COMMISSIONER OF WEALTH TAX, WEST BENGAL v. CHAMPA KUMARI SINGHI & Ors.

The other two questions were not pressed before the High Court, presumably in view of the decision in Banarsi Dass v. Wealth Tax Officer, Special Circle, Meerut( 1). B According to s. 2(c) of the Act assessee means a person by whom Wealth tax or any other sum of money is payable under the Act and includes : - ( i) every person in respect of whom any proceed ings under this Act has been taken for the deter mination of wealth tax payable by him or b} any other person or the amount of refund due to him or such other person; (ii) every person who is deemed to be an assessee under this Act; (iii) * * * * f,f * (•" Section 3 is in the following terms : - "Charge of wealth tax-Subject to the other provi sions contained in this Act, there shall be charged for every (assessment year) commencing on and from the first day of April 1957, a tax (hereinafter referred to as wealth tax) in respect of the net wealth on the cor responding valuation date of every individual, Hindu undivided family and company at the rate or specified in the schedule". c D E F the expression The only other provision in the Act in which "Hindu" undivided family" occurs is s.

20. It deals with assess ment after partition of a Hindu undivided family. Under s. 3 G of the Act it is the Hindu undivided family which is one of the It should be distinguished from a Hindu assessable entitieS. co-parcenary which is a much narrower body the Joint family. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary includes only those H who acquire by birth an interest in the joint coparcenary pro perty, being the sons, grandsons and great grandsons of the holder of the joint property. Thus \here can be a joint Hindu family (I) 56 1.T.R. 224. 9-L%lS"PCl '72 122 SUPREME COURT llBPORTS (1972) 3 S,C.R. ). consisting of a single male member and widows of · deceased A It must be remembered that the words "Hindu coparceners. undivided family" are used ln th!!! Income tax statutes with refe· rence not to one school of Hindu law only but to all schools.

The sole previous decision in which an identical question came up for the Nagpur consideration under the Income tax law is that of Judicial Commissioner's Court in Nathu Sao v. Commissioner of B Income tax C.P. & Berar( 1 In that case the assessee was a member of the Lad Yaish community and was a Jain. He claim· ed to be governed by the Hindu law and contended that his widowed mother and widowed aunt who lived with him ronsti· tuted a Hindu joint family. It was held that ordinarily Hindu Law applied to Jains in the absence of proof of custom or usage to the contrary and that the expression "Hindu undivided family" C did not mean a Hindu coparcenary but was a wider expression which would take ln the widowed mother aald the widowed aunt of the assessee in that case. No contrary view seems to have been expressed in any other case subsequently and it appears that it is for the first time that the Calcutta High Court in the ment under appeal has upheld the contention that a Jain undivid· D ed family cannot fall within the expression "Hindu undivided It will not be out of place to mention that indisputably family". eVCll" since income tax laws have been inforce no distinction has ever been made between a Jain undivided family and a Hindu undivided family and a Jain family has always been assessed as a Hindu undivided family.

Even in the making returns of Income tax no such differentiation or distinc tion has ever been made. forms prescribed for E The main reasoning which prevailed with the High Court that although Hindu law applies to Jains except in so far as such law is varied by custom, Jains do not become Hindus in the same F way as Khojas and Cutchi Memons of Bombay and Sunni Borahs of Gujarat etc. cannot be regarded as Hindus although Hindu law applies to them in matters of inheritance and succes sion. Moreover, Hinduism does not include Hindu converts to Christianity and Islam and also dissenters from Hinduism who formed. themselves into distinct communities or sects with peculiar G religious usages so divergent from the principles of the Shastras that they could not be regarded as Hindus. Reliance was placed on the decision of the Mysore High Court. in P. F. Pinto v. Com In that case the ancestors missioner of Wealth Tax, Mysore(•). of the assessee were originally Hindus.

They later on became converts to Christianity. It was found that although for the pur poses of succession to property the Hindu law was still applicable H to the family of the assessee, he could be assessed only as an (I) 2~1.T.R. 463. (I) 65 I.T.R. !23. COMM~. WEALTH-TAX v. CHAMPA (Grover, J.) 123 A B individual for wealth tax purposes and could not be assessed in family. The Mysore High the status ?f ~ Hindu undi.v.ided Court was mctmed, to the view that the expression 'Hindu undi vided family' in s. 3 of the Act was limited to Mitakshra families or. families of persons professing Hindu religion governed by M1takshra law and thus it could not include a Christian undivid ed fam!IY alth?ugh governed by Hindu law. The Calcutta High Court ID the judgment under appeal, however, did not consider that the My~ore High Court was right in holding that s. 3 of the It may be pointed Act was limited only to Mitakshra families. out that so far as Income ta11: law IS cvno•rned the expression 'Hindu undivided family' has been held to have rerer•nce to all •chool• nf Hindu law and not one school only. [Se.. K .. 1,_,1.

Vithal Das v. Commissioner of Income tax(')]. D E The real question for detennination is whether the word 'Hindu' preceding the words 'undivided family' signifies that the undivided family should be of those (i) who profess Hindu religion; or (ii) to whom Hindu Jaw applies; or (iii) who though not professing Hindu religion have come to be regarded as Hindu undivided family by judicial decisions and legislative prac'tice. It may be mentioned that for a Jong time the courts and parti cularly the Privy Council seem to have taken the view that Jains are of Hindu origin; they are Hindu dissenters and although gene- rally adhering to the ordinary Hindu Law they do not recognise any divine authority of the Vedas nor do they practice a number of ceremonies observed by the Hindus. But the modern trend of authority is against the view that Jains are Hindu dissenters. As a result of comparative research in Hinduism, Jainism and 'Buddhism, it is being emphatically claimed that the theory that Jains are Hindu dissenters is based on a misreading of the ancient these religions (See C. R. Jain-'Jain authorities Law'-pp.

3-23 and 219-258). One of the early decisions which Ji1ins were stated to be of Hindu origin being Hindu dis senters is that of Westropp C.J. in Bhagwandas Tejmal v. Ra,;.. mal('). The learned Chief Justice based his view on high authority including the researches of Mr. Mountstuart Elphin- stone, !.:ate Col. Mackenzie (9th Vol. of the Asiatic Resea~ches. including the essay of Mr. Cole Brooke on the Sect of Jamas), the .work of Abbe Dubois on the Manners etc. of the People of India and tl1e elaborate account of the Jain sect the First Volume of Prof. H. H. Wilson's work. He also referred to cer tain decisions of the Sudder Divani Adault in Calcutta and H High Court of Calcutta; in particular to the opinion of Peacock C.J. in Lala Mohabeer Pershad v. Musammut Kundar Koover('). relating F G (I) L.R. 64 I.A. 28. (1) (!873) (3) 8 Cal. W. Rep. 116 Civ. Ru\. IO llom. HCR 241. 124 SUPREME COURT REPORTS . (1972] 3 s.c.R. The following passage from the judgment of.

W estropp CJ. ls noteworthy : - "The term Hindu or Gentu, when used in Regula tions Act, Statutes, and Charters in which Hindu.s or Gentus have been declared .entitled to the benefit of their own Jaw or succession and of contract, has been largely and liberally construed. See the remarks at pages 184, 185, 186, S Born. High C. RepOrts (Lopes v. Lopes), where Sir Edward Hyde East's evidence in 18 30 before the House nf Lords' Committee is mention- ed, in which ho stated that Stlchs were treated as a sect of Hindus or Gentus of which they woro " dissenting branch. The authorities, already 9uoted, show J ainas are regarded as a sect of Hindus. " B c Out of the decisions of the Privy Council, we may mention Sheokuarbai v. · Jeoraj(•1) in which their lordships relied on the statement in Mayne's Hindu law and Usage that Jains are of Hindu origin; they are Hindu dissenters and although "generally D adhering to ordinary Hindu law, that is, the law of superior castes, they recognise no divine authority in the Vedas and do not practice the Shradha-or ceremonies for the dead".

The above view has been challenged by 1 ain historians and writers and .it has been maintained that the 1ains are quite dis- E tinct f~ Hindus and have a separate code of law which un fortunately was not brought to the notice of then:ourts. Kumara swami sastri, Officiating Chief 'Justice; delivering the·. judgment of. the Bench in· Bobbaladi Gateppa v. Bobbaladi · Etmrtrila d: Others( 2 ) elaborately diseussed the contrary· view . and observed that if the matter wtiro res integra be wouldi •be inclined tt> hold that modern research had shoWn _that Jains' were' not Hindu' ells- senfers but that Jainism had an origin and ~tm.r long iilltetior to Smritis and commentaries which were recOiiil'sed authorities of Hindu law and •ilsage. Ii'_ · Mr. C.-R. Jain hi his work "Jain Law"writtcm, ln 1926 has discusSed the finding& of varioui. Opentalists s~uent ~ thoee mentioned in the. judf!1Cnt of Westiop}l C.J •. and bas: put fonv.al:ll G the thesis that Hindws!ll apd Jainism were parilllel creeds .th'!!Jjb they shared the same forni of social order lUi4 mode :,'of liVin,. Jain Law was quite independent of Hindu, law.: .. According -~ him the Courts had tried on each dccasion to.asi:ertaBi the,,Taiil Law but unfortunately for various -reasons .Jains concealed Sha~tras and objected : to their production in .Courts.

He ... B emphasised that Jain 4tw which is found in the. available. boob· should still be applied and the error which has CreJ>t in the matter · (I) [1921] P.C. 77. . (2) A.I.R. 1927 ·Mad. 228, _ COMMR. WEALTH-TAX v. CHAMPA (Grover,/.) 125 A of Jains being governed by Hindu Law should be rectifieil. Since 1926 there have been several enactments apart from the codifi cation of certain major Branches of Hindu law which in express terms have been made applicable to Jains. The course suggested by C. R. Jain cannot possibly be followed particularly in the pre sence of statutory enactments. B In Panna Lal & Others v. Sitabai(1), Hidayatullah J. (as he then was) delivering the judgment of the Divis.ion Bench observed that "Jains' are not that it was too late in the day to contend included in the term "Hindus" for the purposes of law. He referred to Mayne's Hindu law as also the leading cases on point apart from West and Buhler's Hindu Law (4th E<ln.), Gopal C Chandra Sarkar's Hindu Law (7th Edn.) and Harl Singh Gour's Hindu Code (4th Edn.).

All these are acknowledged authorities and the conclusion which was derived not only from the state ments contained in their works on Hindu law but also from decid ed cases was that the Jains were to be re~arded as Hindus for the purposes of law though they seem to d1Ssent from eome of the In the Nagpur cilSe the ques tion which was being considered was whether The Hindu Women's Right to Property Act 1937 was meant to apply that CO!lpection Jains as weJI or to ·Hindus proper. that the extent to which Jains were governed by Hiadu law or were to be treated as Hindus for purposes of that Jeilv came up for discussion. The following passage may be 111*oduced with advantage : - D principles of orthodox Hinduism. It was in E "The .legislature must be taken to be aware of the pronouncements of the Privy Council as well as leading decisions of the Indian High Courts where a liberal interpretation was given to the tetlll 'Hilldu'.

We do not think that the Legislature used without advertence to these dicta and, in· our judgment, the Legislature must be deemed to have used the term "Hindu' in that larger sense which has beeo explailed by Mayne at page 5 of his treatise in the paS&age quoted by us elsewhere and which has been the fouodation of decisions on the subject in the courts of I~dia"; F G It may be mentioned that the statement from Mayne's Hindu Law referred to above is the same which was relied upon by the Privy Couneil in Sheokuarbai v. Jeoraj("). ' We may next notice certain decisions in · which . the. word 'Hindu' as used in various statiites came to bci intetpreted by the s. 331 of the Indian (2) A.I.R. 1921 P.C.14. H Courts.· In Kamawali v. Dlgbijai Singh( 8 (l) I.LR. 1954 N~BPur 30. ) (3) [1921] J'.C. 77. 126 SUPREME COU!l.T REPORTS (1972] 3 S.C.R. Succession Act 1865 had to be interpreted. According to that A section the provisions of that Act were not to apply to intestate It was or testamentary succession to the property of any Hindu. religion held that the person who had .ceased to be a Hindu in and had become a Christian could not elect to be bound by Hindu Law in the matter of succession after the passing of Indian Succession Act and that a Hindu convert to Christianity B was solely governed by that Act.

In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was not a Hindu within the meaning of s. 331 of It was held in Bachebi v. Makhan Lal & An aforesaid Act. other(') that the term 'Hindu' ins. 331 of the Indian Succession Act 1865 included a Jain and consequently in matters of suces- C sion Jains were not governed by that Act. It was pointed out that the ordinary Hindu law of Inheritence was to be applied to Jains in the absence of proof of custom or usage varying law. The Privy Council in Bhagwan Koer v. J, C. Bose & Others(') expressed the view that a Sikh was a 'Hindu' within the meaning of that tern1 as used in s. 2 of the Probate and Adminis tration Act 1881. acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was pointed out that the Courts had always D It was observed : "It appears to their Lordships to be clear that s.

331 the term "Hindu' is used in the same wide sense as in earlier enactments, and includes Sikhs. If it be not so, then Sikhs were, and are, in matters of inheritence. governed by the Succession Act, and Act based upon, and in the main embodying, the English law; and could not be seriously suggested that such was intention of the legislature". E F In Ambalal v. Keshav Bandlwchan& Gujar( 3 ) the question was whether Jains were governed by Hindu law of Inheritence (Amendment) Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indiiin Succession (Amendment) Act of 1929 speaks of Jains as-well as Hindus and ss. 4 and 57 of the Indian G Succession Act 1925 also did the same. The Court pointed out thats. 331 of the Indian Succession Act 1865 did not make any separate mention of Jains and even then it had been held that the term 'Hindu' included Jains.

The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindus being governed by certain sections of the H (I) I.L.R. 3 All. 55. (2) l.L.R. 31 Cal. 11. (3) !.L.R. i 941 Born. 250. COMMR. WEALTli·TAX V, CHAMPA (Grover, I.) 127 A B 0 Succession Act of 1865 and the Indian S11ecession Act 1925 was a cc111solid!lting A~t which repealed the previous Act of 1865 .. as well as H11;1du Wills Act of 1870. It was, therefore, probably th?ugh.t necessary e~·majore cautela to separately mentiOiD. I ams m the consolidating measure. However in all the other e.nactmen~ affecting the Hindu Law there was' no separate men· tion of Jams along with the Hindus. The Jains were therefore governed by the Hindu Law of Inheritence (Amen~ent) Act 1929. The mention of Jains separately in Article 25 of die Constitution was noticed in Panlltlla/ v.

Sita Bai(1) and it was obse~ that the .framers of t~e Constitution felt, having regard to the differences m the two faiths that an express mention might c be made of all faiths ex-abundanti cautela and to put the matter beyond all controversy, and that faith is one thing and another and the Constitution could not be taken to ha.ve undone the long series of decisions on the subject. Before the amend· ment and codification of major branches of Hindu law by the four statutes, i.e. The Hindu Marriage Act 1955, the Hindu Succes· sion Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoption and Maintenance Act, 1956, the undisputed position was that the Jains were governed by the Hindu law modi fied by custom and a Jain joint family was a Hindu joint family with all the incidents attached to such a family under the_Hindu law. The legislative practice also was to generally treat Jains as included in the tern1 'Hindu' in various statutory enactments.

E Wherever Jains were mentioned in addition it was only by way of abundant caution. The new statutes did not change situation and it is not possible how the High Court in !'he judg ment under appeal pressed them into service in support of view. The fallacy underlying the reasoiling of the High Court is that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a forni or a development of Hinduism. That is an erroneous approach. We are not con· cerned with the question whether J ains are a sect of Hindus <!r !s Hindu dissenters. Even if the religions are different, what common is that all those who are to be governed by the prov1· s10ns of these enactments are included in the terni 'Hindu'. They are to be governed by the same rules relating to marriage, succes· G sion, minority, guardianship, adopti~n :ind m~~nance as Hindus. The statutes thus accord legJSlative recogmtton to the .fact that even though J ains may not be Hindus by religion they are to be governed by the ~e l~w~ as the . ?indus. . I~ tbfas view of the matter the expression Hindu undivided family will certainly include the 'Jain undivided f.amily'.