# [1966] 2 S.C.R. 755

- **Citation:** [1966] 2 S.C.R. 755
- **Court:** Supreme Court of India
- **Decided:** 1965-11-29
- **Case number:** Civil Appeal No. 853 of 1964
- **Bench:** K. SuBBA RAo, J. C. Shah, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-2-s-c-r-755-3750
- **Pages:** 6

## Headnote

/l!come- Tax Act,
1922, s. 3-Hindu
undivided
family-Whether·
comes into being on conception of son or on birth.
A son was born to the assessee, a Hindu, on December 11, 1952, and
it was common ground that the conception of the child must have taken
place sometime in March 1952. For the
assessment
year
1953-54
(accounting year April 1, 1952 to March 31,, 1953) the assessee claimed
that certain income received by him should be assessed as the income
of a Hindu undivided family, which, according to him had come into
existence in or about March 1952 when the son was conceived. The
Income Tax Officer however recognised the family as a Hindu undivided
family only from the date of the birth of the child. This view was upheld by the appellate authorities and the High Court, upon a reference,.
also answered the question against the assessee.
It was contended on behalf of the assessee that under the Income-tax
Act, a Hindu undivided family
is a separate unit and in determining·
whether a Hindu undivided family
exists or not, and if it exists, from
what date it has come into being, regard must be had to the p·rinciples.
of Hindu 'Law, for the Act does not lay down any principles on this.
point; that it is well settled and it is a
substantive rule of Hindu Law
that a son conceived has the same rights of property as a living son and'
that a joint Hindu family comes into existence from the date the son is
conceived.
HELD : The doctrine of Hindu Law that a son conceived is equal in.
many respects to a son actually in existence is not of universal application and it applies mainly for the purpose of determining the rights of"
property and safeguarding such rights of the son. This
doctrine does
not fit in with the scheme of the Income Tax Act and it could not have·
been the intention of the legislature to have
incorporated this spechtl'
doctrine into the Act. (758 F-OJ
In .t~e pr~sent_ case,. no rights of the son
would be affected by not
recognismg his existence for the purposes of s. 3 of the Act till he was
actually born.
Income-tax is a liability and it could not have been the·
intention of the legislature to impose a liability on unborn persons. (760
BJ
C.B.C. Deshmukh v. I. Mal/apa Chanbassappa A.LR. (1964) S.C. 510;
referred to.
Even if a Hindu undivided family was in existence towards the end·
of the accounting year, the whole income
received or accrued in the
accounting year did not thereby become the assessable income of the·
Hindu undivided family; till the child was born,
the income was
the
H
assessee's income. [760 DJ

## Text

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T. S. SRINIVASAN
v .
COMMISSIONER OF IJ."'COME TAX, MADRAS
November 29, 1965
[K. SuBBA RAo, J. C. SHAH AND S. M. SIKRI, JJ.]
/l!come- Tax Act,
1922, s. 3-Hindu
undivided
family-Whether·
comes into being on conception of son or on birth.
A son was born to the assessee, a Hindu, on December 11, 1952, and
it was common ground that the conception of the child must have taken
place sometime in March 1952. For the
assessment
year
1953-54
(accounting year April 1, 1952 to March 31,, 1953) the assessee claimed
that certain income received by him should be assessed as the income
of a Hindu undivided family, which, according to him had come into
existence in or about March 1952 when the son was conceived. The
Income Tax Officer however recognised the family as a Hindu undivided
family only from the date of the birth of the child. This view was upheld by the appellate authorities and the High Court, upon a reference,.
also answered the question against the assessee.
It was contended on behalf of the assessee that under the Income-tax
Act, a Hindu undivided family
is a separate unit and in determining·
whether a Hindu undivided family
exists or not, and if it exists, from
what date it has come into being, regard must be had to the p·rinciples.
of Hindu 'Law, for the Act does not lay down any principles on this.
point; that it is well settled and it is a
substantive rule of Hindu Law
that a son conceived has the same rights of property as a living son and'
that a joint Hindu family comes into existence from the date the son is
conceived.
HELD : The doctrine of Hindu Law that a son conceived is equal in.
many respects to a son actually in existence is not of universal application and it applies mainly for the purpose of determining the rights of"
property and safeguarding such rights of the son. This
doctrine does
not fit in with the scheme of the Income Tax Act and it could not have·
been the intention of the legislature to have
incorporated this spechtl'
doctrine into the Act. (758 F-OJ
In .t~e pr~sent_ case,. no rights of the son
would be affected by not
recognismg his existence for the purposes of s. 3 of the Act till he was
actually born.
Income-tax is a liability and it could not have been the·
intention of the legislature to impose a liability on unborn persons. (760
BJ
C.B.C. Deshmukh v. I. Mal/apa Chanbassappa A.LR. (1964) S.C. 510;
referred to.
Even if a Hindu undivided family was in existence towards the end·
of the accounting year, the whole income
received or accrued in the
accounting year did not thereby become the assessable income of the·
Hindu undivided family; till the child was born,
the income was
the
H
assessee's income. [760 DJ
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 853 of
1964.
'756
SUPREME
COURT
REPORTS
(1966] 2 S.C.R.
Appeal .from the Judgment and Order dated the 9th August,
A
1961 of the Madras High Court in Case Referred No. 86 of
1957.
A. V. Viswanatha Sastri, S. Swaminathan and R. Gopa/akrishnan, for the appellant.
C. K. Daphtary, Attorney-General, Gopal Singh, B. R. G. K.
B
Achar and R. N. Sachthey, for the respondent.
'
The Judgment of the Court was delivered by
Sikri, J. This appeal, by certificate of the High Court of
Madras, is directed against its judgment in a reference made to it c
under s. 66(1) of the Indian Income Tax Act, 1922, hereinafter
referred to as the Act, by the Income Tax Appellate Tribunal,
Madras.
The question referred to was "whether the assessment
·Of the income of the assessee, other than his salary in the hands
of the assessee, as an individual and not as a Hindu undivided
family till 1 lth December, 1952, for the assessment year 1953-54 D
is valid."
The question arose out of the following facts. The appellant,
.hereinafter referred to as the assessee, is the youngest son of T. V .
. Sundaram Ayyangar, who was the Karta of a Hindu undivided
family consisting of a number of persons. There was a partial
E
partition of the above family and 150 shares of Rs. l,000 each
in T. V. Sundaram Iyengar and sons Limited, a private limited·
.,company, were divided equally among the coparceners,
the
.assessee getting 25 shares of the value of 25,000.
With the
. aforesaid shares as nucleus, the assessee
acquired
houseproperties, shares and deposits up to March 31, 1952.
As the
F
assessee was also the Service Manager of the aforesaid private
limited company, he also received substantial remuneration.
The first son, named Venugopal, was born to the assessee on
December 11, 1952, and it is common ground that the conception of the child must have taken place sometime in March, 1952.
G
For the assessment year 1952-53, the assessee was assessed
as an individual with reference to all his sources of income. For
the assessment year 1953-54 (accounting year April 1, 1952 to
March 31, 1953) the assessee claimed that income from all
sources, except salary, should be assessed in the hands of H.U.F.,
consisting of himself and his son Venugopal, which according to
him had come into existence in or about March 1952 when
Venugopal was conceived.
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SRINIVASAN v. C.I.T. (Sikri, J.)
757
A
The Income Tax Officer, while admitting that a male child
acquires coparcenary rights in the family even from the date of
his conception, considered that this proposition applied only as
far as the minor's rights inter se other members were concerned,
and as far as the claims of the State or outsiders were concerned,
he thought that an unborn son would not come into the picture.
:B
Therefore, he recognised the family only from the date of the
birth of the child, viz., December 11, 1952.
The Appellate
Assistant Commissioner upheld his view and the assessee also
failed before the Appellate Tribunal. The High Court answered
the question against the assessee.
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Mr. A. V. Viswanatha Sastri, the learned counsel for the
assessee, contends that under the Act Hindu undivided family
is a separate unit and in determining whether a Hindu undivided
family exists or not, and if it exists, from what date it has come
into being, regard must be had to the principles of Hindu Law
for the Act does not lay down any principles regarding this
D
matter.
He then urges that it is well-settled that according to
Hindu Law, a son conceived has the same rights of property as
a living son, and this rule, he says, is not a matter of fiction but
a substantive rule of Hindu Law. He further says that it is wellsettled according to Hindu Law that joint Hindu family comes
into existence from the date a son is conceived, and as in this
E case the son was conceived in March 1952, the Hindu undivided
family was in existence from the beginning of the accounting
year 1952-53.
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The learned Attorney-General, who appears on behalf of the
Revenue, does not dispute the existence of the doctrine of Hindu
Law relied on by Mr. Sastri, but says that this doctrine applies
only for a special purpose, the purpose being to safeguard the
rights of the son to property, and that Hindu Law itself recognises
that this doctrine is not of universal application.
He urges, in
the alternative, that at any rate the Act is concerned with realities;
under the Act the person; to whom income accrues must be a
visible reality, and, he says, the only visible person who existed
up to December 11, 1952, was the assessee. He further says
that we would be introducing anomalies in the working of the
Act if this fiction is applied to the instant case.
In addition he
relies on the form of return of income tax which he says would
be difficult to fill if the return is filed before the birth of the son.
In C. B. C. Deshmukh v. l. Mal/appa Chahbasappa(') this
Court had occasion to consider the scope of the doctrine that
(I) A.l.R. 1964 S.C. 510.
758
SUPREME COURT REPORTS
[1966] 2 S.C.R.
uuder Hindu Law a son conceived or in his mother's womb is
It.
equal in many respects to a son actually in existence in the
matter of inheritance, partition, survivorship and the right to
impeach an alienation made by his father. But this Court refused
to extend it to adoption. Subba Rao, J., speaking for the Court,
observed:
~ ..
"But there' is an essential distinction between an
alienation, partition and inheritance on the one hand
and adoption on the other : his right to set aside an
alienation hinges on his secular right to secure his share
in the property belonging to the family, as he has a
right by birth in the joint family property and transac·
tions effected by the father in excess of his power when
he was in the embryo are voidable at his instance; but,
in the case of adoption, it secures mainly spiritual
benefit to the father and the power to adopt is conferred
on him to achieve that object.
The doctrine evolved
wholly for a secular purpose would be inappropriate to
a case of adoption.
We should be very reluctant to
extend it to adoption, as it would lead to many anomalies and in some events defeat the object of the conferment of the power itself. The scope of the power must
Ile reasonably construed so as to enable the donee of the
power to discharge his religious duty.
We, therefore,
hold that the existence of a son in embryo does not
invalidate an adoption."
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The question that arises is whether this doctrine of Hindu
Law can be applied for the purpose of determining the coming
into being of a Hindu undivided family as an assessable entity. F
As this Court held in C. B. C. Deshmukh v. I. Mal/appa Chanbasappa('), the doctrine is not of universal application and
it applies mainly for the purpose of determining rights to property and safeguarding such rights of the son.
It seems to us
that this doctrine does not fit in with the scheme of the Act, and
it could not have been the intention of the Legislature to have G
incorporated the special doctrine into the Act. Section 3 of the
Act charges the total income of the previous year of .every individual, Hindu undivided family, company and local authority,.
and of every firm and other association of persons or the partners
of the firm or the members of the association individually. Section 4 includes in the total income of any person all income,
profits and gains, inter a/ia, if such person is resident, which
(I) A.I.R. 1964 S.C. 510.
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SRINIVASAN v. C.I.T. (Sikri, J.)
759
accrue or arise or are deemed to accrue or arise to him in the
taxable territories during such year. Income can accrue or arise
day-to-day or at the end of the year, and it would be surprising
to say that for the purpose of the Act it is not known at a particular time to which entity income is accruing or arising. At the
relevant ti!l'c, under s. 22 of: the Act, the Income Tax Officer
was required to give notice by publication .. 1 the press and by
publication in the prescribed manner, requiring every person
whose total income in the previous year exceeded the maximum
amount which is not chargeable to income tax to furnish within
such period not· being less than sixty days as may be specified
in the notice, a return in the prescribed form and verified in
the prescribed manner, setting forth his total income and total
world income during that year.
Under sub-s. (2), the Income
Tax Officer could serve a notice upon a particular person requiring him to furnish within a period not less than 30 days a return
in the prescribed form.
The person had then to file a return. If
the contention of Mr. Sastri is right, in many cases an assessee
would not have been able to file a return.
Suppose the wife of
an assessee conceived in February, 1954, and his accounting
year was the year ending March 31, 1954. By June/July, 1954,
the assessee would not know whether he should file the return
as an individual or as Hindu undivided family because he would
not knew whether the child was going to be a son or a daughter .
However, if a conditional return was filed, the Income Tax Officer
would have to hold his hands and not assess till the child was
delivered.
Part IIIA of the prescribed form required the following particulars to be filled up in the case of a Hindu undivided
family:
Serial Name of members of the family
Relationship
Age at the
Remarks
No.
at the end of the previous year
end of the
who were entitled to claim
previous
partition
year
This form clearly proceeds on the basis that all members were
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in existence at the end of the previous year.
Has a son in the
womb at the end of the previous year and born in the assessment year any age at the end of the previous year ? Would It
have a name at the end of the previous year ? We filld it
extremely difficult to reconcile this doctrine of Hindu Law with
the aforesaid provisions of the Act.
We would not be justified
R in introducing uncertainties and anomalies in the working of the
Act by introducing this doctrine for the purpose of s. 3 of the
Act.
LSSupCI/66-2
760
SUPREME\
COURT REPORTS
[1966] 2 S.C.R.
Apart from the difficulty of reconciling this doctrine with the
A
scheme of the Act, Mr. Sastri has not been able to satisfy us
that any rights of the son are being affected by not recognising
his existence for the purposes of s. 3 of the Act till he is actually
born. Income-tax is a liability and it could not have been the
intention of the legislature to impose a liability on persons yet
unborn.
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Mr. Sastri contends in the alternative that what we are concerned with is the status at the end of the accounting year and
that at least in this case where the child was in existence at the
end of the accounting year, the status would be that of Hindu
undivided family.
This point was not raised before and the c
learned Attorney-General rightly objected to it being raised at
this stage. But even if a Hindu undivided family was in existence
towards the end of the accounting year, still the whole income
received or accrued in the accounting year did not thereby
become the assessable income of the Hindu undivided family.
Till the child was born the income which accrued to, or arose to,
D
or was received by the assessee was his income.
The Act disregards subsequent application of income and profits once they
have arisen. When the income and profits arose, they belonged
to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son,
which brought into existence a Hindu undivided family.
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In the result we agree with the High Court that the answer
to the quesiion must \Je in favour of the revenue.
The appeal
fails and is dismissed with costs.
Appeal dismissed.
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