JUDGMENT Zia-ul-Hasan, J. (August 13, 1940). 1. This is a reference by the Commissioner of income tax, Central and United Provinces, u/s 66(2) of the income tax Act and the question referred to us is whether the maintenance allowance of Rs. 30,000 received by Rani Rudh Kumari in 1936-37 was, in the circumstances to be mentioned shortly, received by her as a member of a Hindu undivided family within the meaning of Section 14 of the Act 2. In 1873 Raja Sheo Bakhsh Singh, the then owner of the taluqdari estates of Nabinagar and Katesar, executed a will providing that in the absence of any male issue, his junior Rani Pirthipal Kaur would after his death be the owner of the entire estate. No male issue was born to the Raja and accordingly on his death Rani Pirthipal Kuar came into possession of the entire estate left by him. On the 25th August, 1928, Rani Pirthipal Kuar herself made a will by which her daughter's son's son Partab Bhan Prakash Singh, was to be the sole owner of the taluqa and of all the moveable and immoveable properties owned by the testatrix at the time of her death. By the same will the Rani directed that on her death, a guzara of Rs. 3,500 per mensem or more which she herself might be getting at the time of her death be given to Rudh Kumari mother of Partab Bhan Prakash Singh and widow of Kunwar Partab Bahadur Singh, daughter's son of the testatrix. It was also provided that the guzara will be a charge on the entire estate. Rani Pirthipal Kuar died in 1932 and the Court of Wards, who had taken over management of the estate soon after the death of Raja Sheo Bakhsh Singh, began to pay guzara to the applicant Thakurain Rudh Kumari after the death of Rani Pirthipal Kuar. 3. In the assessment year 1937-38, the income tax Officer, Sitapur, on receiving information from the Court of Wards that the applicant had received in the previous year a maintenance allowance of Rs. 30,000 issued a notice u/s 22(2) of the income tax Act calling upon the applicant to file her return of income for the year 1936-37. The return for the year was filed by the applicant but the maintenance allowance received by her was not shown in it. 30,000 issued a notice u/s 22(2) of the income tax Act calling upon the applicant to file her return of income for the year 1936-37. The return for the year was filed by the applicant but the maintenance allowance received by her was not shown in it. On this notices under Sections 22(4) and 23(2) of the Act we're issued but it was contended by the applicant that the money received by her' from the Court of Wards was not assess able in her hands. The income tax Officer did not accept this contention and made an assessment on an income of Rs. 30,387 which included income from property and dividends. The applicant appealed to the Assistant Commissioner who agreed with the income tax Officer and dismissed the appeal on the 30th July, 1937. The applicant then applied to the Commissioner of income tax for a reference being made to this Court and hence the present reference. 4. Section 14(1) of the income tax Act under which exemption is claimed by Thakurain Rudh Kumari runs as follows : The tax shall not be payable by an assesses in respect of any sum which he receives as a member of a Hindu undivided family. 5. It will be seen that to. come under this sub-section the applicant must prove two things- (1) that she is a member of a Hinda undivided family, and (2) that she received the sum of Rs. 30,000 in the year in question as a member of a Hindu undivided family. 6. The learned counsel for the Income Tax Department contests the applicant's claim on both these points. 7. In support of his contention that the applicant is not a member of an undivided family, the learned counsel has relied on paragraph 223 (5) of Sir D. F. Mulla's Principles of Hindu Law, 9th Edn. in which it is stated that in Allahabad the property obtained by a Hindu by gift or will from his father has been held to be his self-acquired property and that in Oudh it has been held that in the absence of language clearly indicating the testator's intention that the property should fee held by the sons subject to the incident of survivorship, it should be presumed that such property is self-acquired. It is argued by the learned counsel that since Kunwar Partab Bhan Praksh Singh acquired the estate by the will of Rani Pirthipal Kuar, the present applicant had no vested interest in it. It appears to me, however, that the argument proceeds on a confusion between an undivided Hinda family and a Hindu co-parcenary body. Mulla in paragraph 212 of his book says- A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters,.:. The existence of joint estate is not an essential requisite to- constitute a joint family and a family which does not own any property may nevertheless be joint. 8. Again in paragraph 213 it is said- A Hindu co-parcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or co parcenary property.... 9. The distinction is in fact recognized by more than one High Court in India. In the case of Vedathanni Vs. Commissioner of Income Tax, AIR 1932 Mad 733 it was held that there can be a joint family with a single male member provided there are widows of deceased co-parceners or other persons entitled to maintenance from him, and in the case of Kumar Kedar Narayan Singha v. The Commissioner of Income Tax 61 ITR 157 their Lordships of the Allahabad High Court said- Ordinarily a married daughter is not a member of the family of her father or mother, nor " can the daughter's son be said to be such a member, but it is said that the expression 'undivided Hindu family' used in Section 14 differs from what is called a Hindu co-parceuary body which is a much norrower body and which includes those male members who took by birth an interest in the co-parcenary property. This may be conceded and is indeed supported by authority, -see the case of Vedathanni v. The Commissioner of Income Tax IL R 56 Mad. 1 and the case of the Commissioner of Income Tax Bombay v. Laksmi Narayan ILR 59 Bom. 618. In the latter case; Rangnekar J. observed- Under the Hindu Law, an undivided family is composed of (a) mates and (b) females. The male stare (1) those that are lineally connected in the male line (2) collaterals, (3) relations by adoption and (4) poor dependents.... 10. 618. In the latter case; Rangnekar J. observed- Under the Hindu Law, an undivided family is composed of (a) mates and (b) females. The male stare (1) those that are lineally connected in the male line (2) collaterals, (3) relations by adoption and (4) poor dependents.... 10. The learned Judges go on to say- Only those members of a Hindu undivided family can claim exemption u/s 14 (1) ' of the Act who either on partition would be entitled to demand a share or are entitled to maintenance under the Hindu Law and who therefore might be said to have an interest in the -joint income of the family. 11. Mayne also in his book on Hindu Law (10 Edn. 339) says- The whole body of such a family consisting of males and females...some of the members of which are co-parceners, that is, persons who on partition would be entitled to demand a share while others are only entitled to maintenance. 12. It will thus be seen that the question of the source from which Kunwar Partab Bhan Prakash Singh derived his estate has no bearing on the point before us and that irrespective of that source or even of whether or not the applicant's son has any property, the applicant should be deemed to be a member of an undivided family with Partab Bhan Prakash Singh. 13. The next question is whether or not the applicant received the amount in question as a member of an undivided Hindu Family. On this point the learned counsel for the Department laid much stress on the will of Rani Pirthipal Kuar and argued that the applicant received the money not as a member of an undivided family but on the basis of the will. After giving my best consideration to the learned counsel's argument, I do not see that the existence of the will in favour of the applicant makes any difference. In paragraph 548 of his book Sir D. F. Mulla says- A son is under a personal obligation to maintain his aged father He is also under a similar obligation to maintain his aged mother and he is bound to maintain her, whether or not he has-inherited property from his father. 14. In paragraph 548 of his book Sir D. F. Mulla says- A son is under a personal obligation to maintain his aged father He is also under a similar obligation to maintain his aged mother and he is bound to maintain her, whether or not he has-inherited property from his father. 14. In fact it was not denied by the learned counsel for the Department that as the mother of Kunwar Partab Bhan Prakash Singh, the applicant is entitled under the Hindu law to receive maintenance from him. It follows, therefore, from the rulings cited above that by virtue of her right to receive maintenance from the ward of the Court and his estate, the applicant comes u/s 14 (1) of the Act and the maintenance received by her is not assessable. This being so the existence of a will in the applicant's favour is to my mind of no consequence. Indeed, I can think of no reason why the will of Rani Pirthipal Kuar should deprive the applicant of her rights under the law. Further, the very fact that instead of Rs. 3,500 a month to which the lady was entitled under will, she is receiving only Rs. 2,500 a month shows that the guzara is received by her not under the will but as mother of the proprietor of the estate. The amount was presumably fixed by the Court of Wards with regard to the extent of the estate and the status of the proprietor. 15. The learned counsel for the Department has referred us to the case of Bejoy Singh Dudhuria v. Commissioner of income tax AIR 1933 PC 146 : 1933 AWR 1. 966 but I do not see how the decision in that case helps him. In that case their Lordships of. the Judicial Committee were dealing with the case of an assesses who paid guzara to his stepmother under a Court's decree and the question before their Lordships was whether or not the amount paid to the stepmother out of the estate was or was not liable to income tax. The question whether the assessee's step-mother is liable under the Act to assessment in respect of payments received by her was not decided but left open by their Lordships. The question whether the assessee's step-mother is liable under the Act to assessment in respect of payments received by her was not decided but left open by their Lordships. I may, however, point out that the judgment shows that the Commissioner of income tax, Bengal, himself cancelled the assessment on the step-mother on the ground that the payments made to her were in virtue of her right of maintenance as a member of a Hindu undivided family. It will be interesting to see what are the rights of a step-mother in regard to receiving maintenance from her stepson. Mulla in paragraph 544 of his book says- An heir is legally bound to provide out of the estate which descends to him maintenance from those persons whom the late proprietor was legally or morally bound to maintain. The reason is that the estate is inherited subject to the obligation to provide for such maintenance. 16. And in illustration (b) to paragraph 544 it is said- A stepson is under no personal obligation to maintain his stepmother; but if he inherits his father's estate he is bound to maintain her out of the estate, she being a person his father was legally bound to maintain as his wife.... 17. It appears to me therefore that if the maintenance received by a stepmother was entitled to exemption as that of a member of a Hindu undivided family, the maintenance of a mother, whom the proprietor of an estate is personally bound to maintain under the Hindu law, is much more so entitled. 18. I would therefore answer the reference in the affirmative and in favour of Thakurain Rudh Kumari. Bennett J. (August 15, 1940.) 19. I concur in the answer given to the reference by my learned brother, but I wish to make it clear that I do so only because the facts stated in the reference justify the presumption that the amount received by Thakurain Rudh Kumari in the year 1937-38 was received by her as maintenance in virtue of her position in the family as the mother of the proprietor of the estate and is not referable to the will of Rani Pirthvipal Kunwar. 20. In her will dated the 25th August, 1928, Rani Pirthvipal Kuhwar stated that she herself received Rs. 20. In her will dated the 25th August, 1928, Rani Pirthvipal Kuhwar stated that she herself received Rs. 3,500 a month as guzara from the Court of Wards and that this amount would Improbably be increased in future. She also received sir and sawai as guzara. She bequeathed by her will the same amount to Thakurain Rudh Kumari, that is to say, whatever amount she herself would be getting at the time of her death. She died in 1932. There is nothing to show what amount she herself was receiving between the years 1928-32, but presumably it was some amount in excess of Rs. 3,500' per mensem. 21. There can be no doubt in my opinion that if Thakurain Rudh Kumari received a similar amount after the death of Rani Pirthvipal Kunwar it would be necessary to presume that that amount was received by her as guzara under the will and that following the decisions of various Courts it would be necessary to hold that this guzara was not exempted u/s 14 (1) of the income tax Act because it was a charge on the entire estate and would not be taken from the income received by her son. I would refer in this connection to the Privy Council case of Bejoy Singh Dudhuria v. Commissioner of income tax, Calcutta AIR 1933 PC 146 : 1933 AWR 1. 966. In this case a decree of the Court charged the assessee's whole resources with a specific payment to his stepmother and it was held by their Lordships that to that extent his income was diverted from him and directed to his stepmother and therefore could not be considered his income. It was not a case of the application by the assessee 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 bands. That, in my opinion, would be the position in the present case if the amount drawn by Thakurain Rudh Kumari in the year 1937-38 was referable to the will. 22. In fact, however Thakurain Rudh Kumari did not draw the amount to which she was entitled under the will. She was granted maintenance at the rate of Rs. 2,500 a month by the Court of Wards which was managing her son's estate. 22. In fact, however Thakurain Rudh Kumari did not draw the amount to which she was entitled under the will. She was granted maintenance at the rate of Rs. 2,500 a month by the Court of Wards which was managing her son's estate. Under the will she would have been entitled to a considerably larger amount and it must be taken therefore that she waived her rights under the will and agreed to receive only such amount as the Court of Wards considered that she was entitled to by way of maintenance. As my learned brother has observed the amount was presumably fixed by the Court of Wards with regard to the extent of the estate and the status of the proprietor. 23. So far as can be seen from the facts stated in the reference the will has been entirely ignored and on this view I consider that it would not be justifiable to assess Thakurain Rudh Kumari to income tax in respect of the amount received by her, this amount not having been received by her, under the will, but allowed to her as maintenance in virtue of her position as the mother of the proprietor. Zia-ul-Hasan and Bennett, JJ. (August 19, 1940) 24. We answer the reference in the affirmative and in favour of Rani Rudh Kumari. We fix Rs. 100 as costs of the lady.