BYOMKESH CHAKRAVARTY Vs. COMMISSIONER OF INCOME TAX
LAWS(PAT)-1960-4-6
HIGH COURT OF PATNA
Decided on April 20,1960

BYOMKESH CHAKRAVARTY Appellant
VERSUS
COMMISSIONER OF INCOME-TAX, BIHAR AND ORISSA. Respondents

JUDGEMENT

- (1.)IN this case the assessee is a Hindu undivided family governed by the Dayabhaga school of Hindu law. It appears that one Girish Chandra Chakravarty died leaving a widow Nidhubala, a son Byomkesh Chakravarty and a widow of a predeceased son Govind Chakravarty called Gouribala and a grandson Samarendra, son of Gouribala. The assessee claimed before the INcome-tax Officer that it was entitled to a higher exemption limit under the First Schedule to section 2 of the INdian Finance Act, 1955.
This schedule provides that exempt limit shall be -

(i) in the case of every Hindu undivided family which as at the end of the previous year had -

(a) at least two members entitled to claim partition... 8,400

(b) at least four members entitled to claim partition...12,600

Provided that in the case referred to in sub-clause (a) none of the members and in the case referred to in sub-clause (b) none of the minimum number of four members, -

(a) is less than eighteen years of age, or

(b) is lineally descended from another member or along with another member is lineally descended from any other living member of the family not entitled to claim partition.

(2.)THE Income-tax Officer rejected the contention of the assessee, and his view has been upheld in appeal by the Appellate Assistant Commissioner. THE same view has been taken by the Appellate Tribunal which also dismissed the appeal of the assessee.
Under section 66(1) of the Indian Income-tax Act the Income-tax Appellate Tribunal has submitted the following question of law for determination by the High Court :

"Whether on the facts and the circumstances of the case, the assessees case was covered by the proviso of the First Schedule to section 2 of the Indian Finance Act of 1955 ?"

It is not disputed in the present case that there are four members of the Hindu undivided family entitled to claim partition, namely, Nidhubala, Byomkesh, Gouribala and Samarendra. It is also not disputed that all these four members are over eighteen years of age. The dispute is concerning the application of clause (b) of the proviso which requires for the grant of the exemption limit that none of the four members entitled to claim partition "should be lineally descended from another member." The argument put forward on behalf of the Income-tax Department is that Byomkesh is lineally descended from Nidhubala and Samarendra is likewise leneally descended from Gouribala. It was, however, argued by learned counsel on behalf of the assessee that a female member of the Hindu Family like Nidhubala or Gouribala cannot be a source of lineal descent within the meaning of the First Schedule. We do not accept this argument of the assessee as correct. Even under the Hindu law a female can form a line of descent with respect of her stridhan property. In our opinion there is no reason why a son should not be "lineally descended" from his mother within the meaning of condition (b) of clause (i) of the proviso to Part I of the First Schedule of the Finance Act. This view is supported by the latter part of clause (b) wherein the words used are "lineally descended" from any other living member of the family not entitled to claim partition. The language of this clause clearly shows that lineal descent is possible from female members who may not be entitled to claim partition of joint family property. In Jowitts Dictionary of English Law the expression "descent" is explained as one of the two chief methods of acquiring an estate in lands before 1926. Descent is what took place when land or some interest in land or other realty belonging to a person passed on his death intestate to some one related to him by consanguinity, either directly or by reference to some other person, according to certain rules of law. The expression "lineal descent" is defined in the same treatise as "the descent of an estate from ancestor to heir in a right line" (Co. Litt. 13b, 237a). When the law speaks of "lineal descendant", the intention is that a person must be descended in a right line without any deviation as from father to son, grandson, great grandson. Similarly, the "descent" is lineal if the property goes from mother to son, grandson and great grandson, because the descent is in the right line without any deviation. This view is supported by a decision of the Full Bench of Rajasthan High Court in Commissioner of Income-tax v. Dhannalal Devilal in which it was held that where a Hindu undivided family consisted of two minor sons, their widowed mother and widowed grandmother, the minors were "lineal descendants" of the mother, and, therefore, the family was not entitled to the higher limit of exemption from tax provided in the limit clause to the proviso of Part I(A) of Schedule I of the Finance Act of 1951. It was further held in that case that a son or a grandson was a "lineal descendant" of his mother or grandmother, respectively, irrespective of the question whether the mother or the grandmother can form a line of succession in Hindu law. In our opinion, the principle of this decision is correct, and applying this principle to the present case, we hold that the Appellate Tribunal was right in making the view that the Hindu undivided family cannot get the benefit of the higher exemption limit of Rs. 12,600 under the First Schedule. We accordingly answer the question of law referred to the High Court against the assessee and in favour of the Income-tax Department. The assessee pay the costs of this reference. Hearing fee Rs. 250.

Reference answered accordingly.



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