SATTSH CHANDRA, J. ( 1 ) IN this reference made at the instance of the Revenue, the Income-tax Appellate Tribunal has referred several questions. But the crucial question of law arising out of the Tribunal's order is whether the business income earned by a proprietary concern owned by a Muslim widow and her minor children could be assessed in the status of an association of persons. ( 2 ) FOR the assessment year 1966-67, the Income-tax Officer assessed the income of the concern in the status of an association of persons. This view was upheld by the Appellate Assistant Commissioner, but was reversed by the Tribunal. The Tribunal held that the assessment was properly to be made on the widow as a representative assessee, under Section 161 of the Income-tax Act, 1961. ( 3 ) ONE Imam Ahmed Khan carried on the business as a whole saler in fish, under the name and style of "fida Hossain and Co. " as its sole proprietor. He died on March 3, 1960. He left behind his widow, Mrs. Moktar Begum, and seven minor children. The widow continued the same business in the same name and style. The profits of the business were, at the end of each year, credited in the respective accounts of the widow and the seven minor children, according to their legal shares. ( 4 ) ON the aforesaid short and simple facts, it is clear that the business whose income was liable to assessment to tax was initially owned by an individual. On Ms death, his widow and seven minor children came to own the business. ( 5 ) IN Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri, the Supreme Court ruled that on the death of a Mohammedan, his estate devolves on his heirs who succeed to the estate as tenants-in-common in specific shares. So, the widow and the seven minor children owned the business as tenants-in-common with defined shares. ( 6 ) FOR the Revenue, it was submitted that the income of this business having been earned by a collection of persons, it was liable to be assessed in the status of an association of persons. ( 7 ) IT is urged that Mrs. ( 6 ) FOR the Revenue, it was submitted that the income of this business having been earned by a collection of persons, it was liable to be assessed in the status of an association of persons. ( 7 ) IT is urged that Mrs. Moktar Begam, the mother, carried on the business in a dual capacity, one as herself as an individual and the other as the natural guardian of her minor children. As the natural guardian, she will be deemed to have agreed to carry on the business on behalf of the minors. The business was hence conducted by an association of persons. ( 8 ) SECTION 3 of the Indian Income-tax Act, 1922, as originally enacted provided for charge of tax in respect of the total income of "individual, company, firm and Hindu undivided family". By the Indian Income-tax (Amendment) Act, 1924, the words "individual, Hindu undivided family, company, the firm and other association of individuals" were substituted for the former words. The Income-tax (Amendment) Act, 1939, inter alia, changed the term "association of individuals" to "association of persons". This change was made to widen the net of taxation. The word "person" included artificial or juridical entities which were outside the purview of the term "individual". After the 1939 Amendment, an association of juridical persons like companies or firms could as well be taxed in the status of an association of persons. ( 9 ) SECTION 4 of the Income-tax Act, 1961, provided for charge of tax in respect of the total income of every person. Section 2 (31) of the Act defined a "person" to, inter alia, include an association of persons or body of individuals whether incorporated or not. ( 10 ) THE nature and character of the entity "association of persons" is by now well-settled. In CIT v. Indira Balkrishna [1960] 39 ITR 546, the Supreme Court observed (page 551) :"in re B. N. Elias [1935] 3 ITR 408 (Cal), Derbyshire C. J. , rightly pointed out that the word 'associate' means, according to the Oxford Dictionary, 'to join in common purpose, or to join in an action. ' Therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, and. ' Therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, and. as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains. This was the view expressed by Beaumont C. J. in Commissioner of Income-tax v. Laxmidas Devidas [1937] 5 ITR 584 (Bom) (at page 589) and also In re Dwamkanath Harishchandra Pitale [1937] 5 ITR 716 (Bom ). In re B. N. Elias, Costello J. put the test in more forceful language. He said : 'it may well be that the intention of the Legislature was to hit combination of individuals who were engaged together in some joint enterprise but did not in law constitute partnership'. " (p. 417 of 3 ITR ). ( 11 ) IN the case before the Supreme Court, three co-widows had inherited, inter alia, moneys lying in deposit and shares in a registered firm. They received interest and dividend income jointly. The Supreme Court held that they had not done any act which helped to produce income in respect of the shares in deposit. Mere receipt of income jointly is not enough to hold that the three widows could be taxed in the status of an association of persons. ( 12 ) IN Mohamed Noomllah v. CIT [1961] 42 ITR 115, the Supreme Court affirmed its decision in Indira Balkrishna's case. It emphasised that since the business was carried on by receivers with the consent of all beneficiaries, its income was assessable in the status of an association of persons. ( 13 ) IT thus appears that to constitute an association of persons, there should be a common venture or activity with a view to produce income, by more than one person joining together. The concerned persons ought to be consenting parties to the scheme of arrangement. The consent may be express or implied by conduct. ( 14 ) IT follows that the persons joining to form or carry on an enterprise must be competent to do so. They should be qualified in law to act or give consent. A minor, a lunatic or an idiot is incompetent to act in respect of his property, or even to enter into a contract (vide Section 11, Indian Contract Act ). They should be qualified in law to act or give consent. A minor, a lunatic or an idiot is incompetent to act in respect of his property, or even to enter into a contract (vide Section 11, Indian Contract Act ). If he does so, the act is totally void and of no legal effect. (Mohori Bibi v. Dharmodas [1903] 30 IA 114 ). ( 15 ) A minor can, of course, function through his guardian, that is, a person who in law is entitled to act for his minor. In Hindu law, a mother is the natural guardian for her minor children, in the absence of their father. She can act for the benefit of the minors. She can, to that end, deal with the minors' properties, as their natural guardian. But, in Muslim law, the position is quite different. There, the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Thereafter, the father is entitled to their custody (Section 352 of the Mullet's Principles of Mahomedan Law, 18th edition ). But in respect of the property of a minor, the position is that a mother has no right to be the guardian of her minor children. Section 359 of the Mulla's Principles of Mahomedan Law, 18th edition, states:"359. Legal guardians of property.--The following persons are entitled in the order mentioned below to be guardians of the property of a minor : (1) the father; (2) the executor appointed by the father's will; (3) the father's father ; (4) the executor appointed by the will of the father's father. " ( 16 ) THIS is based upon the decision of the Privy Council in Imambandi v. Mutsaddi, [1918] 45 IA 73, approved in Mohd. Amin v. Vakil Ahmad. ( 17 ) IN Section 360 of Mulla's book, it has been stated that in default of the legal guardians mentioned in Section 359, the duty of appointing a guardian for the protection and preservation of the minor's property falls An the court as representing the State. ( 18 ) SECTION 361 goes on to state that a person may neither be a legal guardian nor a guardian appointed by the court, but may have voluntarily placed himself in charge of the person and property of a minor. ( 18 ) SECTION 361 goes on to state that a person may neither be a legal guardian nor a guardian appointed by the court, but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called a de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. In Ali Mohammad v. Ramniwas, a mother and her minor son executed a mortgage deed. Later, the son, as plaintiff, wanted to redeem the mortgage. It was held that a de facto guardian has no power to transfer any right or interest in the property of the minor and that such a transfer is not merely voidable but void. Same was the decision in Parshotamdas Narsimbhai v. Bai Dhabu. ( 19 ) IN Mohammed Amin v. Vakil Ahmed, it was held that a de facto guardian has no authority to enter into a family settlement in respect of a minor's property, even though the settlement might be for his benefit. A Muslim widow was held not to have authority for entering into a partnership contract for her minor children (A. Khorasany v. C. Acha, AIR 1928 Rang 160 ). ( 20 ) UNLIKE the natural guardian of a Hindu minor, a de facto guardian has no right to act on behalf of a Muslim minor. If he does act on his behalf of a Muslim minor's property, his action is totally void and of no legal effect. In this state of law, a de facto guardian of a Muslim minor cannot be assumed or deemed to give valid consent to any activity or venture for carrying on business on behalf of the minor. In the present case, it has not been found that Mrs. Moktar Begum, the mother, who was the de facto guardian of her minor children, in fact, consented to carry on the business on their behalf as well. She carried on the business on her own and, at best, as the custodian of her minor children's property. As a custodian, she was disqualified from taking any decision with regard to the interest inherited by her minor children. She carried on the business on her own and, at best, as the custodian of her minor children's property. As a custodian, she was disqualified from taking any decision with regard to the interest inherited by her minor children. It cannot, hence, be assumed that the widow acted in a dual capacity, one in her own and the other as the guardian of her minor children in order to create a consensus for carrying on the business, by more than one person. In law, she was a representative assessee in relation to her minor children. Section 160 (1) of the Income-tax Act, 1961, provided :"160. (1) For the purposes of this Act, 'representative assessee' means- -. . . (ii) in respect of the Income of a minor, lunatic or idiot, the guardian or manager who is entitled to receive or is in receipt of such income on behalf of such minor, lunatic or idiot ". ( 21 ) THE widow was, in fact, in receipt of income on behalf of her minor children to the extent of their shares. She will be deemed to be the representative assessee liable to be assessed as such, and hence, not in the status of an association of persons. ( 22 ) FOR the Revenue great stress was laid upon the decision in Mohamed Noorullah v. CIT. In that case, one Mohd. Oomer, who was carrying on the business ol manufacture and sale of beedies, died leaving a minor son, Mohamed Noorullah, by his predeceased wife, a widow, Luthiunnissa Begum, and four minor children by her. Soon after the death, Noorullah through his next friend, Dawood, applied for permission to sue in forma pauperis. During the pendency of these proceedings, two advocates of the Madras High Court were appointed by the court as joint receivers of the properties and the business of the deceased by consent of all parties. The widow filed a suit for partition. The court ordered the continuance of the same receivers to carry on the business. In the beginning, Luthfunnissa and Dawood carried on the business and then the joint receivers continued the business. In proceedings for assessment of income-tax, the question was whether the business income was liable to be assessed in the status of an association of persons. Noorullah claimed that the share of the profits of each of the co-heirs should have been separately taxed. In proceedings for assessment of income-tax, the question was whether the business income was liable to be assessed in the status of an association of persons. Noorullah claimed that the share of the profits of each of the co-heirs should have been separately taxed. This plea was repelled. It was held that the business income was liable to be taxed in the status of an association of persons. The Supreme Court affirming the decision of the Madras High Court emphasised that the business was carried on as a single business with unity of control and by the consent of all the parties. This case is distinguishable. In that case, the point that a de facto guardian like the mother or next friend of minors cannot act or give consent on behalf of the minors carrying on the business was neither raised or decided. It appears that the court had passed an order appointing receivers with the consent of the parties. The court must have appointed Dawood and the mother as guardians of the minors. On such appointment by court, they became the legal guardians and could act on behalf of the minors. ( 23 ) IN the present case, however, there is no intervention of any court of law. The mother on her own could not act on behalf of the minors in respect of their shares of the business. ( 24 ) THE Tribunal held that the widow was managing the estate of her deceased husband including the business as a constructive trustee for the benefit of all the heirs of the deceased including the business as a constructive trustee for the benefit of all the heirs of the deceased including herself, whose shares were determinate. Even so, such a constructive trustee will not be a representative assessee under Section 160 of the Income-tax Act, 1961. Under Clause (iv) of Section 160 (1), a trustee appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise is alone the representative assessee. ( 25 ) THE Tribunal has referred, for our opinion, the following four questions :"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that no association of persons carried on the business and the assessment made in the status of an association of persons was accordingly invalid ? 2. ( 25 ) THE Tribunal has referred, for our opinion, the following four questions :"1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that no association of persons carried on the business and the assessment made in the status of an association of persons was accordingly invalid ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal misdirected itself in law in holding that there should be evidence of a consent between the parties, namely, the mother and the minor children in order that the business could be held to have been carried on as an association of persons ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in ignoring the fact that there was common purpose and/or common action by the mother acting on her own behalf and as the guardian of the minor children in carrying on the business and thereby holding that the business was not being carried on by an association of persons ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that Mrs. Moktar Begum, widow of Imam Ahmed Ktiau, was managing the estate including the business as a constructive trustee for the benefit of all the heirs of the deceased including herself whose shares were determinate ? " ( 26 ) OUR answer to the first question is in the affirmative and against the Department. The second question is answered in the negative and against the Department. The third question is answered in the affirmative and against the Department and in favour of the assessee. The fourth question is not. very material but since it has been referred to us, it is answered in the affirmative and in favour of the assessee and against the Department. We make no order as to costs.