract, the income was taxable in her hands, The Appellate Assistant Commissioner took the view that inasmuch as the amounts were not received by the assessee as member of a Hindu undivided family, nor was the money paid out of the income of any Hindu undivided family, the amount was liable to tax. He negatived the contention of the assessee that the receipt was of a casual nature and as, such not taxable. The further contention that the entire amount received could not be taxed in the hands of the assessee inasmuch as it represented an amount for the maintenance of her two children was also not accepted, inasmuch as the Appellate Assistant Commissioner took the view that the amount was received by the assessee solely and was liable to be included in her income alone. The Appellate Tribunal, however, took a contrary view and held that the agreement, on the basis of which it was said that payments were being received by the assessee was not enforceable, and that the payment depended upon the sweet will of the husband and could be stopped at any time and at best could be termed as "a windfall of a non-recurring nature", It purported to seek support from a Full Bench decision of this court in the case of Rani Amrit Kunwar v. Commissioner of Income-tax, 1946 14 ITR 561 [F.B.].. It was further of the opinion that inasmuch as the entire amount received was not meant for the assessee alone, the authorities were in error in including the whole of it in the assessee's taxable income. Before we answer the first question referred to us, it will be convenient to dispose of the second question. The revenue in order to bring the amount to tax has relied mainly on the deed of separation to show that the amount in question was income, inasmuch as it was paid on the basis of an enforceable contract between the parties. Assuming for the purpose of this question that the agreement was an enforceable one, it is clear from paragraph 4 of that deed that the entire amount of rupees two thousand, per month, received by the assessee was not paid out solely to her. The amount represented maintenance not only for the assessee, but also for her two children. In this situation it cannot be said that on account of the mere fact that the assessee received the entire amount, it could be taxed in its entirety in her hands. The amount representing the maintenance of her two sons was held in trust by her for the maintenance of her two children. It was impressed with an obligation to defray the maintenance charges of her two minor children and as such the mere act of receiving the money on behalf of her two children could not make the entire amount taxable in her hands. We are accordingly of the view that the entire amount received by the assessee as maintenance was not taxable solely in her hands.
(3.) THE first question is of some complexity. THE assessee along with her two children had started living separately from her husband. THE situation on the recitals contained in the deed was brought about on account of unhappy relations between the parties resulting in frequent quarrels. THE deed of separation was executed in order to prevent further deterioration in relations between the parties. Not only did it have the result of permitting the wife to live apart, but denied the husband access to the wife and also prevented him from filing a suit for restitution of conjugal rights. THE wife as a result of the deed was removed completely from marital control and authority of the husband. It is admitted that the payments which had been received by the assessee were on account of the agreement. The question arises as to whether, in these circumstances, the amount received by the wife could be treated as her income. The Tribunal, while holding that the amount aforesaid did not constitute the income of the assessee, was influenced to a great extent by the fact that the agreement was not enforceable in a court of law.;