# Raja Bejoy Singh Dudhuria v. C.l.T., Bengal, 1 l.T.R. 135 and

- **Citation:** [1972] 1 S.C.R. 1000
- **Court:** Supreme Court of India
- **Decided:** 1971-10-06
- **Case number:** Civil Appeal No. 266 of 1969
- **Bench:** K. S. Hegde, A. N. Grover, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raja-bejoy-singh-dudhuria-v-c-l-t-bengal-1-l-t-r-135-and-5316
- **Pages:** 10

## Headnote

Kero/a Agric11lt11ral /11co111cMtax Act, 1950, s. 9(1)-Property allot1c,1
to a n1en1ber of fcuni/y-Inco111e lltilised for discllarging oh/igations of
assess<'e-When deerned to be inco111c of fa111i/y as assessee.
The asscssce \Vas a Hindu undivided family of \vhich the ;,ippellant '"''1~
ll
the Karnavan.
It possessed agricultural properties.
There ~·as a family
C
:-.cttlcm1:nt a1nong all the members of the family then living.
The sctth>
mcnt allotted some properties to some of the n1alc members but did not
provide for their devolution.
Also the joint status of the mcmhL"rs wa~
not disrupted an<l the properties allotted for the enjoyment of the variou~
members of the family continu,,d to be the properties of the family.
The
liability to maintain the other male members and the responsibility of
performing the marriages of- the female men1bers continued to he that
;)f the Karnavan.
He was also responsible for the payment of lanJ
D
rL'venuc in respect of the family properties excepting some items.
On the question \\.rhethcr the income of the properties put in po..,ses.:;io1i
of the male members under the settle1nent continued to be the incon1c ol
the famny and therefore liahlc to tax undc'r the Kerala Agricultural
Income-tax Act, 1950, the department. Trihunal :-ind the High Co11r1 on
reference, held against the assessee.
Dismissing the appeal to this Court,
HELD : Section 9(1) of the Act is simi!Jr to s. 16( I) (c) of the
lncome-tax Act, 1921.
Under the latter section the
test is that ii
the
income iD dispute is considered as having been applied to discharge an
ohligation of the asscsscc, the same is liable
to
he included in
the
;1sscssuble income of the assessee. but if on the other hand the same had
hecn diverted by an ove'rriding charge then it is not liable to lie so
included, as it ceases to be the assessee's incon1i:. [1006 A-Bl
In the present case, the arrangen1cnt only provided for maintenance
and did not give any absolute right in any portion of the family proper~
ties to any one.
It thus conferred benefit on the family inasmuch us it
was absolved of the responsibility of n1aintaining its men1bers. [1005 B-· -C.
G-HJ
Further, it was not even a permanent arrangement and was revocable
if there was any substantial change in the circumstances of the 1 amily.
The properties would go back to thi:: possession of the Karnavan on the
death of the member to whom the property was allotted. [1005 C. D, El
E
F
G
The n1embers of the family received the income of thte variciuc, pro~
perties allotted to them on behalf of the family, and applied the s•mc in
II
discharge of an obligation of the family.
Therefore, the income I<''"""
reached the hands of the family as soon as it rcachcJ the hand" ._-,, ;:nv
of its members. [1008 F-HJ
A
v. v. VARMA v. COMMR. A.I.T. (Hegde, l.)
1001
Hence, under s. 9(1) of the Act, the income should be deemed to be
that of the assessee. [1005 F-GJ
Raja Bejoy Singh Dudhuria v. C.l.T., Bengal, 1 l.T.R. 135 and
Mullick v. C.l.T., Bengal, 6 LT.R. 206, explained and applied.
C.l.T., Bombay City v. Sitddas Tirathdas, 41 I.T.R. 367, followed.
B
C.l.T., Bomba,v v. Makanii Lalji, 5 I.T.R. 539 and C./.T., Bombay
City v. Ratilal Natlwlal, 25 l.T.R. 426, referred to.

## Text

l 000
V. VENUGOPALA VARMA RAJAH
1'
COMMISSIONER,
AGRICULTURAL
INCOME
t'AX,
TRIVANDRUM, KERAL\
October 6, 1971
[K. S. HEGDE, A. N. GROVER AND H. R. KHANNA. JJ.]
Kero/a Agric11lt11ral /11co111cMtax Act, 1950, s. 9(1)-Property allot1c,1
to a n1en1ber of fcuni/y-Inco111e lltilised for discllarging oh/igations of
assess<'e-When deerned to be inco111c of fa111i/y as assessee.
The asscssce \Vas a Hindu undivided family of \vhich the ;,ippellant '"''1~
ll
the Karnavan.
It possessed agricultural properties.
There ~·as a family
C
:-.cttlcm1:nt a1nong all the members of the family then living.
The sctth>
mcnt allotted some properties to some of the n1alc members but did not
provide for their devolution.
Also the joint status of the mcmhL"rs wa~
not disrupted an<l the properties allotted for the enjoyment of the variou~
members of the family continu,,d to be the properties of the family.
The
liability to maintain the other male members and the responsibility of
performing the marriages of- the female men1bers continued to he that
;)f the Karnavan.
He was also responsible for the payment of lanJ
D
rL'venuc in respect of the family properties excepting some items.
On the question \\.rhethcr the income of the properties put in po..,ses.:;io1i
of the male members under the settle1nent continued to be the incon1c ol
the famny and therefore liahlc to tax undc'r the Kerala Agricultural
Income-tax Act, 1950, the department. Trihunal :-ind the High Co11r1 on
reference, held against the assessee.
Dismissing the appeal to this Court,
HELD : Section 9(1) of the Act is simi!Jr to s. 16( I) (c) of the
lncome-tax Act, 1921.
Under the latter section the
test is that ii
the
income iD dispute is considered as having been applied to discharge an
ohligation of the asscsscc, the same is liable
to
he included in
the
;1sscssuble income of the assessee. but if on the other hand the same had
hecn diverted by an ove'rriding charge then it is not liable to lie so
included, as it ceases to be the assessee's incon1i:. [1006 A-Bl
In the present case, the arrangen1cnt only provided for maintenance
and did not give any absolute right in any portion of the family proper~
ties to any one.
It thus conferred benefit on the family inasmuch us it
was absolved of the responsibility of n1aintaining its men1bers. [1005 B-· -C.
G-HJ
Further, it was not even a permanent arrangement and was revocable
if there was any substantial change in the circumstances of the 1 amily.
The properties would go back to thi:: possession of the Karnavan on the
death of the member to whom the property was allotted. [1005 C. D, El
E
F
G
The n1embers of the family received the income of thte variciuc, pro~
perties allotted to them on behalf of the family, and applied the s•mc in
II
discharge of an obligation of the family.
Therefore, the income I<''"""
reached the hands of the family as soon as it rcachcJ the hand" ._-,, ;:nv
of its members. [1008 F-HJ
A
v. v. VARMA v. COMMR. A.I.T. (Hegde, l.)
1001
Hence, under s. 9(1) of the Act, the income should be deemed to be
that of the assessee. [1005 F-GJ
Raja Bejoy Singh Dudhuria v. C.l.T., Bengal, 1 l.T.R. 135 and
Mullick v. C.l.T., Bengal, 6 LT.R. 206, explained and applied.
C.l.T., Bombay City v. Sitddas Tirathdas, 41 I.T.R. 367, followed.
B
C.l.T., Bomba,v v. Makanii Lalji, 5 I.T.R. 539 and C./.T., Bombay
City v. Ratilal Natlwlal, 25 l.T.R. 426, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 266 of
1969.
Appeal by special leave from the judgment and order dated
C August 16, 1967 of the Kerala High Court in Income-tax Referred
Case No. 44 of 1966.
D
C. K. Viswanatha Iyer and K. Jayaram, for the appellant.
V. A. Seyid Muhammad and A.G. Pudissery, for the respo,ndent.
The Judgment of the Court was delivered by
. Hegde,. J. The appellant, Venugopala Varma Rajah is the
present Ra1ah of t~e Vengunad Swaroopan in Palghat District,
Kerala State.
He 1s the Karnavan of his Tarwad.
He will be
lliireinafter referred to as 1he assessee. The predecessor of the
E
appellant, as the then Karnavan of the family,
submitted the
return for the assessment year 1959-60 under the Kerala Agricultural Income-tax Act (which will hereinafter be referred to as the
Act) showing a gross income of Rs.
1,21,912/-
and a net
income of Rs. 84,065/60 P.
That represented the income from
the properties held by him under the family Karar dated May 29,
F
1909.
The Agricultural Income-tax
Officer
overruling
the
objection of the assessee included in the income returned, the
income of the properties which had been put in possession of the
junior members of the family under the aforementioned Karar of
1909. The net income so computed was Rs. 2,32,957 /- and a
tax of Rs. 1,30,672/35 P. was imposed.
In appeal the Appellate
Authority excluded from the taxable !ncome th~ income of . !he
properties allotted to the "Rani Group ' but sustained the additton
G of the income of the properties allotted for the enjoyment of the
male members.
Aggrieved by the order of the Appellate Authority, the assessee took up the matter in second appeal to . the
Appellate Tribunal of the Agricultural Income-tax. . T,he Tnbunal rejected the contention of the assessee and dismissed the
appeal.
Thereafter at the instance of the assessee, it stated a
H . case under s. 60( 1) of the Act and submitted to the High Court'
for its opinion three questions of law namely :
12-Lll9SupCI/72
1002
SUPREME COURT REPORTS
[1972] l S.C.R.
"(1) Whether the findings of the Tribunal that the
family karar of 1909 does not constitute a
diversion of family
income to the various
allottees thereunder is correct ?
( 2) Whether the findings of the Tribunal that the
provisions of sub-section (1) of sec. 9 of the
Act are .applicable only to cases of diversion of
income and not otherwise is correct ?
( 3.) Whether the findings of the Tribunal that the
provisions of sub-sec. ( 1) of sec. 9 of the Act
are not applicable to the facts of this case are
correct r
Questions Nos. 2 and 3, in our opinion, do not bring out the
import of sec. 9 (1) correctly but it is not necessary to go into that
aspect as our decision covers the real point in issue.
A
B
c
The Reference originally came up for hearing before a
Division Bench but as the questions arising for decision were
D
considered to be of importance, the same was referred to a Full
Bench of three judges.
The High Court by its judgment dated
August 16, 1967 answered Question Nos. 1 and 2 against the
assessee. It did not answer the third question as it was of the
view that answer to that question was unnecessary in view of its
findings on Questions Nos. 1 and 2.
Thereafter this appeal was
E
brought by certificate.
The assessee in this case is the H.U.F. of which the appellant
was the Karnavan at the relevant time.
The question for decision is whether the income of the properties put in possession of
the male members under the Karar of 1909 continues to be the
income of the family.
At present we are not concerned with the
F
income of the properties put in possession of the "Rani Group"
in view of the decision of the Appellate Authority which had not
been appealed against. If the income in dispute continues to be
the income of the family then the revenue is justified in bringing
the same to tax under the provisions of the Act.
On the other
hand if that income has ceased to be the income of the family,
G
then the same cannot be brought to tax in the hands of the
assessee.
Therefore, the sole question is whether that income is
the income of the family ?
Section 9 of the Act provides :
"9 ( 1) . In computing the total agricultural income
of an assessee all agricultural income arising to any
H
person by virtue of a settlement or disposition, whether
revocable or not, and whether effected before or after
A
B
c
D
E
F
G
H
v. v. VARMA v. COMMR. A.LT. (Hegde, J.)
1003
the commencement of this Act, from asset remaining
the property of the settlor or disponer shall be deemed
to be the agricultural income of the settlor or disponer
and all agricultural income arising to any person by
virtue of a revocable transf.er of asset shall be deemed to
b~ the agricultural income of the transferor :
Provided that for the purpose of this sub-section
a settlement, disposition or transfer shall be deemed to
be revocable if it contains any provision for the transfer
directly or indirectly of the
agricultural income
or
asset to the scttlor, disponer or transferor or in any way
gives the settlor, disponer or transferor a right to reassume
power directly or indirectly over the agricultural income
or assets :
Provided furthey that the expression settlement,
disposition shall, for the purposes of the sub-section
include any disposition trust, covenant; agreement or
arrangement and the expression "settlor or disponer"
in relation to a settlement or disposition shall include
any person by whom the settlement or disposition was
made:
Provided also that this sub-section shall not apply
to any agricultural income arising to any person by
virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the lifetime of the person and from which agricultural income
the settlor or disponer derives no direct or indirect benefit but that the settlor shall ~ liable to be assessed on
the said agricultural income as and when the power to
revoke arises to him.''
A Hindu Undivided Family is a person within the meaning of
s. 2(m) of the Act.
.
We shall now proceed to examine the nature of the Karar
entered into in 1909.
The family of the asses see appears to
have been one of the premier land holding families in Malabar.
It appears to have had agricultural properties in various places.
To the Karar in question all the then living members
( 12
in
number) of the family were parties.
The properties mentioned
in 'A' Sch. to the Karar were set apart for the maintenance, education and other expenses of the female and male members residing in Kalari Kovilagom which is otherwise known as "Rani
Group".
Under the Karar, Karnavan of the Tarwad was to pe;-
form the marriage ceremonies of the female members of the
Tarwad in accordance with the prevailing conditions and to meet
1004
SUPREME COURT REPORTS
[1972] 1 s.c.R
A
the expenses thereof.
All other expenses of female
and male
members residing in Kalari are to be met from the income of the
'A' Sch. properties.
The members residing in the Kalari have no
right to alienate or encumber the properties allotted to them and
all government revenu·e due in respect of those properties should
be paid by them.
Party No. 2, the second senior most member in the family was
to be given 7 ,000 paras of paddy annually for his maintenance
and for this purpose paddy lands yielding 3,500 paras of paddy
shown in 'B' Sch. were made over to his possession and Party
No. 1, Karnavan of the Tarwad was directed to give
to Party
No. 2 from Malayalam era 1085 onwards 3,500 paras of paddy.
Further the Karnavan was directed
that he
should redeem
"Karukakode Challa Nilam" and make over the same to Party
No. 2, but after making over the same to Party No. 2, he was
not to pay 3,500 paras of paddy referred to earlier.
B
c
"C" Sch. properties yielding an income of 4,750 paras of
paddy were allotted for the enjoyment of Party No. 3.
He was .D
required to maintain himself from out of their income.
Properties shown in 'D' Sch. were set apart for the maintenance of Party No. 4.
The land-revenue of B, C and D Sch.
properties was required to be paid by the Karnavan of the tarwad.
On the death of Party No. 2 or on his becoming Karnavan of the
family, Party No. 3 was to take over the properties allotted for
E
the maintenance of Party No. 2 and Party No. ~ was to take over
the properties for the maintenance of Party No. 3.
The Karar
prohibited the persons who were in possession of the properties
allotted for their enjoyment from alienating or encumbering those
properties, and if in contravention of those terms, they alienated
any of those properties, the Karnavan was entitled to resume the
F
properties treating the alienation as void.
Clause 18 of the
Karar prohibited the parties in possession of the properties from
cutting and selling the kuzhikoors or dismantling the buildings in
the properties in their possession.
Clause 19 of the Karar prohibited the parties from enhancing the munpattom amounts due
to fu~ tenan1. Clause 6 of the Karar provided itliat all the male
G
members living in the Kalari, on completing the age of 21 sliould
leave the Kalari and thereafter the Kamavan should make arrangements for their maintenance.
Karar does not stipulate what
arrangement he should make for their maintenance.
Therefore
it follows that he may maintain them either in the Tarwad house
or give them maintenance allowance either in the shape of paddy
or cash. It may also be noted ·that the Karar does not provide as to what 41/0uld happen if the number of members in the
Tarwad substantially increases.
One other thing that has got to
H
A
B
c
D
E
v. v. VARMA v. COMMR. A.I.T. (Hegde, J.)
1005
be noted is that the Karar is silent as to what would happen to the
properties shown in Schs. B, C and D after Parties Nos. 2, 3 and
4 die, all of whom, we were told have died.
Hence Kamavan
can take pos~ession of them on behalf of the family after their
death.
On an examination of the various clauses in the Karar, it is
obvious that the joint status of the parties was not disrupted.
The
arrangement made in· the Karar was only an arrangement for providing maintenance.
No party was given any absolute right in
any portion of the family properties.
The properties mentioned
in the Karar continued to be the properties of the family.
The
arrangement made under the Karar cannot even be considered as
a permanent arrangement.
The properties were not divided on
the basis of Thavazies.
The liability to' maintain the male
members, aged more than 21 years excepting Parties Nos. 2, 3 and
4 continued to be that of the Karnavan.
The Karar also does not
provide for devolution of the properties allotted to Parties 2 to 4.
Hence those properties must necessarily go back to the possession
of the Kamavan after those members die.
We have earlier seen
that the responsibility of performing the marriage ceremonies of
the female members continued to be that of the Kamavan.
He is
also responsible for the payment of land revenue in respect of the
family properties excepting properties included in Sch. (A) to the
Karar.
Under these circumstances, it is not possible to hold that
Karar in question embodied an irrevocable settlement.
In the
very nature of things, the arrangement made under that Karar
must be held to be one which is revocable if there is any substantial change in the circumstances of the family.
For our present purpose it i~ sufficient if we hold that the properties allotted for the enjoyment of the various members of the
F
family under the Karar continued to be the properties of the
family . .
In view of s. 9 (1) of the Act in computing the total agricultural income of the H.U.F., all agricultural income arising from
the assets remaining the property of the family should be deemed
G to be the agricultural income of the family.
We have earlier
come to the conclusion that the agrrangement made under the
Karar is revocable if there is substantial change in the circumstances of the family.
That arrangement confers benefit on the
family inasmuch as it is absolved of the responsibility to maintain
its members which, otherwise is its responsibility.
H
Section 9 (1) of the Act is similar to s. 16 ( 1) ( c) of the Indian
Income-tax Act, 1922. The latter section has come up for consideration by courts.
The courts have laid down the test that if
1006
SUPREME COURT REPORTS
(1972] l S.C.R
the income in dispute is considered as having been applied to discharge an obligation of the assessee, the same is liable to be
included in the assessable income of the assessee but if on the other
hand the .same had been diverted by an overriding charge, then
it is not liable to be included in the assessable income of the
assessee as it ceased to be his income. lf we apply this test to
the facts of the present case, it is clear that the income in dispute
continued to be the income of the family.
It was merely applied
to discharge an obligation of the family namely the obligation to
maintain the junior members of the family.
At first sight some of the decided cases on the subject appear
to speak in conflicting voices.
But on a careful examination, it
is possible to find out the dividing line.
The earliest decision on
the subject is that of the Judicial Committee in Raja Be joy Singh
Dudhuria v. Commissioner
of
Income-tax,
Bengal( 1).
The
assessee therein succeeded to the family ancestral estate on the
death of his father.
Subsequently his step-mother brought a shit
for maintenance against him in which a consent decree was made
directing the assessee to make a monthly payment of a fixed sum
to his step-mother and declaring that the. maintenance was
a
charge on the ancestral estate in the hands of the assessee. While
computing his income, the assessee claimed that the amounts paid
by him to the step-mother under the decree should be excluded.
That. contention was not accepted by the authorities under the
Act as well as by the High Court but the Judicial
Committee
reversing their decision came to
the conclusion
that though
assessee's liability under the decree did not fall within any of the
exemptions or allowances conceded in ss. 7 to 12 of the Indian
Income-tax Act, yet the sums paid. by the assessee to his step"
mother were not "income" of the assessee at all; the decree of t)le
court by charging the appellant's whole resources with a specific
payment to his step-mother had to that extent diverted his income
from him and had directed it to his step-mother; to that extent
what he received for her was not his income; it was not a case of
the application by the appellant of part of his income in a particular way; it was rather the allocation of a sum out of his revenue
before it became income in his hands.
This decision at the first
sight appears to lend support to the assessee's contention but in
understanding the ratio o.f the decision, we must bear in mind the
fact that in that case the Advocate-General had abandoned before
the High Court the contention that the assessee and his
stepmother were members of undivided family a•nd accepted the nosition that the appellant was liable to be assessed as an individual
and in no other manner.
In view of this concession, the payment
that had to be made to the step·-mother of the assessee became a
----------
(t) I, I.T.R. 135.
A
B
c
D
E
F
G
H
(
-.
A
B
c
D
E
F
G
v; v. VARMA v. COMMR. A.J.T. (Hegde, J.)
1007
charge on the estate even before that estate devolved on him.
Therefore what the assessee got was the income of the property
minus what he had to pay to his step-mother.
The above conclusion of ours receives support from a later
decision of the Judicial Committee in P. C.
Mullick and anr.
(Executors) v. Commissioner of Income-tax, Bengal(1).
Therein a testator had by his will appointed the appellants his executors
and had directed them to pay Rs. 10,000/- out of the income of
his property on the occasion of his addya sradh for expenses in
connection therewith to the person who was entitled to perform
the sradh.
He had also directed them to pay out of the income
of his property the costs of taking out probate of his will. During
the year of account the executors had paid Rs.
5,537 /-
for
expenses in connection with the addya sradh and a sum of
Rs. 1,25,000/- for probate duty.
The question arose
whether
those payments were deductible in
computing the chargeable
income.
The Judicial Committee held affirming the judgment of
the Calcutta High Court, that the payments made for the sradh
expenses and the costs of probate could not be excluded in computing the chargeable income.
Those were payments made out
of the income of the estate coming to the hands of the appellants
as executors and in pursuance of obligation imposed by the
testator.
Their Lordships were of opinion that it was not a case
in which a portion of the income was by an overriding title diverted from the person who would otherwise have received it as in
Bejoy Singh Dudhuria's(') case, but a case in which the executors
having received the whole income apply a portion of it in a particular way.
From this judgment of the Judicial Committee, it is
clear that the true test is that if the income in question is an
income of the assessee, the application of the same being not
relevant for determining its assessability, it is assessable in his
hands but if it is not his income then it cannot form part of his
assessable income.
The scope of s. 16(1)(c) of the Indian Income-tax Act,
1922 came up for consideration by this Court in Commissioner of
Income-tax, Bombay City v. Sitaldas Tira1/ulas(3).
Therein the
assessee Sitaldas Tirathdas of Bombay had many sources of
income, chief among them being property. stocks and shares, bank
deposits and share in a firm known as M/s. Sitaldas Tirathdas.
He followed the financial year as his accounting year.
For the
assessment years 1953-54 and 1954-55, his total income was respectively computed at Rs. 30,375/- and Rs.
55,160/-.
ThLs
H
computation was not disputed by him but he sought to deduct
Rs. 1350/- in the first assessment year and a sum of Rs. 18,000/-
-----
'(!) I l.T.R. 13 5.
(2) 6 T.T.R. 706.
(3) 41, l.T.R. 367.
1008
SUPREME COURT REPORTS
(19 72 J 1 S.C.R.
in the second assessment year on the ground that under a de~ree, he
was required to pay these sums as maintenance to his wife and his
children. In support of his claim, he relied on the decision of
the Judicial Committee in Bejoy Singh Dudhuria's case (supra).
Tiris Court rejected that contention observing (at pp. 374 and
375 of the Report) :
"In our opinion, the true test is whether the amount
sought to be deducted, in truth, never reached the
assessee as his income.
Obligations, no doubt, there
are in every case, but it is the nature of the obligation
which is the decisive fact. There is a difference between
an amount which a person is obliged to apply out of his
income and amount which by the nature of the obligation cannot be said to be a part of the income of the
assessee.
Where by the obligation income is diverted
before it reaches the assessee, it is deductible, but where
the income is required to be applied to discharge an obligation after such income reaches the assessee, the same
consequence, in law, does not follow.
It is the first
kind of payment which can truly be excused and not
the second.
The second payment is merely an obligation to pay another a portion of one's own income,
which has been received and is since applied.
The first
is the case in which the income never reaches the
assessee who even if he were to collect it, does so, not
as part of his income, but for and on behalf of the person to whom it is payable."
A
B
c
D
E
Counsel for the assessee tried to lay stress on the observati911
of this Court that the income should reach the hands of the
assessee before it can be considered as his income.
According
to him in the case before us, the income in dispute never reached F
the hands of the assessee.
We are unable to accept this contention as correct.
The income is the income of the fam!ly. It
reached the hands of the family as soon as it reached the hands of
any of the members of the family who were entitled to receive it
on behalf of the family.
The members of the family received
that income on behalf of the family and applied the same in disG
charge of an obligation of the family.
When this Court spoke of
the income reaching the hands of the assessee, it did not refer to
any physical act.
It was dealing with a legal concept a receipt
in Jaw.
Viewed that way, it is quite clear that the income with
which we are concerned in this case was received by the family.
One other decision on the point in issue which we would like
II
to refer is the decision of the Bombay High Court in Commi8-
(I) 5 I.T.R. 539.
A
B
c
'
v. v. VARMA v. COMMR. A.I.T. (Hegde, !.)
1009
sioner of Income-tax, Bombay v.
Makanji Lalji( 1), wherein
Beaumont C.J., speaking for the court held tb<tt in computing the
income of the H.U.F. for purpose~ of income-tax, moneys paid to
the widow of a deceased coparcenet of the family as maintenance
and residence allowance cannot be deducted, even though the
amount of such allowance has been fixed by a decree of the Court
and has been made a charge on properties belonging to the familf
It is not necessary to refer to cases which deal with the diversion of the income of the assessee.
The test to ·be applied for
finding out whether there is diversion of income or not is set out
by this Court in Commissioner of Income Tax, Bombay City, v.
Ratilal Nathalal(').
For the reasons mentioned above this appeal fails and the
same is dismissed with costs.
V.P.S.
Appeal dismissed.
(I) 25 l.T.R. 426.