Judgment :- By this application, the assessee requires the Appellate Tribunal to refer to the High Court certain questions of law, which are said to arise out of the Tribunal's order in I. T. A. No. 3197 of 1948-49, dated 21st November, 1950. Inasmuch as, in our opinion, questions of law do arise out of the aforesaid order, we hereby draw up a statement of the case, agreed to by both parties, and refer it to the High Court of Judicature at Madras under section 66(1) of the Indian Income-tax Act. 2. The assessee is a partnership deriving income as owners of a large tea estate and manufacturers of tea in Ceylon. The estate is known as the Knightsdale Group. The partnership is supported by a deed, dated 22nd March, 1947, (annexed hereto as Annexure A and forming part of the case) among the three persons, namely, (1) S. T. P. Marimuthu Pillai, (2) R. M. S. Marimuthu Pillai and (3) R. M. S. Srinivasan Pillai, all of them residents of Murugur, Tiruchirapalli district. This deed was in substitution of earlier deeds, dated 17th January, 1944, and 14th February, 1947, which were technically defective because in the first, minors were directly shown as partners and in the second, the partners were mentioned as families. 3. According to clause (1) of the said deed of 22nd March, 1947, the "shares" of profits or losses in the joint working of the properties and carrying on of businesses thereon are as follows :- S. T. P. Marimuthu Pillai 1/8 R. M. S. Marimuthu Pillai 1/8 R. M. S. Srinivasan Pillai 1/8 The balance of 5/8 share was allotted to 5 minors. (1) Deena-dayalu, (2) Ramanathan, (3) Ponnuswami, (4) R. M. N. Ramanathan, and (5) R. M. N. Ganesan, each 1/8 share. It was claimed that these five minors had been admitted to the benefits of partnership. Partner No. 1, S. T. P. Marimuthu Pillai and three of the minors, Deenadayalu, Ramanathan and Ponnuswami formed a Hindu undivided family. The other minors R. M. N. Ramanathan and Ganesan between themselves formed a Hindu undivided family. The genealogical tree of the family is annexed hereto as Annexure B and forms part of the case. 4. All the said persons are descended from a common ancestor. The other minors R. M. N. Ramanathan and Ganesan between themselves formed a Hindu undivided family. The genealogical tree of the family is annexed hereto as Annexure B and forms part of the case. 4. All the said persons are descended from a common ancestor. Mari Kangani, who was the original owner of the tea estates and the estate was inherited by them in accordance with the law of succession obtaining in Ceylon (which like the Roman Dutch Law recognises only individuals and not families.) The tea estates which Mari Kangani acquired and developed were known as the Marieland Group of Estates. By a will, dated 4th April, 1916, the Marieland Group was bequeathed by Mari Kangani to his heirs in definite but undivided shares. The heirs enjoyed these properties jointly, dividing the income on the basis of the shares stipulated in the will. 5. After the death of Mari Kangani, from out of the income of the Marieland Group of Estates, the present Knightsdale Group of Estates was acquired. Up to 1st January, 1942, the Knightsdale Group formed part of the larger Marieland Group. 6. The present owners of the Marieland Estates in the line of succession assessed to income-tax in India are :- (1) Rm. Ar. Somasundaram Pillai. (2) Rm. Ar. Rm. Srinivasan Pillai. (3) S. T. P. Marimuthu Pillai - Hindu undivided family of himself and minor brothers. (4) R. M. S. Marimuthu Pillai - Hindu undivided family of himself and his brother. (5) R. M. N. Ganesan and Ramanathan - Hindu undivided family. Prior to the assessment year 1941-42, each was assessed to tax only on the share of profit and remittances. From the assessment year 1941-42, the Marieland partnership as such was under the name "Rawanna Mavanna & Co." on the ground that the firm was a resident firm, because its control and management was not wholly situated outside India. Copies of the partnership deed for the Marieland firm, one dated 19th January, 1944, and the other, dated 22nd March, 1947, amending the first are annexed hereto as Annexures C and D and form part of the case. The latter deed was executed, not as a result of partition in the families mentioned in the first deed, but merely to get over the technical objection of the Income-tax Officer, to showing family groups and minors as direct partners. The latter deed was executed, not as a result of partition in the families mentioned in the first deed, but merely to get over the technical objection of the Income-tax Officer, to showing family groups and minors as direct partners. One of the joint owners of the Marieland Group, Rm. Ar. Somasundaram Pillai and Rm. Ar. Srinivasan Pillai had considerably overdrawn their shares of income from the estates and differences arose and as a result of an arbitration, the Knightsdale Group of Estates was separated from the parent group of Marieland, Somasundaram and Srinivasan relinquishing their claims of ownership in respect of this separated estate. Thus from 1st January, 1942, the Knightsdale Group came to be held by the present smaller partnership. The management of both the Marieland Group and the Knightsdale Group was vested in the hands of the senior partner, S. T. P. Marimuthu Pillai. 6. After the separation of the Knightsdale Group, the Income-tax Officer took steps to assess the smaller partnership. He found that the management was similar to that of the Marieland Group and that there was an office in Murugur to which daybook copies and statement of account were sent periodically. The entire correspondence between the Murugur office and Ceylon was not produced. Some letters to and from during the period 1940 to 1942, (extracts annexed hereto as Annexure E and forming part of the case) the terms of the indenture, dated 1st July, 1930, for the control and management of the estates, the terms of the partnership deed dated 26th December, 1937, executed in Ceylon, and the power of attorney dated 1st January, 1941, given to a local manager in Ceylon were examined in connection with the assessment of the main firm. These indicated that the exercise of control and management of that firm was not wholly outside British India. As circumstances were similar and as the entire correspondence had not been produced, the Income-tax Officer held that the firm was resident and ordinarily resident in India. The firm was also registered under section 26A of the Income-tax Act and assessed. The Income-tax Officer also directed that the profit of the firm shall be assessed in the hands of the partners as below :- 1. S. T. P. Marimuthu Pillai 1/8. Minor Deenadayalu 1/8. Collectively as income from Minor Ramanathan 1/8. one Hindu undivided Minor Ponnuswami 1/8. family. 2. The Income-tax Officer also directed that the profit of the firm shall be assessed in the hands of the partners as below :- 1. S. T. P. Marimuthu Pillai 1/8. Minor Deenadayalu 1/8. Collectively as income from Minor Ramanathan 1/8. one Hindu undivided Minor Ponnuswami 1/8. family. 2. R. M. S. Marimuthu Pillai 1/8. do R. M. S. Srinivasan Pillai 1/8. 3. R. M. N. Ganesan 1/8. do R. M. N. Ramanathan 1/8. 7. The Appellate Assistant Commissioner, on appeal, confirmed the assessment. On a further appeal to the Tribunal, the assessee raised two contentions, (1) that the said firm was not resident in British India : and (2) that the shares of the partners should not have been clubbed in the way the Income-tax Officer had done and that the status of Hindu undivided family as understood in India could not be imported when assessing properties situated in Ceylon on the principle of lex loci. On the first point, the Tribunal-held that the assessee had not discharged the onus of proving that the control and management was wholly without British India by the production of correspondence and that the Income-tax Officer had other sufficient materials to find that the control and management was not wholly without India. On the second point, the Tribunal held that as the principle of lex loci applied only to the right to immovable property and not to the income arising from such properties or business and further as the report of the assessee's auditor, dated 24th October, 1943, annexed hereto as Annexure F and forming part of the case, clearly showed that the profits were shared only by the family groups, the allocation made by the Income-tax Officer was upheld. 8. On the facts stated above, the questions that arise are :- (1) Whether there was material on which the Tribunal could have come to the conclusion that the management and control of the firm's affairs was not situate wholly outside British India. (2) Whether on the facts and in the circumstances of the case, the income from properties situate in Ceylon were assessable under the Indian Income-tax Act, 1922, as that of the Hindu undivided family, notwithstanding that succession thereto was in accordance with Ceylon law which does not recognise such a legal entity for purposes of ownership of the estate. (2) Whether on the facts and in the circumstances of the case, the income from properties situate in Ceylon were assessable under the Indian Income-tax Act, 1922, as that of the Hindu undivided family, notwithstanding that succession thereto was in accordance with Ceylon law which does not recognise such a legal entity for purposes of ownership of the estate. STATEMENT OF CASE (No. 108 of 1953) By these applications, the assessee requires the Appellate Tribunal to refer to the High Court certain questions of law which are said to arise out of the Tribunal's orders in I. T. A. Nos. 2790 to 2793 of 1951-52, dated 8th August, 1952, and I. T. A. Nos. 528 to 530 of 1952-53, dated 15th October, 1952. Inasmuch as, in our opinion, certain questions of law do arise out of the aforesaid orders, we hereby draw up a consolidated statement of the case, agreed to by both the parties and refer it to the High Court of Judicature at Madras under section 66(1) of the Indian Income-tax Act. 2. The relevant years of assessment are the assessment years 1944-45 to 1950-51. 3. The assessee is a Hindu undivided family, "resident and ordinarily resident" consisting of S. T. P. Marimuthu Pillai, karta, and his minor step-brothers S. T. P. Ponnuswami, S. T. P. Ramanathan and S. T. P. Deenadayalu, sons of R. M. S. T. Ponnuswami. The assessee derives income mainly from three tea estates situated in Ceylon, viz., (a) Marieland Group, (b) Kunckles and Lebanon Group, and (c) Knightsdale Group which are jointly owned by the assessee and certain other persons. 4. To appreciate the facts of the case, it is necessary to trace the history from the beginning. One Mari Kangani was the absolute owner of the Marieland Group of tea estates which was his self-acquired property. He had three sons (1) Arunachala, (2) Chidambaram and (3) Ramaswami. Chidambaram died in 1905 leaving a son R. M. S. T. Ponnuswami. R. M. S. T. Ponnuswami died on 4th June, 1937, leaving behind him S. T. P. Marimuthu, S. T. P. Deenadayalan, S. T. P. Ramanathan and S. T. P. Ponnuswami, the members of the assessee family. On 27th January, 1908, Mari Kangani executed a deed of gift by which the Marieland Estate was devised in equal shares to his two sons Arunachala and Ramaswami and his grandson R. M. S. T. Ponnuswami. On 27th January, 1908, Mari Kangani executed a deed of gift by which the Marieland Estate was devised in equal shares to his two sons Arunachala and Ramaswami and his grandson R. M. S. T. Ponnuswami. Arunachala died in 1911 leaving a will by which he bequeathed his 1/3rd share in the Marieland Estate to his father Mari Kangani. On 13th September, 1912, Mari Kangani executed another gift deed by which he gifted the 1/3rd share of the Marieland Estate, bequeathed by Arunachala to his grandsons Rm. Ar. Ramaswami, Rm. Ar. Somasundaran, and Rm. Ar. Natesa who were the sons of Arunachala. By a will, dated 4th April, 1916, Mari Kangani bequeathed all his other properties to his son Ramaswami and his grandsons Rm. Ar. Ramaswami, Rm. Ar. Somasundaran, Rm. Ar. Natesa and R. M. S. T. Ponnuswami. Rm. Ar. Natesa died leaving no issue. Thus the Marieland Tea Estate came to be owned by the following persons with definite shares shown against each :- (1) R. M. Ramaswami 1/3. (2) R. M. S. T. Ponnuswami 1/3. (3) Rm. Ar. Ramaswami 1/6. (4) Rm. Ar. Somasundara 1/6. 5. On 27th March, 1920, R. M. S. T. Ponnuswami, R. M. Ramaswami, Rm. Ar. Ramaswami, Rm. Ar. Somasundara and one S. N. Perianna Pillai purchased yet another tea estate known as the Kunckles and Lebanon Group from out of the income from the said Marieland Estate with the following share holdings :-R. M. S. T. Ponnuswami 1/4. R. M. Ramaswami 1/4. Rm. Ar. Ramaswami 1/8. Rm. Ar. Somasundara 1/8. S. N. Perianna Pillai 1/4. 6. On 2nd October, 1928, R. M. S. T. Ponnuswami, R. M. Ramaswami Rm. Ar. Somasundara, Rm. Ar. Ramaswami, and one S. S. Chelliah Pillai, purchased another tea estate known as the Knightsdale group of estates from out of the income from the Marieland Estate with the following shares :- R. M. S. T. Ponnuswami 2/9. R. M. Ramaswami 2/9. Rm. Ar. Somasundara 1/9. Rm. Ar. Ramaswami 1/9. S. S. Chelliah Pillai 3/9. 7. Disputes arose among the co-owners and a partition suit was filed on 9th June, 1933, in Ceylon. A decree was passed on 23rd August, 1933, in respect of the Knightsdale Group. R. M. Ramaswami 2/9. Rm. Ar. Somasundara 1/9. Rm. Ar. Ramaswami 1/9. S. S. Chelliah Pillai 3/9. 7. Disputes arose among the co-owners and a partition suit was filed on 9th June, 1933, in Ceylon. A decree was passed on 23rd August, 1933, in respect of the Knightsdale Group. As a result of the partition decree, this group of estates (barring a small portion) was sold and jointly purchased (R. M. Ramaswami being eliminated) by the following in equal shares :- R. M. S. T. Ponnuswami 1/4. Rm. Ar. Ramaswami 1/4. Rm. Ar. Somasundara 1/4. S. S. Chelliah Pillai 1/4. Later on the share belonging to S. S. Chelliah Pillai was purchased by R. M. R. M. Sellamuthu and R. M. R. M. Natesa, sons of R. M. Ramaswami, and it was thereafter agreed that the shares in the estate were to be held in the following manner :- 1. R. M. S. T. Ponnuswami 2/6. 2. R. M. R. M. Sellamuthu 1/6. 3. R. M. R. M. Natesa 1/6. 4. R. M. A. R. Ramaswami 1/6. 5. R. M. A. R. Somasundara 1/6. When R. M. S. T. Ponnuswami died on 4th June, 1937, his sons S. T. P. Marimuthu, S. T. P. Deenadayalan, S. T. P. Ramanathan and S. T. P. Ponnuswami succeeded to his interest in the various estates. S. T. P. Deenadayalan, S. T. P. Ramanathan and S. T. P. Ponnuswami were minors and therefore, curatorship proceedings for the administration of their shares were commenced in Ceylon under the Ceylon law in which they were represented by their mother K. Kamakshi Ammal, the surviving widow of R. M. S. T. Ponnuswami. Under the Ceylon law, K. Kamakshi Ammal also was entitled to a share in the said properties which she gifted by means of deed, dated 11th June, 1938, in equal shares to S. T. P. Marimuthu and her three minor sons. Simultaneously, proceedings for the levy of estate duty on the estate of R. M. S. T. Ponnuswami Pillai were commence by the Ceylon Government. The estate duty proceedings did not become final as the assessee was disputing them on the ground that the estate belonged to the Hindu undivided family and the death of R. M. S. T. Ponnuswami Pillai did not affect the situation in any manner. 8. The estate duty proceedings did not become final as the assessee was disputing them on the ground that the estate belonged to the Hindu undivided family and the death of R. M. S. T. Ponnuswami Pillai did not affect the situation in any manner. 8. In India, separate income-tax proceedings were stated in respect of the share income received from the Marieland Estate, Knuckles and Lebanon Estates and Knightsdale Estate as partnership concern in respect of the assessment years under consideration. For the assessment years 1944-45 to 1946-47 the share income from these firms was admitted by the assessee family in its return. In respect of 1947-48 to 1950-51 assessment years, however, the four members of the assessee family filed four separate returns in respect of the income from the three aforesaid tea estates in Ceylon and contended that separate assessments should be made in respect of the income from the tea estates in Ceylon. But no such plea was taken in respect of the earlier three assessments. In fact, the assessee acquiesced in such an assessment n respect of 1943-44 tax year. It was also admitted that there was no partition among the four members of the family as contemplated under section 25A of the Income-tax Act. The Income-tax Officer, therefore, treated the share income of the four members as belonging to the Hindu undivided family and made a single assessment. 9. The firm of Marieland group of estates paid S. T. P. Marimuthu Pillai, the managing partner, salary of Rs. 8, 580 for the assessment year 1944-45 and Rs. 7, 920 for each of the assessment years 1945-46 to 1950-51. In computing the income of the firm, the salary paid to the partner was disallowed by the Income-tax Officer in accordance with the provisions of section 16(b) of the Income-tax Act, and the same was included in the share income of the assessee. The assessee claimed that the salary was the remuneration paid to S. T. P. Marimuthu Pillai in his individual capacity for managing the affairs of the said group of estates and that it did not ensure for the benefit of the assessee family. The Income-tax Officer negatived the assessee's claim and included the salary in the total income of the assessee. 10. The assessee further claimed exemption of Rs. The Income-tax Officer negatived the assessee's claim and included the salary in the total income of the assessee. 10. The assessee further claimed exemption of Rs. 4, 500 under section 4(1) (c) of the Income-tax Act in respect of the unremitted portion of the foreign profits from the aforesaid three firms. The Incomes-tax Officer held that each of the firms having been allowed the statutory exemption of Rs. 4, 500 in computing their total income, the assessee was not entitled to a further allowance of Rs. 4, 500 under section 4(1) (c) in respect of the share income from the foreign unremitted profits of the three firms. 11. The assessee appealed to the Appellate Assistant Commissioner before whom it was primarily contended by the assessee that since the properties in question were situated in Ceylon, the lex loci should determine the correct legal position. In Ceylon the Hindu law was not applicable and succession to immovable properties was governed by the Roman Dutch Law, according to which the properties belonged to all the members as tenants-in-common and as such the income from the tea estates could not be held as income of the family. It was also contended that as apart of the property (tea estates) had been acquired by each of the members in definite shares, it could not be treated as joint family property. The Appellate Assistant Commissioner did not accept these arguments and agreeing with the Income-tax Officer's view, he confirmed the assessment in these respects. 12. On appeal before the Appellate Tribunal, three man contention were raised by the assessee :- (1) The share income from the three tea estates in Ceylon should not have been assessed in the hands of the family but should have been assessed in the hands of the four members of the family according to their individual shares. (2) The salary received by S. T. P. Marimuthu Pillai, the karta of the family, from the firm of Marieland group of tea estates should have been treated as his individual come and should not have been clubbed in the family's assessment.(3) The allowance of Rs. 4, 500 under the third proviso to section (4) (1) (c) of the Income-tax Act should have been made in respect of the share income from each of the three estates in Ceylon. 4, 500 under the third proviso to section (4) (1) (c) of the Income-tax Act should have been made in respect of the share income from each of the three estates in Ceylon. In respect of 1948-49, 1949-50 and 1950-51 assessments reliance was placed by the assessee on the decision of the District Judge, Colombo, annexed hereto as annexure "A" and forming part of the case in the matter of the payment of estate duty to the estate of late R. M. S. T. Ponnuswami and the finding therein given based mainly on two facts that the estates stood in the names of the different branches in definite shares and it had not been established that the nucleus for the original acquisition had come from joint family property. 13. The Appellate Tribunal held that the estate duty proceedings in Ceylon were not binding or conclusive on the Income-tax department in India and in any case it was significant that the claim put forward by the assessee was that the tea estates constituted joint family property and for reasons set out in the orders of the Tribunal in I. T. A. Nos. 2790 to 2793 of 1951-52, dated 8th August 1952, and I. T. A. Nos. 528 to 539 of 1952-53, dated 15th October, 1952, copies whereof are annexed hereto as annexures 'B' and 'B-1' it negatives all the three contentions raised by the assessee and dismissed the appeals. 14. Out of the aforesaid facts, the questions of law that arise are :- (i) Whether the share income from the three tea estates state in Ceylon are assessable under the Indian Income-tax Act, 1922, in the hands of assessee joint family, notwithstanding that succession to the said estate was regulated by the Ceylon law. (ii) Whether the inclusion of the salary paid by the firm to the karta S. T. P. Marimuthu Pillai for services rendered by him in the total income of the assessee family is legal and proper ?(iii) Whether the assessee is entitled to the allowance under the third proviso to section 4(1) (c). M. Subbaraya Ayyar, for the assessees. C. S. Rama Rao Sahib, for the Commissioner. JUDGMENT. M. Subbaraya Ayyar, for the assessees. C. S. Rama Rao Sahib, for the Commissioner. JUDGMENT. RAJAGOPALAN, J. - The questions that were referred to this Court under section 66(1) of the Income-tax Act in Case Referred No. 46 of 1951 arose out of the proceedings of the assessment year 1943-44, and those referred in Case Referred No. 108 of 1953 arose out of proceedings for the succeeding years 1944-45 to 1950-51. The questions that were referred in Case Referred No. 46 of 1951 were : "(1) Whether there was material on which the Tribunal could have come to the conclusion that the management and control of the firm's affairs was not situate wholly outside British India. (2) Whether on the facts and in the circumstances of the case the income from properties situate in Ceylon was assessable under the Indian Income-tax Act of 1922, as that of the Hindu undivided family notwithstanding that succession thereto was in accordance with Ceylon law which does not recognise such a legal entity for purposes of ownership of the estate." * The questions that were referred to this Court in Case Referred No. 108 of 1953 were : "(1) Whether the share income from the three tea estates situate in Ceylon are assessable under the Income-tax Act, 1922, in the hands of the assessee family notwithstanding that succession to the said estates was regulated by the Ceylon law. (2) Whether the inclusion of the salary paid in the firm to S. T. P. Marimuthu Pillai for services rendered by him in the total income of the assessee family is legal and proper. (3) Whether the assessee is entitled to the allowance under the proviso to section 4(1) (c)." * Despite the change in the wording, question 2 in Case Referred No. 46 of 1951 is substantially the same as question 1 in Case Referred No. 108 of 1953. A genealogical table of the family was furnished at page 24 of the printed papers in Case Referred No. 46 of 1951. Mari Kangani migrated to Ceylon and acquired properties there, mainly tea estates known as the Marieland group of estates. The lex loci which governed succession and inheritance of immovable properties Ceylon did not recognise undivided Hindu families, though in India Mari and his descendants were governed by the Mitakshara. Mari Kangani migrated to Ceylon and acquired properties there, mainly tea estates known as the Marieland group of estates. The lex loci which governed succession and inheritance of immovable properties Ceylon did not recognise undivided Hindu families, though in India Mari and his descendants were governed by the Mitakshara. Though an individual was a member of a coparcenary in India, a share immovable properties situate in Ceylon, even if that share was undivided, could be held by that individual only on the basis that it was the separate property of that individual and did not constitute the property of the coparcenary of which he was a member. Mari's three sons, Arunachala, Chidambara and Ramaswami, took the properties in equal shares under Mari's will. Chidambara died before 1908 bequeathing his properties to his son Ponnuswami. Chidambara's son Ponnuswami died intestate in 1937. His widow and four sons S. T. P. Marimuthu, Deenadayalan, Ramanathan and Ponnuswami, inherited the deceased Ponnuswami's properties. The widow conveyed her share in these properties in Ceylon to her step son S. T. P. Marimuthu and to his three half-brothers in equal shares. So the position was that the four sons of Ponnuswami succeeded to his properties, which constituted a third share in the Marieland group of estates. Mari's last son Ramaswami had two sons, Sellamuthu an Natesa, both of whom are dead. S. Srinivasan and S. Sellamuthu are the sons of Sellamuthu and these two together apparently constituted a coparcenary. Natesan's sons, Ramanathan and Ganesa who are still minors, between them constitute another coparcenary. The Knightsdale group of estates, also in Ceylon, were acquired out of his income of the Marieland Estate, of which they formed a part till 1st January, 1942. The three coparcenaries between them held the Knightsdale Estate : and according to the law in Ceylon, each coparcener held his eighth share as his separate property. The estates are in Ceylon, but the present owners are residents of Murugur in Tiruchirapalli district.It was common ground that the Knightsdale group of estates were managed by S. T. P. Marimuthu on behalf of these three families during the assessment years. A partnership agreement was entered into on 19th January, 1944, to provide for the management of the Marieland group of estates as well as of the Knightsdale group. To that agreement the descendants of Arunachala, the eldest of Mari's sons, were also parties. A partnership agreement was entered into on 19th January, 1944, to provide for the management of the Marieland group of estates as well as of the Knightsdale group. To that agreement the descendants of Arunachala, the eldest of Mari's sons, were also parties. But no further reference need be made to them. With reference to the Knightsdale group of estates alone a fresh partnership agreement was executed on 22nd March, 1947, which showed the adult members of the three families, S. T. P. Marimuthu, S. Srinivasan and S. Marimuthu, as the partners. The five minors were shown as having been admitted to the benefits of that partnership. Each of the eight of the co-owners of the estates had an eighth share in the assets and profits of the partnership. The income from the Knightsdale group of estates, which was remitted to India where the owners lived, was treated as income from business to which apparently no objection was taken before the departmental authorities or before the Appellate Tribunal. The learned counsel for the assessee contended before us that it was not income from any business as such, but it was really income from the immovable properties held by the eight members of the three families in separable shares. Of course, if the income received in India had arisen directly out of the immovable properties held in Ceylon, the nature of that income should only be correlated to the right in which the immovable property was held in Ceylon. That each of the eight members held his share in the immovable properties in Ceylon as his separate property, despite his membership of a coparcenary in India, could admit of no doubt. It should therefore follow that the share in the income arising directly out of that immovable property in Ceylon could be received by each sharer only as his separate property. But these considerations will not be applicable where the income has all along been treated not as income directly arising out of the immovable properties in Ceylon but out of the business conducted in Ceylon. The business was no doubt management of the tea estates. Though the basic foundation of that business was the possession of immovable properties, tea estates, none the less, it was business, and the income received in India constituted profits of that business. It was not income directly arising out of the immovable properties in Ceylon. The business was no doubt management of the tea estates. Though the basic foundation of that business was the possession of immovable properties, tea estates, none the less, it was business, and the income received in India constituted profits of that business. It was not income directly arising out of the immovable properties in Ceylon. See Commissioner of Income-tax v. Diwan S. L. Mathias. The contention the learned counsel for the assessee put forward before us for the first time in these proceedings, that the income should be treated as income form the immovable properties held in Ceylon, has therefore to be rejected.Each of the eight persons, who could between them constitute three coparcenaries, was entitled to and eighth share in the profits of the business which constituted the income therefrom. For purposes of assessment, however, the departmental authorities "aggregated" the shares in the income and assessed it on the basis, that it was the income of the three joint families. The shares in the income of S. T. P. Marimuthu and his three half -brothers were "aggregated", and they were taxed on the basis that they constituted the income of the joint family of S. T. P. Marimuthu and his three half-brothers. Similarly, the shares of S. Marimuthu and S. Srinivasan, the sons of Sellamuthu, were "aggregated" for purposes of assessment. So also were the shares of Ganesan and Ramanathan, the sons of Natesan. The Tribunal confirmed that assessment. It is the validity of this aggregation that has been challenged by the assessee by the second of the questions in Case Referred No. 46 of 1951 and the first of the questions in Case Referred No. 108 of 1953. These two questions, in our opinion, have really to be answered on the basis of the two partnership deeds dated 19th January, 1944, and 22nd March, 1947. The contracting parties to the partnership evidenced by the document of 19th January, 1944, were (1) S. T. P. Marimuthu as kartha of the joint family consisting of himself and his half-brothers Deenadayalan, Ramanathan and Ponnuswami, (2) S. Srinivasan as the kartha of the joint family consisting of himself and his undivided brother S. Marimuthu, and (3) the coparcenary which consisted of the minors Ramanathan and Ganesan, represented by their guardian, S. T. P. Marimuthu. There were two brothers who were also partners, Somasundara and R. M. Srinivasan, who represented the line of Arunachala, the elder son of Mari Kangani. But they can be left out of further account. This was the partnership that continued practically till 22nd March, 1947. The assessee firm adopted the calendar year as the accounting year. So for the accounting years 1944, 1945 and 1946, corresponding to the assessment years 1945-46, 1946-47 and 1947-48, the partnership, as far as these three families were concerned, consisted only of S. T. P. Marimuthu as the kartha of his joint family, Srinivasan as the kartha of his joint family and S. T. P. Marimuthu in his capacity as the guardian of the coparceners Ramanathan and Ganesa. Such a partnership the kartha of the joint family was entitled to enter into in the circumstances of this case - the business being ancestral family business. That the business to a large extent was the management of immovable properties in Ceylon in no way affected the question of the competence of the kartha of the joint family to enter into a partnership which question has to be decided not with reference to any law in Ceylon but with reference to the law applicable to the parties in India, the country of their origin and domicile. Under the partnership deed of 19th January, 1944, only the contracting parties were entitled to share the profits, and the sharers were S. T. P. Marimuthu, S. Srinivasan, and S. T. P. Marimuthu as guardian and manager of the minors, Ramanathan and Ganesa. The income which each of them got belonged to the joint family which he represented. It is not a case of the coparceners pooling the income of the joint family with the income each of them got from his separate properties. It is not even a case of aggregation of the income of each of the coparceners, whether or not the Income-tax Officers were entitled to adopt such an aggregation as the basis of the assessment. It was just a case of the income being that of the kartha of the family, and after that income had been received by the kartha in his capacity as kartha, the income becoming a property of the joint family of which he was the kartha. It was just a case of the income being that of the kartha of the family, and after that income had been received by the kartha in his capacity as kartha, the income becoming a property of the joint family of which he was the kartha. Therefore, for the period during which the partnership evidenced by the document of 19th January, 1944, was in force, the income from the business in Ceylon was the income of the three joint families and is assessable to tax in India on that basis.With reference to the accounting years commencing from 1947, the position was different. The parties were governed by the terms of the deed of partnership dated 22nd March, 1947. The contracting parties were the three adult members, S. T. P. Marimuthu, S. Marimuthu and S. Srinivasan, but each of the five minors was severally admitted to the benefits of the partnership, each with an eighth share. Under the terms of this deed of partnership of 1947, the share in the income from the business in Ceylon which each of the eight persons was entitled to and obtained was his separate income. It was not any the less separate, though the sharers were members of coparcenaries. Membership of a coparcenary is quite consistent with an individual member holding profits in his own separate right and treating the income therefrom as his separate property, and that was the position each of the eight members occupied under the deed of 22nd March, 1947. There is no question of any coparcener blending his income with the income of the joint family. That was certainly impossible in the case of the minor coparceners. there was not even any evidence that S. Marimuthu and S. Srinivasan, who were adults and who constituted a coparcenary, pooled their separate income with the income of the properties which they held as a joint family. The income-tax law does not authorise "aggregation" of the separate income of the members of a coparcenary for purposes of a assessment to income-tax. So, with reference to 1947 and the subsequent accounting years, the apportionment of the income of the registered firm could only be on the basis that the share in the income which each of the eight persons was entitled to was his separate income and assessable only on that basis. So, with reference to 1947 and the subsequent accounting years, the apportionment of the income of the registered firm could only be on the basis that the share in the income which each of the eight persons was entitled to was his separate income and assessable only on that basis. On 22nd March, 1947, simultaneously with the execution of the deed of partnership for the management of the business connected with the Knightsdale group of estates, another partnership agreement of the Marieland group of estates.In the larger group Somasundara and Srinivasan, who represented the line of Arunachala, were also partners. But so far as the minor coparceners of the three joint families with which we are concerned in this case, who had their respective shares in the Knightsdale group of estates, the provisions of the two documents executed on 22nd March, 1947, were in no way inconsistent with each other. The minors were specifically admitted to the benefits of each of the two partnerships. The accounting years 1942 and 1943 fall outside the scope of even the first of the two partnership deeds dated 19th January, 1944. In each of the assessment years, corresponding to the accounting years 1942-1943 the assessee was a registered firm. No document to furnish the basis of assessment in these two years has been placed before us. In this assessment order for the assessment year 1943-44, corresponding to the accounting year 1942, the Income-tax Officer referred to an award of 1940 to which effect was given only after 1st January, 1942, and recorded that from 1st January, 1942, the proprietors of the Knightsdale group of estates were (1) S. T. P. Marimuthu, (2) R. M. S. Marimuthu Pillai, and (3) Minors Ramanathan and Ganesan. We have held, and this is indeed not a matter for dispute, that under the law of Ceylon by which title to the immovable property was governed, Marimuthu and his half-brothers held their shares in the Knightsdale Estates separately as co-owners. Property belonging to co-owners might be managed for or on their behalf and the income resulting from the management might be income from business, but by itself and in the absence of any evidence in that behalf, the income received would still be an incident of the co-ownership and would consequently be received by them in separate shares. Property belonging to co-owners might be managed for or on their behalf and the income resulting from the management might be income from business, but by itself and in the absence of any evidence in that behalf, the income received would still be an incident of the co-ownership and would consequently be received by them in separate shares. There is however nothing to prevent the sharers from conducting the business as partners and in that event the resultant profit would be attributable to their character as partners and not to their original co-ownership, though the property which is exploited belongs to the partners in common. We rested our decision with reference to the accounting years 1944, 1945 and 1946 on the terms of the deed of partnership dated 19th January, 1944. But for the specific provisions in that document, the position would have been that each of the eight co-owners of the Knightsdale group of estates was entitled to treat his share in the income even from the business which consisted of the management of the immovable properties which constituted the Knightsdale group of estates as his separate property. It is on that basis that the income of each of these eight co-owners should be assessed for the income for each of the accounting years 1942 and 1943. The Appellate Tribunal recorded in its judgment in the appeal preferred to it that the auditor's report which the assessee firm produced before the departmental authorities, itself apportioned the income from the Knightsdale estate between the three family units. The Tribunal observed : "This clearly shows that the parties themselves had no doubt in their minds that it was the three groups of families which were enjoying the income from the estate. There is not whisper in this report that the property or the income was that of the individual coparceners and not of the family. Then again, the partnership deed, dated 17th January, 1944, was executed by the three groups of families, and not by the individual members thereof and the shares of the three families were specified as one-half, one-fourth and one-fourth respectively." * The conduct of the assessee firm, evidence of which was furnished by the auditor's report, cannot affect in this case the legal rights and liabilities of each of the eight co-owners including the two adults referred to, S. T. P. Marimuthu and S. Marimuthu. Any subsequent dealing by them of the income so received would be wholly irrelevant to ascertain the character of the receipts in their hands, which was that of co-owners owning separate shares. As we have pointed out, there was no evidence that even as between S. Marimuthu and his undivided brother Srinivasan, there was any pooling of incomes from the business in Ceylon, which in law was the separate property of each of them. The others were minors, and no question of pooling by their own volition could arise in their case. We have also pointed out that apart from such pooling there can be no basis for any aggregation of the separate income of each of the members who constituted a coparcenary. The Tribunal was not entitled to apply to the conditions that prevailed in accounting years 1942 and 1943 the terms of the deed of partnership dated 17th January, 1944. Therefore with reference to the accounting years 1942 and 1943, the position is that, in the absence of any evidence on record to prove any partnership between the co-owners or the terms of any partnership, the liability to assessment in no way differs from that which should be the basis in the accounting year 1947 and thereafter. In our opinion except with reference to the income of the accounting years 1944, 1945 and 1946 the departmental authorities had no legal basis on which they could aggregate the shares in the income from the business of each of the coparceners. For the years other than 1944, 1945 and 1946 the share in the income from the business which each of the eight co-owners obtained must be treated as his separate income, and it could be taxed only on that basis.The first question in Case Referred No. 46 of 1951 ran : "Whether there was material on which the Tribunal could have come to the conclusion that the management and control of the firms' affairs was not situate wholly outside British India." This question arose only with reference to the assessment year 1943-44 and the corresponding accounting year 1942. Admittedly S. T. P. Marimuthu, who was in management, resided at Murugur. Admittedly S. T. P. Marimuthu, who was in management, resided at Murugur. As the Tribunal rightly pointed out, the burden lay upon the assessee firm to prove that no part of the control of the management of the Knightsdale group of estates of Ceylon was exercised by S. T. P. Marimuthu from India. If S. T. P. Marimuthu had any evidence to prove that the control over the management of the business was exercised all through the year 1942 only by his power-of-attorney agent in Ceylon, the assessee should have placed that material on record. In the absence of such material the decision of the Tribunal will have to be accepted as correct. Question 2 in Case Referred No. 108 of 1953 ran : "Whether the inclusion of the salary paid in the firm to S. T. P. Marimuthu Pillai for services rendered by him in the total income of the assessee family is legal and proper." * That salary earned by S. T. P. Marimuthu by his own efforts was obviously his separate property. It could not be said that the income that he received as remuneration for the services he rendered as in any way acquired by expenditure detrimental to the property of the joint family of which he was the kartha. The Tribunal, which confirmed the decision of the departmental authorities on that point, was not right in aggregating this item of what in law was the separate income of S. T. P. Marimuthu with the income of the joint family of which he was the kartha : See commissioner of Income-tax v. S. N N. Sankaralinga Ayyar and Murugappa Chetty and Sons v. Commissioner of Income-tax.The third question in Case Referred No. 108 of 1953 was : "Whether the assessee is entitled to the allowance under the proviso to section 4 (1) (c)." We find it a little difficult to understand what exactly was the claim made before the Tribunal. In the statement of the case the Tribunal recorded in paragraph 12(3) that the claim was : "The allowance of Rs. In the statement of the case the Tribunal recorded in paragraph 12(3) that the claim was : "The allowance of Rs. 4, 500 under the third proviso to section 4 (1) (c) of the Income-tax Act should have been made in respect of the share income from each of the three estates in Ceylon." * Whether by that they meant that the allowance could be claimed by each of the three joint families is not quite clear. But whether the claim was advanced as it was before us with reference to each of the eight co-owners of the Knightsdale group of estates, or with reference to the three family units, it is equally untenable. It was the registered firm that was assessed in all the relevant assessment years. The allowance provided for by the third proviso to section 4 (1) (c) of the Income-tax Act could be claimed only by the assessee, that is, in this case by the registered firm and not by each of the partners of the firm or by any of the minors admitted to the benefits of that partnership. See Mohanlal Hiralal v. Commissioner of Income-tax, C. P. and U.P., and Commissioner of Income-tax, Bombay v. Valiram Bherumal. Our answers to the questions referred to us in Case Referred No. 46 of 1951 are as follows. The first question is answered in the affirmative and against the assessee. The second question is answered in the negative and in favour of the assessee. Our answers to the questions referred to this Court in Case Referred No. 108 of 1953 are as follows. The first question is answered in the affirmative with reference to the accounting years 1944, 1945 and 1946 and in the negative with reference to the other assessment years. The second question is answered in the negative and in favour of the assessee. Our answer to the third question is that the assessee is entitled to no more than one allowance of Rs. 4, 500 under the third proviso to section 4(1) (c) of the Income-tax Act.Since neither side could claim to have succeeded in either of the cases we direct that there should be no order as to costs in either case. Reference answered accordingly.