Judgment 1. This is a reference under Sec. 66(1), Income-tax Act, and the question, which has been referred la this: "Whether the sum of Rs. 9,000.00 received by the assessee is exempt under Sec.14 (1), Income-tax Act". The facts as found are the following. Raja Durga Prasad Singh was the holder of an impartible estate, known, as the Jharia Raj Estate. He died on 7-3-1916, leaving three widows. On his death, his next of kin Raia Shiva Prasad Singh, took possession of all the properties left by him. There was a protracted litigation over the inheritance between the widows and Shiva Pra-sad Singh. The widows claimed the properties by right of inheritance on the ground that the family of the late Raja had ceased to be a Joint family and the properties left by him were his separate properties. Raja Shiva Prasad Singh, on the other hand contended that the family continued to be an undivided joint family, and that on the death of Raja Durga Prasad Singh, he got the estate and the properties by right of survivorship and the custom of lineal primogeniture. The litigation went up to the Privy Council. The final result of the litigation was that the family was held to be joint and Raja Shiva Prasad Singh was held to be entitled to hold the estate and properties of the Jharia Raj. One of of the terms of the decree which was passed was: "It is declared that each of the Plaintiff (meaning thereby the two widows and the legal representatives of the third widow who had died in the meantime) is from 19-6-1933, entitled to a maintentnce allowance of Rs. 750.00 per month from the defendant, and it is further ordered and decreed that such maintenance allowance do form a charge on the impartible estate." 2. The assessee, Rani Hem Kuinari Debi, was one of the widows of Raja Durga Prasad Singh. For the assessment year 1948-49, which is the assessment year in queStion in the present case, she filed a blank return declaring that the income she received at Rs. 7507- per month, in the assessment year, being her (maintenance allowance, was not taxable. The assessee, Rani Hem Kuinari Debi, was one of the widows of Raja Durga Prasad Singh. For the assessment year 1948-49, which is the assessment year in queStion in the present case, she filed a blank return declaring that the income she received at Rs. 7507- per month, in the assessment year, being her (maintenance allowance, was not taxable. It appears that the payments of maintenance allowance, made by Raja Shiva Prasad Singh to the Ranis under the terms of the decree referred to above, were deducted in arriving at his total income up to the 1936-37 assessment. The income tax authorities refused to allow such deduction in computing the income of the flaja for the assessment year 1937-38. Thereupon the Raja brought the matter up to this Court, and in,-- Shiva Prasad Singh V/s. Commr. of Income-tax B and O. AIR 1942 Pat 456 (A), this Court held that the amount, which the Raja paid as maintenance allowance to the widows 171 the year of assessment there in question, was an allocation of a sum out of his revenue before it became income in his hands, and, therefore, the Raja was not liable to pay tax on the said sum. 3. Following the decisions of the Department in the past for the assessment years 1944-45 to 1946-47, the Income-tax Officer held that the total amount of Rs. 9,0007- was assessable as the income .of the present aseessee. The assessee appealed to the Appellate Assistant Commissioner and the latter confirmed the assessment on the basis of the assessments made for the years 1944-45 to 1946-47. For the assessment years 1940-41 to 1946-47 and also for 1947-48 the assessee had appealed to the Income Tax Appellate Tribunal against the inclusion of the maintenance allowance in her assessments. The Tribunal upheld the assessees contention for those years. The assessee again appealed to the Income Tax Appellate Tribunal for the assessment made in 1948-49 and claimed that the sum of Rs. 9,0007- received by her was exempt from taxation under Sec.14 (1), Income-tax Act. This time there was a difference of opinion between the two members of the Tribunal. The Judicial Member held that the appeal of the assessee should be allowed, while the Accountant Member held that the appeal should be dismissed The appeal was referred to the President of the Tribunal under Sec. 5A (7), Income-tax Act. This time there was a difference of opinion between the two members of the Tribunal. The Judicial Member held that the appeal of the assessee should be allowed, while the Accountant Member held that the appeal should be dismissed The appeal was referred to the President of the Tribunal under Sec. 5A (7), Income-tax Act. The f resident agreed with the Accountant Member and held that the appeal should be dismissed. The appeal was accordingly dismissed. Then on an application by the assesses the Tribunal made -the present reference to this Court under Sec. 66 (1), Income-tax Act. 4. We have heard learned Counsel for the assessee and learned Counsel for the Income Tax, Department. Sec.14 (1), Income-tax Act was amended in 1944 and then again in 1948. The amendment made in 1948 came into effect from 30-3-1948. It has not been disputed before us, and indeed it is well settled, that in income-tax matters the law to be applied is the law in force in the assessment year, unless otherwise stated or implied - Commr, of Income Tax West Bengal V/s. isthmian Steamship Lines, AIR 1953 SC 439 (B). Therefore, in the present case we have to consider Sec.14 (1), Income-tax Act as it stood after the amendment of 1948. Amended Sec.14 (1) is in these terms, "The tax shall not be payable by an assessee in respect of any sum which he receives as a member of a Hindu undivided family where such sum has been paid out of the income of the family or in the case of an impartible estate where such sum has been paid out of the income of the holder of the estate belonging to the family." The question is it the assessee is entitled to claim-exemption under the aforesaid provision in respect of the sum of Rs. 9,000.00 which she received from the holder of the impartible estate. 9,000.00 which she received from the holder of the impartible estate. Whatever may have been the position under Sec.14 (1) previous to the amendments of 1944 find 1948, it is clear that after the amendments the assessee has to fulfil the following conditions before he she can claim exemption under Sec.14 (1), firstly the assessee must satisfy that he or she received the sum as a member of a Hindu undivided family; secondly he or she must prove that the sum has been paid out of the income of the family or in the case of an impartible estate, that-the sum has been paid out of the income of the holder of the estate belonging to the family. There is no doubt that in the present case the assessee is a member of a Hindu undivided family and she has received the sum as a member of the family, being the widow of the late Raja Durga Prasad Singh. But the crux of the question is if the second condition is fulfilled, namely, whether the sum of Rs. 9,0007- which the the assessee has received has been paid out of the income of the holder of the estate belonging to the family. The holder of the estate is Raja Shiva Prasad Singh. He is no doubt a member of the joint family, as held by the" Privy Council, but the point is if the sum of Rs. 9,0007- which he paid to the assesse(c) was paid out of his income. This very question was considered in AIR 1942 Pat 456 (A), and it was clearly held that the amount which Raja Shiva Prasad Singh paid to the widows of the late Raja never became income in his hands. Manohar Lall, J. with whom Harries, C. J. agreed quoted the observations of Lord Macmillan in -- Bejoy Singh Dudhuria V/s. Commr. of Income Tax, Bengal, AIR 1933 PC 145 CO, and said that the situation was exactly the same in the case before their Lordships. The observations of Lord Macmillan were these: "When the Act by Sec.3 subjects to charge all income of an individual, it is what reaches the individual as income which it is intended to charge. of Income Tax, Bengal, AIR 1933 PC 145 CO, and said that the situation was exactly the same in the case before their Lordships. The observations of Lord Macmillan were these: "When the Act by Sec.3 subjects to charge all income of an individual, it is what reaches the individual as income which it is intended to charge. In the present case the decree of the Court by charging the appellants whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather, the allocation of a sum out of his revenue before it becomes income in his hands." If these observations apply exactly in the matter of the payments made by Raja Shiva Prasad Singh to the widows of the late Raja as irain-tenance, which maintenance was under the decree a charge on the impartible estate, it is difficult to see how it can be said in this case that the assessee has fulfilled the second condition of Sec.14 (1), Income-tax Act. It is true that in AIR 1942 Pat 456 (A), their Lordships thought it unnecessary to decide whether the Rani was liable under the Indian Income-tax Act to assessment in respect of the payment received by her. Their Lordships did not think it necessary to decide the question at that stage, and Sec.14 (1) as it then stood was somewhat different from Sec.14 (1} as it stands now after the amendments of 1944 and 1946. Some of the earlier decisions on Sec.14 (1) suggested that the object of the section waa to exempt, double taxation, and in AIR 1942 Pat 456 (A), one of the points urged was that the maintenance allowance received by the Rani being exempt under Sec.14(1) as it then stood would altogether escape taxation, if it were held that the amount was not taxable in the hands of the holder of the estate. It was with reference to this argument that Manohar Lall, J. said that it was unnecessary to consider the correctness of certain earlier decisions as to whether the Rani was liable under the Indian Income-tax Act to assessment in respect of the payments received by her. 5. There are several decisions with regard to the interpretation of Sec.14 (1), Income-tax Act as-it stood before the amendments of 1944 and 1948. The learned Accountant Member of the Income-tax Appellate Tribunal has referred to those decisions. We do not think that any useful purpose will be served by examining those decisions; in detail. We think it is enough to refer to the decision of their Lordships of the Judicial Committee in -- Commr. of Income-tax, C. P. and UP. V/s. Mt. Bhagwati. AIR 1947 PC 143 (D). It was observed by Sir Madhavan Nair. who delivered the opinion of the Board: "Under the Act, a Hindu undivided family is treated as a unit of taxation. Sec.14 (1) of the Act exempts an assessee from payment of the tax in respect of any sum which he receives as a member of a Hindu undivided family. It is,clear that the object of the section is to avoid double taxation. The question in the present case is what has the respondent to prove in order to claim the benefit of the section. In support of his contention Mr. Tucker relied on two decisions: (1) -- Commr. of Income-tax, B and O V/s. "Lakshmibati Saheba, AIR 1935 Pat 3 (E) and (2) -- Commr. of Income-tax B. and O. V/s. Vi-sheswar Singh, AIR 1935 Pat 342 (SB) (F). The judgments in both cases were delivered by Agarwala J. In the first case, the learned Judge stated that Sec.14 (1) of the Act premises (1) a Hindu undivided family (2) that the person claiming exemption is a member of the family and (3) that the sum referred to is received as a member of the family. The judgments in both cases were delivered by Agarwala J. In the first case, the learned Judge stated that Sec.14 (1) of the Act premises (1) a Hindu undivided family (2) that the person claiming exemption is a member of the family and (3) that the sum referred to is received as a member of the family. Then the learned Judge made general observation about the meaning and application of the section but no occasion arose for the application of the principles which the learned Judge elucidated, to the case before him, as he held on the facts that the assessee did not, during the assessment by the Income Tax Officer or in her appeal from that assessment, raise the issues necessary for the determination of the questions of fact which arise under Sec.14 (1). The learned" counsel submitted that as the conditions required for applying the section as stated in the judgment did not exist with respect to the respondent at the time of the assessment for reasons already explained, she is not entitled to claim exemption under the section. In their Lordships view all that is required to be proved by the respondent at the time of the assessment in order to claim exemption under the section is that she is receiving the sum in question in her capacity as a widow of the deceased coparcener of a Hindu undivided family, if she proves that she is receiving the sum in that capacity or status, then she is entitled to exemption under the section. If the decision, means that the respondent should prove anything more than what their Lordships have stated she should prove to claim the exemption then they are unable with great respect to agree with it. The second decision relied on does not advance the appellants case much further. In the next decision of the same Court, - Commr. of Income-tax, B. and O V/s. Gyan Manjuri Kuari, AIR " 1945 Pat 205 (G), which was stated by Mr. Tucker to be against him the test to be applied when exemption is claimed under the section was thua stated by Fazl All C. J.: The question is whether the maintenance is received by her (the assessee) by virtue of some right whether based! on custom or law, or is in the nature of a gift or indulgence. Tucker to be against him the test to be applied when exemption is claimed under the section was thua stated by Fazl All C. J.: The question is whether the maintenance is received by her (the assessee) by virtue of some right whether based! on custom or law, or is in the nature of a gift or indulgence. The learned Chief Justice followed the previous decision of his own Court, AIR 1935 Pat 342 (SB) (F), and various other decisions of other Courts including one of the Madras High Court, viz, - Commr. of Income-tax V/s. Narayana Gaja-pathi Raju, AIR 1934 Mad 608 (SB) (H), where it was held by Ramesam, J. with reference to the facts of the case that, the question in the case is not whether the income belongs- to the Zamindar or. whether it belongs to the joint family of which the assessee is a member, but whether the assessee received his payment as a member of a Hindu undivided family. Agarwala J. in the second decision of the Patna High Court referred to above, thought that the principle was stated too widely in that case. A few other decisions were also referred to by the learned counsel. Their Lordships do not propose to discuss these decisions in detail, as it appears to them that the test to be applied when exemption isclaimed under the section is clear End is what they have already stated viz. if as in the present case a Hindu widow proves that she is receiving the allowance in question by virtue of her right or in her capacity as a member of the Hindu undivided family, then she is entitled to claim the benefit of the section". 6. It is clear from the aforesaid observation that the test which was laid down was simply this, whether the assessee received the sum in question as a member of a Hindu undivided family, that is in the case before their Lordships whether the assessee received the sum in question in her capacity as a widow of the deceased coparcener of a Hindu undivided family. As was observed by Ramesam J. in AIR 1934 Mad 608 (SB) (H) at p, 610. As was observed by Ramesam J. in AIR 1934 Mad 608 (SB) (H) at p, 610. "The question in the case is not whether the income belongs to the Zamindar, or whether it belongs to the joint family of which the assessee is a member but whether the assessee received the payment as a member of an undivided Hindu family." We are of the opinion that after the amendments of 1944 and 1948 a second test has to be fulfilled. As the section itself says, in the case of an impartible estate, the sum must have been paid out of "the income of the holder of the estate belonging to the family. In the case under our consideration we think that the majority of the members of the Income-tax Appellate Tribunal rightly took the view that this second test was not fulfilled. 7 Learned counsel for the assessee tried to distinguish the decision in AIR 1942 Pat 456 (A), on the ground of a distinction between income and taxable income. We do not think that such a distinction, even if it can be made with reference to other provisions of the Indian Income-tax Act, is appropriate in the present casa The decision in AIR 1942 Pat 456 (A), proceeded on the footing, to quote the words of Lord Macmil-lan, that "the sum which was paid to the Ranis was in the nature of an allocation of a sum out of his revenue before it became income in the hands of the holder of estate. If that be the correct ratio of the decision, as we think it is, then it is clear that the second test laid down by Sec.14 (1), Income-tax Act, as amended in 1948, is not fulfilled. 8. For these reasons we hold that the amount of Rs. 9,000.00 received by the assesses Is not exempt under Sec.14 (1), Income-tax Act, and accordingly we answer the question in favour of the Income-tax Department and against the as- sessee. The Income-tax Department is entitled to their costs; hearing fee Rs. 200.00 only.