JUDGMENT PATHAK J. - By this statement of the case under section 24(1) of the U.P. Agricultural Income-tax Act, 1948, the Revision Board has referred the following question to this court for decision :
"Whether on the facts of the case the Rajmata is a coparcener within the meaning of section 10, and, if she is a coparcener, whether her one-half share should be separately assessed to tax ?"
The assessees father, the previous Raja of Jaunpur, died some years ago. Before his death he constituted a joint Hindu family under the Mitakshara law with his wife and his son, and enjoyed an interest in the joint family property. It is not disputed that he died after the Hindu Womens Rights to Property Act, 1937, had come into force. Upon his death his widow the Rajmata became entitled to enjoy in the joint family property the same interest as he himself had by virtue of section 3(2) of that Act, and consequent to section 3(3) the same right to claim partition. Accordingly, in the event of partition she would be entitled to a one-half share of the joint family property.
For the assessment year 1358 Fasli, the Collector of Jaunpur assessed the assessee to agricultural income-tax on the entire agricultural income from the joint family property, repelling the contention that the Rajmata was a coparcener. Upon appeal the Commissioner held that the Rajmata was scoparcener, and the assessee was liable to tax only upon half of the entire agricultural income. The State of Uttar Pradesh proceeded in revision before the Revision Board contending that the Rajmata was not a coparcener. Upon this revision application pending before it, the Revision Board has made this reference.
Section 10 of the U.P. Agricultural Income-tax Act states :
"10. Assessment of income of undivided Hindu family. - Tax on agricultural income of an undivided Hindu family shall be so assessed that the share of income which a coparcener would receive upon partition of the family shall be treat as the separate income of each coparcener and shall be liable to tax as such : provided firstly, that a father and a son or a sons son howsoever low shall be deemed to be one coparcener for the purposer of this section, and provided, secondly, that the Income derived by a woman from her stridhana property shall not be be included in the agricultural income of the joint Hindu family."
The contention advanced on behalf of the assessee is that, by reason of the provisions of the Hindu womens Rights to Property Act, the Rajmata became a coparcener in the joint Hindu family upon the death of her husband.
To appreciate the contention, it is necessary to examine the concept in Hindu Law of a Mitakshara coparcenary and the basis underlying it.
The term "coparcener" was borrowed by Colebrooke from the English law for the purpose of describing the members of a joint Hindu family. A "coparcenary" in English law, is however, very different from the body to which the term was sought to be applied in Hindu Law, as was pointed out by the Privy Council in Baijnath Prasad Singh v. Tej Bali Singh. But as applied in the Hindu Law, it has now come to enjoy a well accepted and clearly defined meaning.
A joint Hindu family consists of all persons in lineal descent from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a narrower body comprised within the joint family. It consists of those who take by birth an interest in the joint family property. An attempt to explain the origin of this principle was made by Chandavarkar. J. in Bai Parson v. Bai Somli, where he observed :
"One of the cardinal principles of Hindu Law, borrowed from its shastras, is that a son is his father reborn. This principle rests on a passage from the Vedas quoted by Baudhayana, in which a father thus addresses his son : From my several limbs thou art distilled; from my heart thou art produced; thou art indeed myself but denominated son. Every son is, therefore, identified in interest with his father and all the sons together with him constitute one body, so to stay, in the eye and for the purposes of law and the shastras. . . . . . ."
The coparcenary is limited to the holder of the joint family property and to those males in unbroken male descent who are not removed from him by more than three degrees. While discussing this feature of the coparcenary the Privy Council in Masit Ullah v. Damodar Prasad quoted with approval the following passage from Mayne :
"The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the three generations next to the owner in unbroken male descent. Therefore, if a man has sons, grandsons and great-grandsons living, all of them constitute a single coparcenary with himself, every one of these descendants is entitled to offer the funeral cake to him, and every one of them obtains by birth an interest in his property."
Why the coparcenary is so limited is to be found in the reason that it is only descendants up to three degrees who can offer spiritual ministration to an ancestor.
One of the principal reasons for adoption among the Hindu is to provide a son for the purpose of offering funeral cakes and libations of water to the means of the adopter and his ancestors : see Bal Gangadhar Tilak v. Shriniwas Pandit. A text quoted in the Dattak Mimamsa declares that a son is adopted "for the sake of the funeral cake, water and solemn rites, and for the celebrity of his name". Now it is important to note that only a male can be adopted; the adoption of a female is invalid : see Gangabai v. Anant.
An adopted son becomes a member of the coparcenary and his position has been accurately described by R. C. Mitter J. in Uma Shunker Moitro v. Kali Komul Mozumdar, as effecting "his complete substitution into the adopters family as if he were born in it", a statement of the law which received the approval of the Privy Council in Nagindas Bhugwandas v. Bachoo Hurkissondas Joint family property has been divided into two classes, sapratibandhadaya and sapratibandhadaya, or, as it is now generally referred to, unobstructed heritage and obstructed heritage. As cited by Mayne, the Mitakshara explains this division as follows :
"The wealth of the father or the paternal grandfather becomes the property of his sons or his grandsons, in right of their being his sons or his grandsons and that is an inheritance not liable to obstruction. But property devolves on parents or uncles, brothers or the rest, upon the demise of the owner, if there be no male issue : and thus the actual existence of a son, and the survival of the owner are impediments to the succession; and on their ceasing their property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstructions."
It is by reason of his birth that a member acquires interest in unobstructed heritage; in obstructed heritage he acquires interest upon the death of the last owner dying without leaving male issue.
Another rule which applies only to a coparcener in Hindu Law is the devolution of joint family property by survivorship. This is one of the accepted consequences of an interest in unobstructed heritage. Unobstructed heritage devolves by survivorship; obstructed heritage descends by succession.
The essential characteristics of a Mitakshara coparcenary were concisely summarised by Rangnekar J. in Commissioner of Income-tax v. Gomedalli Lakshminarayan :
"A Hindu coparcenary includes only those makes male members who take by birth an interest in the coparcenary property. This is what is known as apratibandhadaya or unobstructed heritage., which devolves by survivorship. They are the generations next to the last holder in unbroken male descent."
From the foregoing discussion it will be apparent that under the Hindu Law a female cannot be a coparcener. What Mayne describes as "the twin principles " of a right vested by birth and of unobstructed heritage are not available to her and, indeed, from the very nature of things, could not be. the principle recognising a right in property by birth points to a male as the possessor of that right, an interest in unobstructed heritage could belong only to the male members limited to three generations next to the last holder, who alone could offer the funeral cake and libations of water, that being also the object behind the adoption of a male to the exclusion of the female. These primary considerations stemmed from the fundamental position occupied by the male in the socio-legal structure of the ancient Hindu way of life.
One further principle may be noticed. There is a clear distinction between the membership of a coparcenary and the enjoyment of interest in the joint family property. The two are not identical. Membership of the coparcenary pertains to status; from that status flow a number of rights, one of them being an interest in joint family property. Mayne points out :
"It is now well established law that the coparceners in a joint family can by agreement amongst themselves separate and cease to be a joint family and on separation are entitled to partition the joint family property amongst themselves."
Reference may be made to the principle propounded by Nilkantha the author of the Vyavahara Mayukha, that "even when there is a total absence of common property, partition is effected by the mere declaration I am separate from thee, for partition is a particular condition of the mind, and the declaration is indicative of the same."
See also Girja Bai v. Sadashiv Dhundiraj where this principle has been referred to.
We may now examine whether under the provision of the Hindu Womens Rights to Property Act a Hindu widow becomes a coparcener.
The preamble of the Act recites that the purpose of the legislation is "to give better rights to women in respect of property." Sub-section (2) and (3) of section 3 declare :
"3. (2) When a Hindu governed by any school of Hindu Law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate. provided however that she shall have the same right of claiming partition as a male owner."
It is important to note that what the legislation confers upon a Hindu widow is only an interest in the joint family property. the act does not say that she has also a right in the coparcenary status. It stops short of saying so. And this, though the view, widely expressed by jurists in the Hindu Law, that a person becomes a coparcener by reason of his birth was firmly established as an indisputable proposition of law. If the intention of the legislature had been to grant to the widow the status of a coparcener, it would have clearly stated so, and not left it to be inferred.
This question, whether the Act clothed the Hindu widow with the status of a coparcener has arisen before the courts repeatedly.
In V. M. N. Radha Ammal v. Commissioner of Income-tax, Satyanarayana Rao J. observed that :
"All the rights conferred by the Act upon a Hindu widow either individually or cumulatively do not have the effect of conferring upon the widow the status of a coparcener in the family."
So also in Rathinasabapathy Pillai v. Saraswathi Ammal, it was pointed out that :
". . . . . her position or status in the joint family is not in any way affected or varied by the enactment. She continues to be a member of the joint family and does not become a coparcener, however much she might have become entitled to the interest which her husband possessed in those properties."
In Jonnagadla Seethamma v. Jonnagadla Veeranna Chetty, Rajamannar C.J. observed :
"She was of course not a coparcener before her husbandss death and she was not one afterwards. . . . . . In our opinion the status of a Hindu widow of a deceased member of a joint family governed by the Mitakshara under the provisions of the Act is not that a coparcener, but that of a member of the joint family with certain special statutory rights";
and in Radha Ram Lal v. Jang Bahadur Singh it was emphasised that the Act "does not operate to alter the Hindu Law of the Joint family so as to make her member of the coparcenary.. . .. The proviso under sub-section (3) would seem to indicate that a mere devolution of the husbands interest would not otherwise affect the joint family status as such or invest the widow with the rights of a male coparcener other than those specially conferred upon her."
The impact of the Act upon the existing Hindu Law was succinctly analysed by Gajendragadkar J. in Shivappa Laxman v. Yellawa; he also came to the same conclusion that under the Act a Hindu widow does not become a coparcener.
The question was also raised in Kailash Chandra v. Mt. Shri Devi, but was not decided.
For the assessee great reliance has been placed upon the decision in Manorama Bai v. Rama Bai, where a Bench of the Madras High Court expressed the view that because a Hindu widow enjoys the same interest in the joint family property, which her deceased husband had, she becomes coparcener even as he was. With respect upon the several consideration to which we have adverted above we fail to share the view.
In our judgment therefore a Hindu widow, in a joint family governed by the Mitakshara law, acquires an interest in the joint family property by virtue of section 3(2) of the Hindu Womens Rights to property Act, 1937, but does not become a coparcener.
It is then contended that the word "coparcener" in section 10 of the U.P. Agricultural Income-tax Act must be construed to mean a co-share, and it is urged that inasmuch as the coparceners (as understood in Hindu law) as well as the Hindu widow are jointly interested in the joint family property they are co-shares in that property, and, therefore, the share which would fall to the Hindu widow upon partition must be considered under section 10 on the same footing as shares falling to the other co-shares. We cannot accede to this contention.
The word "coparcener" is not defined in the Act, and there is nothing to indicate that the word "coparcener" bears a meaning different from that embraced by it under the Hindu law. On the Contrary, as it occurs in section 10 which makes provision for the mode of taxing the agricultural income of a joint Hindu family, the legal connotation of that word should be prima facie be the same as in the Hindu Law. Moreover the interest of happens is that the right of the coparceners to take by survivorship which was in abeyance so long as the widow was alive comes into operation the moments she dies : Subba Rao v. Krisha Prasadam.
An instance demonstrating how the agricultural income of co-shares is to be taxed is provided by the provisions of section 11 of the Act. Section 11 sets out the manner of taxing the agricultural income of persons who are jointly interested in the land or in the agricultural income derived therefrom and who have appointed a common manager for holding the land on their behalf. In W. O. Holdsworth v. State of U.P. the Supreme Court, while interpreting section 11 pointed out that the terms "jointly interested" is well known in law and predicates an undivided interest in the land or in agricultural income derived therefrom as distinct from a separate or an individual interest therein.
If the legislature intended by the word "coparcener" under section 10 to mean "co-sharer", it would have said so as clearly as it did in section 11.
We are of the view that the word "coparcener" under section 10 of the U.P. Agricultural Income-tax Act bears the same connotation as it does in the Hindu Law, and therefore, the Rajmata is not a "coparcener" within the meaning of section 10.
Accordingly the first part of the question referred must be answered in the negative. That being so, the second part of the question does not call for an answer.
We direct that a copy of this judgment under the seal of the court and the signature of the Registrar shall be sent to the Revision Board.
The State is entitled to its costs, which we assessee at Rs. 100. Counsels fee is also assessed at Rs. 100 Reference answered accordingly.