State of Uttar Pradesh v. Raghuvansh Narain Singh — 1965 DIGILAW 348 (ALL)

JUDGMENT R.S. Pathak, J. - This and the connected special appeals are directed against the judgment of Brijlal Gupta, J. disposing of seven petitions filed by the respondent under Article 226 of the Constitution. 2. The respondent, Raghuvansh Narain Singh, formed a Hindu undivided family with his sons Sukhbansh Narain Singh, Mukhbansh Narain Singh, Udaybansh Narain Singh and Yadubansh Narain Singh. The Hindu undivided family was the proprietor of agricultural land. Apart from his undivided interest in the Hindu undivided family property, the respondent also owned self-acquired property. 3. On August 24, 1948 the respondent executed a deed under which, according to him, he severed his connection with the family and while retaining his self-acquired property renounced his interest in the Hindu undivided family property in favour of his four sons. 4. For the assessment year 1358F. (pertaining to the previous year 1357 Fasli) assessment proceedings were taken under the U. P. Agricultural Income Tax Act, 1948, and the assessing authority made three assessment orders, one against the respondent with his sons Udaybansh Narain Singh and Yadubansh Narain Singh, and the other two against Sukhbansh Narain Singh and Mukh Bansh Narain Singh as separate units, of assessment. Upon appeal aga ins the assessment orders, it was con tended that the respondent had separated from his sons by virtue of the deed of August 24, 1948. The Commissioner of Agricultural In come Tax held that the respondent and his four sons constituted a Hindu undivided family, and remanded the case for their assessment as a single unit. The respondent then applied in revision to the Board, but was unsuccessful. The Board held that the deed of 1948 was a fictitious and collusive document.. Against the order of the Board, the respondent applied for a reference to this Court and ultimately succeeded in obtaining from the Court an order to the Board directing a reference on certain questions of law. That reference was registered in this Court as Agricultural Income Tax Reference No. 189 of 1961 and was disposed of on December 12, 1963. 5. Meanwhile, consequent upon the remand order, the assessing authority took assessment proceedings against the Hindu undivided family, with the respondent as karta. Against the assessment order an appeal was preferred by the respondent,, and upon the dismissal of the appeal the respondent preferred a revision application before the Board. 5. Meanwhile, consequent upon the remand order, the assessing authority took assessment proceedings against the Hindu undivided family, with the respondent as karta. Against the assessment order an appeal was preferred by the respondent,, and upon the dismissal of the appeal the respondent preferred a revision application before the Board. This, was numbered as Agricultural Income Tax Revision No. 187 of 1958. 6. For the assessment years 1359F. to 1363F. (pertaining to the previous years 1358 Fasli to 1362 Fasli) the assessing authority similarly treated the respondent and his four sons as constituting a Hindu undivided family and made an assessment accordingly of its agricultural income. The assessments were upheld in appeal. Thereafter revision applications were filed before the Board, and these were registered as Agricultural Income Tax Revisions Nos. 188 to 192 of 1958. The Board dismissed the several revision applications Nos. 187 to 192 of 1958 by a common order. 7. The respondent then filed a petition under Article 226 of the Constitution, in respect of each of the seven assessment years, praying for certiorari against the orders of the assessing authority, the appellate authority and the Board. The petitions were heard by Brijlal Gupta, J. who by his order dated December 4, 1961 allowed them and quashed the orders. The appellants have preferred the instant and the connected special appeals. 8. In order to appreciate the contentions raised before us, it is necessary to examine what was decided by the Board in disposing of the revision applications and then the order of Brijlal Gupta, J. which is under appeal. 9. In the decision of revision application No. 187 of 1958 relating to the assessment year 1358 Fasli the Board considered that the principal point for determination was whether the respondent had separated from his sons, and this question was decided against the respondent by reference to the circumstance that he had relinquished his interest only in the Hindu undivided family property but retained his rights in his self-acquired property. This the Board considered as inconsistent with reason. I t also referred to a finding rendered by it earlier that the deed of August 24, 1948 was fictitious and farzi. While considering the revision applications Nos. This the Board considered as inconsistent with reason. I t also referred to a finding rendered by it earlier that the deed of August 24, 1948 was fictitious and farzi. While considering the revision applications Nos. 188 to 192 of 1958, pertaining to the assessment years 1359 to 1363 Fasli, the Board proceeded to determine the question whether the respondent and his four sons constituted a Hindu undivided family. It found that the cultivation by the respondent of his agricultural holdings was not separate from that of his sons. The management was common, and there was no proof that separate accounts were maintained of the income and expenditure in running and managing the agricultural holdings. Upon that finding, the Board held that the respondent had not separated from his sons and still continued to constitute a Hindu undivided family with them, and that the agricultural land continued to belong to that family. 10. In his order allowing the petitions for certiorari, Brijlal Gupta, J. held that the finding of the Board that the deed was fictitious and farzi was founded upon an entirely irrelevant consideration. He has referred to the order of the Board for the assessment, year 1357F. (pertaining to the previous year 1356F.) which, it is said, contains this finding, and pointed out that the consideration for the finding was that the respondent had relinquished his interest only in the ancestral properties and not in his self-acquired properties also. We may observe at this point that here the learned Judge was in error. That order of the Board is Annexure II to the counter affidavit. In the order, the Board has expressly refrained from rendering any opinion on the validity of the deed. It has confined itself to examining whether the respondent separated from his sons or whether the deed had the legal effect of disrupting the family. It referred to the omission in the deed of any recital indicating separation or partition, and to the statement that the respondent and his sons were members of a Hindu undivided family. It concluded that the respondent and his sons continued to remain joint. It referred to the omission in the deed of any recital indicating separation or partition, and to the statement that the respondent and his sons were members of a Hindu undivided family. It concluded that the respondent and his sons continued to remain joint. If this was the order upon which, as the learned Single Judge points out, the Board found the deed to be fictitious and farzi, we must hold that the consideration for that finding was not the retention by the respondent of his interest in his self-acquired properties while relinquishing his interest in the ancestral properties. The conclusion of the learned single judge that the finding that the deed was fictitious and farzi proceeded upon this ground and on no other cannot., we think be sustained. 11. Then, the learned Single Judge has pointed out that by the surrender of the respondent's interest in the ancestral agricultural holdings, they became the separate property of the sons "in which neither the father nor the other brothers of each individual son had any interest whatsoever" and that, therefore, the income accruing from the holdings was the separate income of the sons and not the income of the Hindu undivided family. Here again, we fear, we are unable to endorse this conclusion. The renunciation by a coparcener of his interest in the coparcenary property does not result in the disruption of the family but leaves the other caparceners joint. The renunciation of interest by a coparcener in the coparcenary property must be distinguished from the case where a coparcener leaves the family upon receiving his share in the coparcenary property; see Venkatapathi v. Venkatanarasimha, A.I.R. 1936 P.C. 264. and Mahadeo Misir v. Dirgpal Pande, I.L.R. 41 Allahabad 361. Consequently, if it can be held that in law the respondent had succeeded in relinquishing his interest in the ancestral properties, what remained was the coparcenary consisting of the sons. The agricultural holdings would now be the coparcenary property of those coparceners. I t would not be held by them as their individual separate property. 12. Taking the view that he did, the learned Single Judge came to the conclusion that the question whether, upon relinquishment of his interest by the respondent, the respondent and his sons continued to be joint or became separate was wholly irrelevant to the decision of the case. 12. Taking the view that he did, the learned Single Judge came to the conclusion that the question whether, upon relinquishment of his interest by the respondent, the respondent and his sons continued to be joint or became separate was wholly irrelevant to the decision of the case. It is this conclusion of the learned Single Judge which forms the essential basis for his finding that the Board had proceeded to dispose oI the case on irrelevant considerations, and that finding is challenged by the appellants before us. It is urged by the appellants that the question whether the respondent and his sons continued to be members of the Hindu undivided family in spite of the deed of August 24, 1948 is the real issue in the case. It is pointed out that the deed did not bring about the separation of the respondent from the Hindu undivided family and there was in law no relinquishment by the respondent of his interest in the ancestral holdings. It is contended that unless the respondent is able to establish that he had left the family, the deed was ineffective for the purpose of relinquishing his interest in the holdings. We are of opinion that there is force in this contention. It seems to us that it is not possible within the Hindu Law for a coparcener to relinquish his interest in the coparcenary property and yet continue as a member of the coparcenary. Unless the intention is to separate from the family, an attempt to relinquisli his interest in such property cannot succeed. We are supported in this view by the decisions of this Court in Shok Haran v. Faqir Chand, AIR 1936 Allahabad 452 where reference was made to Appa Pillai v. Ranga Pilla, I.L.R. (1883) 6 Mad. 71. 13. Now, what are the facts in the instant case ? The deed of August 24, 1948 is not on the record before its. The petitioner, it is true, has averred in para. 5 of the petition that as a result of that deed he severed his connection with the family. 71. 13. Now, what are the facts in the instant case ? The deed of August 24, 1948 is not on the record before its. The petitioner, it is true, has averred in para. 5 of the petition that as a result of that deed he severed his connection with the family. But in the absence of the deed it is difficult to accept that averment, because we find from the order dated May 14, 1951 of the Commissioner of Agricultural Income Tax Annextire I to the counter affidavit that: "On the other hand the father clearly reiterates by means of this deed that the members of the family have all along been joint before execution thereof and further narrates that after execution they remained joint." 14. Nothing has been shown to us to indicate that this assertion by the Commissioner is incorrect. 15. We are unable to hold that when the respondent attempted to relinquish his interest in the ancestral properties he intended to sever his connection with the family. On the contrary, the position appears to be that the respondent continued to be a member of the Hindu undivided family and there was in law no relinquisliment or renunciation of his interest in the ancestral holdings. 16. The contention of the respondent is that we are barred from examining whether the respondent left the Hindu undivided family and relinquished his interest in the ancestral holdings by the opinion returned by us upon the questions referred in Agricultural Income Tax Reference No. 189 of 1961 to which we have adverted above. On behalf of the appellants it is urged that the doctrine of res judicata does not operate in matters of taxation, and reliance has been placed upon Visheswara Singh v. Income Tax Commissioners, A.I.R. 1961 SC 1062 and Instalment Supply (Pvt.) Ltd. v. Union of Indian, Sales Tax Cases 489. We consider that, having regard to what was decided in the Agricultural In come Tax Reference the question whether the doctrine of res judicata applies does not arise at all. All that was considered in the Reference was whether upon the terms of the deed of 1948 it could be described as a deed of relinquishment by the respondent of his rights in the ancestral holdings or whether they merely indicated a relinquishment of his rights as karta of the family. All that was considered in the Reference was whether upon the terms of the deed of 1948 it could be described as a deed of relinquishment by the respondent of his rights in the ancestral holdings or whether they merely indicated a relinquishment of his rights as karta of the family. The contention on behalf of the respondent was that upon the language of the deed he relinquished his interest in the ancestral properties while the submission on behalf of the State was that he had merely relinquished his rights of management. We examined the terms of the deed, and we came to the conclusion that upon the provisions the respondent must be held to have intended relinquishment of his rights in the ancestral properties and not merely his rights of management. The question was never raised whether the respondent had in law succeeded in relinquishing his interest in the ancestral properties by the execution of the deed. 17. The second contention of the appellants is that an alternative remedy by way of reference was available to the respondent and, therefore, the petitions under Article 226 of the constitution should not have been entertained. This objection was not specifically taken before the learned Single Judge and he had no occasion to consider whether he should refrain from exercising his discretion in favour of the respondent because of the existence of an alternative remedy, When he did not consider the exercise of his discretion at all by reference to this objection, we, in our appellate jurisdiction, cannot hold that this is a case where discretion has been exercised arbitrarily or unreasonably. Consequently, this contention must be rejected. 18. Consequently, this contention must be rejected. 18. It is then urged for the appellants that the learned Single judge interfered with a finding of fact and this he could not do in the exercise of his jurisdiction under Art 226 It is pointed out that he entered into an investigation to do so After examining the order under appeal we are unable to hold that there is substance in this objection It seems to us that the learn ed Single Judge merely held that certain considerations, upon which the Board came to its conclusions that the deed of relinquishment was fictitious and farzi and that the income from the agricultural holdings was not the income of the sons alone but of the Hindu undivided family consisting of the respondent and his sons, were entirely irrelevant considerations, and that upon those considerations the findings of the Board could not be sustained in law. 19. In the view that we are taking, that it has not been established that the respondent ceased to be a member of the Hindu undivided family and that he had not, within the contemplation of law, relinquished his interest in the ancestral holdings, this appeal must succeed. 20. The appeal is allowed with costs. The order o the learned Single Judge is s aside, and the writ petition is dismissed.