3 S.C.R.

SUPREME COuRT REPoRTS 391

tenant, the entry being "Tekan and others, Gairmaurasian first through Gneshi Gair Maurasi secondhalf. The appellant is thus a tenant of the land of which he has taken lease and cannot be a landowner. keeping in view the definition of that term in the Act and in the Punjab L.and Revenue Act. The appeal therefore fails and is hereby dismissed with costs.

Appeal dismissed.

COMMISSIONER OF INCOME-TAX, BOMBAY

CITY I, BOMBAY

BAI SHIRINBAI K. KOOKA

(S. K. DAS, J. L. KAPUR, P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo, K. N. WANCHOO

and N. RAJAGOPALA AYYANGAR, JJ.)

Income-tax-Profits-Shares purchased by assessee for investment-Sales of Shares subsequently as trading activity- Oomputation of profit.

The assessee purchased shares by way of investment in 1939-40 at a cost price which was much less than their market value on April I, 1945. Her dividend income therefrom was assessed to income tax. In the financial year 1945-46 the assessee converted these shares iuto her stock-in-trade and carried on business in the shares. Per income for the assessment year 1946-47 was computed on the basis of the profits which she made by the sale of her shares as a trading activity. The assessee contended that the cost price of the shares for compu ting the profits was their market value at the beginning of the year when she started the trading activity, i.e., on April I,

1945. The Department contended that the cost Price of the shares was the actual price for which they were purchased by the assessee, no matter when she bought them and for what purpose.

Held (per Das, Kapur, Gajendragadkar, Suhba Rao, Wanchoo and Ayyangar, JJ. Sarkar, J., contra), •h•t the profits

IS62

Tekon

Gtineshi

Wonchoo J.

February 23.

Commissio1.e1 of lrr<omt-la.t, Bnmta),

Ci!J l v.

Bai Shitinhai K.

Kooia

392 SUPREME COURT REPORTS (1962] SUPP.

of the assessee from her business or trading activity must be computed on the basis that the market value of the shares as on April I, 1945, was the cost price of the shares for the business. The basis must be the ordinary con1rncrcial principle on which actual profits are computed, and normall)", the commercial profits out of a transaction of sale of an article are the differences, between what the article cost the business and what it fetcl1ed on sale, In Kikabhai Prcmclwnd v.

Oommi.jsioner o.f lnr:onitax, the Supreme Court was considering the converse case and the principles laid down in that case were (1) that there was no general principle of taxation under income-tax Jaw under which the State could assess a person on the basis of business profits that he rnhht have made but had not chosen to make, and (2) that it was unreal to separate the business from its owner.

Those prin ciplcs have no application in the preijent case \Yhich is not a case of any potential future advantage; the admitted p:>sition in the present case is that there \\as a sale of the shares in question in pursuancf". of a trading or business activity and actual profits had resulted from the sale.

The question here is ho\V such cornn1ercial profits arc to be calculated. r n a trading or c:omrnercial sense the only fair measure of assessing such trading profits is to take the 1narkct value at one end and the actu~I sale proceeds at the other. 'fhis is more in accord \-Vith reality than fiction.

Sir Kikabhai Premcltand v. (,101nmiasioner of Inc,, rnr.-tax (Central), Bom&ay, [1954; S. C.R. 219, Shorkr.y '" lVernhu

(1955) 36 T. C. 275, referred to.

Per, Sarkar J.-The asses.sec's taxable profits on the sale of the shares earlier held as investment are the difference

bet\veen the sale price and the pric.c at ,, hich she had actually bought those shares. 'fhe profits could not be compu ted on th? basis of a fictional sale Uy the asscssee to herself on 1\pril I, 19-t5. 'fhe case \vas governed by the principles laid down by the Supreme Court in Kikabhai's case. The decision of the House of Lords in Sharkey v. JVernher, , ... hich

took a contrary vic\v, was not preferable to that of the

Suprmc Court in Kikabhai 's case.

Sir Kikabhai Prenicl1and v. Commis"rionr.r of l11co111elax (Cent.ml), Bombay, JI !l54] S. C. R. 219, followed.

Sharkey v. Jl'anher, [19551 36 T.C. 275, not approved.

Cn'IJ, APPELLATE Jcms1J1c1·10N: Civil Appeal No. 13:J of I!l58.

Appeal by special leave from the judgment

and order dated March 6, 1956, of the Bombay High Court in I. T. R. No. 49 of 1955.

H. N. S11ny2l, Addition<tl Solic1:tor-General of India, K. N. Rajagopal 81Jstri, R. H. Dhebar and P.

D. Menon, for the appellant.

N. A. Palkhivala, B. K. B. Naidu and i. N.

Shroff, for the respondent.

1962. February 23.

The Judgment of Das, Kapur, Gajendragadkar, Suhbn, Rao, Wanchoo and Ayyangar • .JJ., was delivered by Das, J., f3arkar, .J. delivered a separate judgment.

S. K. DAS, J.-This is an appeal by special, leave grante:! by this Court on Seotember 17, 195().

The Commissioner of Income-tax, Bombay, City I, is the appellant before us. Tho respondent is Bai Shiiinbai K. Kooka, who will be referred to in this judgment as the assessee.

The assessee is a Parsi lady who held by way of investment a large number of shares of different companies. . These shares were purchased before the end of and after 1939-40 at a cost-price which was much less than their market value on April 1,

1945. Her dividend income was assessed to incometax for several year prior to April 1, 1945 ; but in the assessment year 1946-47, the relevant accounting year being financial year 1945-46, th" Incometa:x Officer found that the assessee had converted her shares into her stock-in-trade and carried on a trading activity, viz. a. business in shares.

Her income for the assessment year 1946-47 was therefore computed on the basis of the profits which she made by the sale of her shares as a trading activity, the profits being calculated on the difference between the ruling mar'., et price at the beginning of the account year and the sale proceeds. For the assessment year 1947,48, the relevant accounting year being the financial year 1946-4 7, it was found by the Income-tax Officer that the sale proceeds of the shares which the assessee had sold amounted to . ' . ' - ' . ' . . . . ' .

Commissioner oj Ineome-1'ax1 Bombay, City/ v.

Bai Sh; rinboi ](.

Kooka

DasJ.

Commi1Ji.tmtr of f11tom4•tax, Bomba;·,

l'i(1 l v.

Bai Shirinbai

K. Kocla

Das , J.

394 SUPREME COURT REPORTs (1962) SUPP.

R's. 5,49,487/·. The Income.tax Officer caloulated the prnfita in the following manner : 1iale proceeds Hs. 5,49,487 Cost calculaterl on the basis of the market price of the shares at the beginning of the account year l{s. 4,50,82i

Less : Forward business loss

N'et profit

Rs. 98,655 Rs. 25,344

Hs. 73,321

The assessee then appealed to tho Appellate Assis tant Commissioner who enhanced the income of the assessee by a sum of Its. 2,91,307 /- including a capital gain of Rs. !H,5!l0/·. The Appellate Assistant Commissioner proceeded on the footing that the profit earned by the assessee on the sale of the shares was the difference between the original cost price of the shares anr:l the sale proceeds.

He further held that the some of the shares which were sold in the account year I 946.4 7 were tho assessee's stock-in-trade, while some other shares were her investment shares. Then, there WaB an appeal to the Income-tax Appellate Tribunal and the princi pal point taken before the Tribunal related to tho question as to how the profits of the assessee on the sale of her share~ should ho calculated. The Judicial Member of the Tribunal accepted the view expressed by the Appellate Assistant Commissioner and hold that the original cost price of the shares must be taken in order to find out the profits which the asseesee had mado on the sale of the shares.

The Aceonntant Member agreed, however, with the view of the Income-tax Officer and held that tho market value of. the shares as on the date when

they were converted into stock-in-trade by the assessee should be taken into consideration for the purpose of ascertaining the profits made by the assessee on the sale of those shares.

On this difference between the two members of the Tribunal, the matter was referred to the President of the Tribunal.

The President agreed with the view of the Accountant Member.

The Tribunal was then moved by the appellant to state

a case to the High Court of Bombay on the question of law which arose out of the 'rribunal's order, namely, what should be the basis of computation of the profits made by the assessee by the sale of lier shares in the relevant year. The Tribunal came to the conclusion that the question as to when the assessee became a dealer ill shares or when the assessee turned her investment shares into her stock-intrade, was a question of fact, and the only question of law that arose was as to how the profit was to be computed.

Accordingly, the Tribunal framed the question of law in the following terms :

"Whether the assessee's profit on the sale of shares is th!) difference between the sale price and the cost price, or the difference between the sale price and the market price prevailing on 1-4-1945 ? " The aforesaid question of law was then referred the High Court of Bombay under s. 66(1) of the Indian Income-tax Act, 1922 (XI of 1922).

This was Income-tax Reference No. 49 of 1955.

The reference was heard by a Division Bench consisting of Chagla, C. J. and Tendolkar, J. By its judgment and order d11ted March 6, 1956, the High Court answered the question in favour of the assessee and held that the assessee's assessable proft .on the sale of shares was the difference between the sale price and the market price prevailing on April l, 1945.

The appellant having unsuccessfully moved th., High Court for a

19az

Commissioner oj

lncometax, Bombay,

Ci!JI I v.

Bai Shirinb.ii

K. Kooka

DasJ.

CommiHio1ur of lrvorru-tax, Bombay,

City I v.

Bai Shi1inbai

A. Koola

Dos J.

396 SVPREME COL'RT REPORTS [l!JG'?] SUPP.

certifieatc under s. fi6A (2) of the Income.fax Act, applied for speci1d l1ave to this Ct1urt.

Such leave was granted by this Court by an order dated September 17, l!J56. .

This appeal was he, trd in part by a Bench of three , Judges presided over by the learne1l Chief Justice, who directed that it be posted for hearin.!!

before a Bench consisting of seven .Judges, pl'csumably becausfl one of the pointR ul'g<"l befol'e the Bench was whether t.he majorit.v decision of this Court in Sir K ik1.i,/11n'. PremchaiuJ, v. Com.miMicm<>r of Income tax (Centrrzl), Bombay(') reqnir<'d rnconsideration. It mav h•' here stated thin the le:mwd .Judges of the High Court lrnd before lh<m the d1•ei"- sion in Kifob!ta.i's case (1) and they considered that decision carefully and held that the decision •Could

be distinguished, firRtly, on the ground that the problem which the High Court. had before it in the present case was the content of tax•ible profits in a commercial s .. nse out of the amount actually received by the assessce by a sale of hor shares, whereas t.ho problem in /{ifr1blv1.i case (') was of a different nature, namely, whether it was open to the dopart.ment to tax an asesser' on a fictional sale or potential pl'ofits, and, secondly, on the ground that the prinoipl0 hid down i11 Kika.11/uti's case(') had no a, pplication to a ca.e where real or actual profits, as disting1iished from fictional profits, have to he alloen.tecl or 1itt.ribut., d to the trading activity: One of the points which we have to consider in this appeal is whether, on principle, the distinction dr.-iwn by the High Court is <:OITPct or whether the rntio of Kikabha1'.'s wsc (')should gov. crn the present case,

As we have slated earlier, the problem is how shoul<l the profit maclc hy the asscssee by a sale of her shares as 11 trading activity be computed, it being not in cl isputc t.hnt there was in thiR case a real

(I) [195i] S.C.R. 219.

sale resulting in actual profits. The High Court first emphasised the point, which has not been con troverted before us, that in order to arrive at real profits one must consider the accounts of the busi ness on commercial principles and construe profits in their nmmal and natural sense, a sense which no commercial man will misunderstand.

It then pointed out that what the shares cost originally to the assessee at a time when she had no business or trading activity, could not, in a commercial sense, be said to be the cost of the shares to the business which started on April 1, 1945, the original cost was really a matter of historical record and it had no relevance in the determination or ascertainment of profits which the busir.ess made. Obviously, the whole of the sale proceeds or receipts could not be trJated as profits and made liable to tax, for that would make no sense a portion only of the reueipts can be treated as profit but what portion?

Normally, the commercial profits out of the transaction of a sale of an article is the difference between what the 'lrticle costs the b11siness and what it fetches on sale. The High Court pointed out that when the assessee purchased the shares at a lesser price, that is what they cost her, and not the business; but so far as the business was concerned, the shares cost the business nothing more or less than their market value on April I, 1945.

The learned Additional Solicitor General who has appeared on behalf' of the appellant in this case has contested the correctness of the above line of approach. He has submitted, firstly, that the distinction drawn by the High Court between Kikabhai's case (') and the present case is not warranted on principle: secondly, he has contended that the ratio in Kikabhai's case(') should apply in the present case also; and thirdly, he has contended that in holding that the price of the shares should be the market price as on April I, 1945, when the shares were converted into stock-in-trade the High Court

(I) [19.>4] S.C.R. 219.

196Z

Commisiontr of

Income-tax, Bombay, City I

Bai Shirinbai

K. Kooka

DasJ.

Colllmissiorur o I

T ncome-tax,

Bombay~ City I v.

Bai Shirinbai

K. Kooka

DasJ.

398 SUPREME COURT :i; tEPORTfl [1962] SUPP.

in effect held by a legal fiction that the assessee had realised the potential profits 011 the said shares on that date which she had not actually done and henue the very basis of the judgment of the High Court is vitiated by the assumption of a fiction.

The learned Additional Solicitor-General has also submitted that there was no warrant for the High Court to introduce a legal fiction that there was a notional sale of the shares on April 1, 1945, by the assessee and that the gains which accrued to. the ass.essee on th1tt sale were capital gains; this notional sale it is submitted, violates the basio principle th.at a man cannot sell to himself nor can he make a loss or profit out of transactions with himself.

Wii propose now to examine these arguments in some detail. The question raised is a short question bu_t a difficult one. In orde.r to examine the arguments urged on bflhalf of thiappellant, it is necessa, ry first to refer w the decision of this Court in Kikabhai's case (1). +'he facts of that case were these.

The assessee there was.a dealer in ail ver and shar:es and he maintained his accounts .according to the mercantile system and valued his stock at cost price both in tho beginning and at the end of. the year. Duriog the relevant accoi, mting year he withdrew some silver bars and shares from the business and settleJ them on certain trusts in wb ich he was the managing trustee an!l in his books of account he credited the business with the cost price of the silver bars and shares so withdrawn.

The income-tax authorities assessed him to tax , on the basis of the d.ifference between the cost priue of the silver bars and shares and their market value at the date of their withdrawal from the. business.

The High 'Court of Bombay upheld the actio1i of the income tax authorities. This Court, however, by a majority decision came to the conclusion that the asse$see 'fas entitled to value the silver ba.rs

\ll. ~!951) S. c, R. 219,

' .

and shares withdrawn at cost price and was not bound to credit the business with their market value at the close of the year for a80ertaining $.e assessable profits for the year. Bhagwati, iJ., who expressed the dissentient view said that so far as the business was concerned it made no difference whether the stock-in-trade was realised or with drawn from the business and the business was enti tied to be credited with the market value of the assets withdrawn as at the date of the withdrawal, whatever be the method employed by the assessee for the valun.tion of its stock-in-trade on hand at the close of the year.

The majority view was expressed by Bose, J., who dealt with the two contentions of the learned Attorney General who appeared for the Revenue (respondent) in that case. Tho Attorney General's first contention was that as the silver bars and shares were brought into the business, any withdrawal of them from the business must be dealt with along ordinary and well-known busi ness lines, namely, that if a person withdraws an asset from a business he must account for it to the business at the market rate prevailing at the date of the withdrawal.

This contention was repelled by the majority on the ground that the transaction of withdrawal was not a business transaction and by the act of withdrawal the business made no pro fit or gain nor did it sustain a loss and the assess

ee derived no income from it. It was pointed out that the assessee, might have stored up a future advantage for himself but as the transactions of withdrawal were not business transactions anrl as the assessee derived no immediate pecuniary gain, the State could not tax them; for under the Incometax Act the State has IlQ pewer to tax a potential future advantage, all it can tax is income, profits and gains made in the relevant accounting year. In other words, the ratio of tha decision as respects tho first contention of the learned Attorney General

ws that there was no general principle of t11-xatioq

Commissior oj

IncOme .. tax.

Bombay, City f

•• Bai Shirinhai

K. Kooka

Das J.

<Ammis!ioner of

lntoml-1~, Bombay, f:1'J I v.

Bai Sh;1inboi

K. Kooka

Das J.

-too st:i'REME cou1n ItEPoRi's [i!J62J sui>r.

under income-tax law under which the State could ai; scsa a peroon on the basis of business profits that hu might have made tm ha.d not chosen to mJ.ke.

It was also pointed out that it was unreal and artificial to separate the business from its owner and treat them as if they weie separate entities trading with each other and then by means of a fictional sale introduce a fictional profit which in truth and in fact was non-existent. It was pointed out that a man could not trade with himself nor could he make profit or loss out of transactions with himself.

The second contention of the learned Attornl:\' General was that if tho act of withdrawal was at a time when the market price was higher than the co;; t price then tho State was deprived of a potential profit. This contention was dismissed as unsound because, for income-tax purposes each year is a self-contained accounting period and one must take into consideration income, profits and gains made in that year and tbu assessing autho1 ity wa.s not concerned with p.otential pr-ifits which might be made in another year.

From what h1Ls been stated above it would at once app•,, ar that Kikablwi's case (')was the converse of the present case.

In K.ikabhai's wse ( 1) a. part of the stoc:kin-trade was withdrawn from business, there was no sale nor any 1Lctual • profit.

The ratio of the decision was simply this: under the Income-tax Act tho State bas no power to tax a potential future advantage and an it can tax is income; profits and gaius made in tho relevant accounting year. [n the case under our consideration tho admitted position is that there ba8 Leen a sale of the shares in pursuance of a trading or business activity and actual profits have resulted from the salu. The question in the present case is not whether the State has a power to tax potential future advantage, but thu question is how should actual profits

I()

[1954] S, C.R. 2(9.

3 S.C.R.

SUPHEME COURT REPORTS 401

be computed when admittedly there has been a sale in the business sense and actual profits have resulted therefrom. We agree with the High Court

that in this respect there is a vital difference between the problem presented by Kikabhai's case (1) and the problem in the present case. We further agree with the view expressed by the High Court that the ratio in Kikabhai's case (1) need not necessarily be extended to the very different problem presented in the present case, not only because the facts are different, but because there is an appieciaable difference in the principle.

The difference lies in this : in one case there is no question of any business sale or actual profits and in the other admittedly there are profits liable to tax, but the question is how the profits should be computed.

We must, therefore, overrule the first two arguments of the learned Additional Solicitor General that the distinction drawn by the High Court between Kikabhai's case(') and the present case is not warranted on principle and that the ratio of the decision in K ilcabhai's case (1) must necessarily apply to the present case also.

While we are on this question we must refer to a decision of the House of Lords in Sharkey v.

Wernher (')to which our attention has been drawn.

Briefly put, the facts of that case were these : the wife of the assessee there carried on a stud farm, the profits of which were agreed to be chargeable to income-tax under case 1 of Schedule D.

She also carried on the activities of horse racing and training, which were agreed not to constitute trading. Five horses were transferred from the stud farm to the racing stables.

The cost of breeding these horses was debited to the stud farm accounts.

On the question of the amount to be 'credited as a receipt the assessee contended before the Special Commissioners that the proper figure to be brought in respect !Jf the transferred horses was the cost of

(!) [1954] S.C.R. 219. (2)

(1955) 36 T.C. 275.

J96Z

Commi•sioner of l ncome-tax, Bombay, Ciry I

•• Bai Shirin6ai

K. Kooka

Da1J.

196%

Commiasiorur 01

lncomt--tn.'1: 0 Bombay, City I v.

Bai Shirinbai

/\, Kooka

DtJJ J.

402 SUPREME coli.HT HEFORTfS [i!!1>2J SUPP.

breeding. The Crown contended that the market value of the animalH, which was considerably higher, was the proper figure. The Commissioners docided in favour ufthc :is;; essee and the Crown demanded a case.

The case was first heard by Vaisey, J., who follow

ing the decision in Watson liros. v. llornb!f (1), held that the market value of the five horHes t.ransfPrTed from the stud farm wa.s the proper figure that should be credited in the accounts. VaiSl'\'. J. hai; ed his decision on the ground that the oase' was indistinguishable in principle from an earlier decision,

namely, tht ofMncna11htPn, .T.. in Watson Bros. v.

Hornby ('). Wo mav here Rlato that in w .. tson Bros. v. llornliy (I) the :iFRf'SSt'e <'anied on the bu; iness of poultry brnetlers and dealers. In addition tu keeping birds on their farm for laying purposes, they had a hatchery which produced chicks primarily for sale as 'day-old chicks'. Some of theso chicks were transferred to brooder houses and bocame part of the stock on the farm.

The asscSBees were assessed to income-tax under schedule Din respect of the profits of tho hatchery part of tlicir business and under Schedule H in respect of the profits of the farm.

Th(' question tl:at arose in that case was whother tho day-old chicks transferred to the farm should be eretlited as stock at the averagtc price at which they were sold and could have been bought in tho open market, namely, 4d. per chick, and that the difference between that price and the admitted cost of production of each saleable day-old chick, 7d., was an allowable loss.

The Crown contended that t.he hatchery and the farm were two activities of the Harne person who could not make a loss by tmnsferring from 0110 department to the other and therefore the chicks should he credited to the hatchery account at production cost. It was held by Macnaghten, J ., that in the notional :; air bet- \Veen the hatchery and the farm, which should be treated a8 separate entities, the price to be credited was the "reasonable price" laid d.own by s. 8 of tho

(I) (1942) 2• T.C. 506.

- -',

Sale of Goods Act, 1893, and that on t.he admitted evidence this reasonable price must be the market price of 4d. per chick. This was the decision which Vaisey, J. followed. From the decision of Vaisey, J. there was an appeal to the Court of Appeal.

The Court of Appeal referred to 1<wo of its own decisions, namely, Laycock v.· Free111an, Hardy & Wills (I) and Briton Ferry St, eel Co, Ltd. v. Barry (2 ) and held that the principle stated and the reasoning underlying the judgment of Sir Wilfrid Greene, M.R. in the Briton Ferry Steel Co. Ltd. v. Barry (') were inconsistent with the conclusion in Watson Bros. v. Hornby('). The Court of Appeal accordingly allowed the appeal. Sir Raymond Evershed, M.R., (as he then was) said, however, that if the matter were res integra, he would have been inclined to hold that for the purpose of the stud farm account if one were seeking to put a value on the animals transferred the .value must be that which the animals were in fact worth. He expressed the view, ho11- ever. that the matter was not res integra and as a result of the authorities referred to above which expounded the g@neral principle to be applied, he allowed the appeal. The case was then taken to the House of Lords. The House of Lords decided in favour of the Crown, Lord Oaksey dissenting.

Viscount Simonds thus expressed his views in his speech at page 299 of the report :

"B.ut it appears to me that when it has been admitted or determined that an article forms part of the stock-in-trade of the trader, and that upon his parting with it so that it no longer forms part of his stock-in-trade some sum must appear in his trading account as having been received in respect of it, the only logical way to treat it is to regard it as having been disposed of by way of trade. If so, I see no reason for ascribing to it any

(I) 22 T, C. 288.

(2) 23 T.C. 414.

(3) (1942) 24 T.C. 506.

Commissioner of

lncome-T ax, Bombqy, Ciry I

•• Bai Bhirinbai

K. Kooka

DasJ.

Commis•Umtr of

1 1:comcax, Bombay, Ci'.J I

v, lJoi Skirinboi

K. h.ooka

DuJ,

4-04 SUPRE:'lfE COURT REPORTS [I!l62] StJPP .

other sum than that which he would normally have rcceiv•'d for it in the due course of trade, that is to say, the market value. As I have already indicated, \.here seems to me to L<i no jm<tification for the only idternativc that has

been suggebted, namt•ly, the cost of production. The unreality of this alternative would

be plain to the taxpayer. If, as well might happen, a very large service fee had been paid so that the cost of production was high and the market value did not equal it." Lord Radcliffe pointed out that when a horse was transfernd from the otud farm to the owner's personal account, there W[l.S a disposition of trading stock,

though the dispositi, m might not Le by way of trade. He then referred to three methods of record ing the result of the disposition in the stud farm trading accounts. One of them was that there might be no entry of a receipt at all and Lord Radcliffe pointed out that this method would give the selfsupplier e.n unfair tax advantage.

The sccor1d method would be to enter the cost price; this again would be fictional, because, no sale in the legal sen , e had taken place, nor had there been any actual receipt. The third method was to enter as a receipt a figure equivalent to the current realisable value of the stock item transferred. Lord Radcliffe gave two grounds in favour of the third method.

The first ground was that it gave a fairer measure of assessable trading profit as between one taxpayer and another, for it eliminated variations which were due to no other cause than any one taxpayer's 1lecisi()n as to what proportion of his total product he would supply to himself.

The second ground was that it was better economics to credit tho trading owner with current realisable value of any stock which he had chosen to dispose of without commercial disposal than to credit him with an amount equivalent to the accumulated expen808 in respect of that stock.

It is worthy of note that the faots in Sharkey

v. Wernher (1) were similar to the facts of Kikabhai.'s case (2).

In both those cases what had happened was that a part of the stock-in-trade was withdrawn and the question was at what figure in the trading accounts the withdrawal should be accounted for.

In Kikabhai's case (2) this Court. came to the conc]u. sion that the withdrawal should be at the cost price.

In Sharkey v. Wernher (1) the house of Lords held that the proper figure shL, nld be the market value which g,1ve a fairer measuro of assessable trading profit. It is significant that the House of Lords reached that conclusion not witho .1t dissent. If the facts of the case which we are now considering were similar t:i the facts of Kikabhai's c.r.se (2), it might have been necessary for us to re-examine the ratio of the decision. It is necessary to state here, however, that the decision of the House of Lords in Sharkey v. Wernher (') is an authority which is binding on us. It is only an authority of persuasive value entitled to great respect.

In an earlier part of this judgment we have taken pains to point out the distinction between f(ikabhai's case (2) and the case under our consideration. In view of that distinction, we do uot think that it is really necessary int he present case to re-examine the ratio of the decision in Kikabhai's case (2 ). Whftt then is the basis for computing the actual profits in the present case ? We think that the basis mu't be, as the High Court has put it, the ordinary commercial principles on which actual profits are com-

. puted. We think that the ar, proach of the High

Court was correct and norm illy the commercial profits out of the transaction 1, f sale of an article must be the difference between what the article cost the business and what it fetched on sale.

So far as the business or tr:iding activity was coneerned, the market value of the shares as on April l,

(I) [1955] 36 T.C. 275.

(2) [1954] S.C.R. 2/9,

Cr•mmirsioner of

Income Tax, Bombay, City I v.

Bai Shirin.bai

K. Kooka

Das J,

196t

Cnnmissitmtr 1}

I 11&111111-T ax, Bombct)', Ci{1 I

Bai Shiriniai

Ir. Koo.la

DuJ.

406 SUPREME COUR'l' REPORTS (1962] SUPP.

1945; was IVhat it costs the business. We do not think that there is any question of a notional sale here. The High Court did not create any legal fiction of a sale when it took the market value as on April I, 1945 as tho proper fignro for determining the actual profits m11.de by the assessce.

That the assessec later sold the shares in pursuance o( a trading activity was not in dispuu•; that sale was an actual sale and not a notional sale ; that actual sale resulted in some profits. The problem is how should those profits be computed ? To adopt the language of Lord Radcliffo, tlrn only fair measure of assessing trading profits in such circumstances is to take the market: value at one <'nd and the actual sale proceeds at the other, the difference between the two heing the profit or loss as the case may be.

Tn a traoing or commercial sense this seems to us to accord more with realitv than with fiction. • For these rt>asons we hold that the answer given by the High Court to the question of law referred to It was correct. The appeal accordingly fails and is dismissed with costs.

SARKAR, J.-Two qu<'stions arise in this Appeal.

The first is whethPr the judgment of the Courc below is against the decision of this Court in Sir Kikabhai Premdu111d v. Commissioner of Income-tax.(') The second is, if so, does the decision in

Kikabhai's ca.se(l) require reconsideration? It appears that in Sharkey v.

Wernher(') where the question was the same as in Kikahhai's case(') and which was

decided a little lator than that case, the House of Lords took a view contrarv to 'that tiikcn in Kikabhai's case. It was on the hasis of the reasoning on which Sharkei/.~ case (') was founded that the ]llarncd advocate for the respondent contended that Kikabhai's case requires reconsideration.

The assesaee in the present casu is a lady of

(l) [1954] s.c.R. 219; [1957] 23 [, T. R. 506. (:!) [1956] A.C. 58; 361:.C 2n.

some means. For many year past she had been holding various shares Ly way of investment on the dividends of which she was being charged to income-tax. In assessing the tax for the assess mentyear 1946-47, the accounting period of which was the financial year 1945-46, it was found that the assessee had been carrying on businesa with some of the said shares sincu April, 1945. It is not in dispute that in the accounting year 1 \!46-47 also, which is the year with which we are concerned, she carried on the business with various such shares.

A question arose in connection with the assessment of tax for 1946-4 7 as to how the profits of her trading activities were to be ascertained. 'rhe trade was one of purchase and sale of shares.

It is common ground that the profits of such a trade are the difference between what the thing sold fetched and what it cost to arquire.

The question arose because difficulty was felt in fixing the cost of acq 11isition. In regard to shares acquired by the assessee for her trade afber sue started it, the position was not in controversy, for the cost in respect of such shares was admittedly what he bought them for. The controversy concerned the shares with which she traded in this year and which, prior to April 1, 1945, she had been holding ~-" investment, having acquired them, it may be, quite ,1 few years ago. The assessee contended t h<1t the cost of acquisition of this latter variety of Hharcs-and with these alone we are concerned in this appeal, wa.s their market value on the date when she started her business and thereby converted them from investment into stock-m-trado of her bmiuess.

The State contended that the cost of acquisition of these shares would be what she bought them for, no matter when she bought them and for wh,1t purpose. The Tribunal aecepted by a majority the contention of the assessee. At the irn; tance of the State the Tribunal then refoned the followin(;

C ommis.rioner of

lncnrne~ Tax, Bnm.bay,

City I v.

B"i Shirinbai .

K. Kooka

Sarkar J.

1!J62 •

Commissioner 11/ /~.tar, Bomb~,

C; ty I

Bai Shirinhai

K Kook

Sarkar J.

408 SUPREME COURT REPORTS [1962) SUPP.

question to t.he High Court at Bombay under s.66( I) of the Income-tax Act:

"Whether the asses.eo's assessable profits on th" sale of shares is the difference between the B<Lle price and the cost price, or the difference between the side price and the market price prevailing on 1-4-1915"

The High Court held that the assessable profits were the difference between the salo prico and the market value of the shares prevr.ilin" on April I, 1945. The State has filed this appa>tligainst the decision of the High Court. ·

The Stato contends that tho High Court's decision is against the judgment oft.his Court in Kikabhai's case.( 1). Thn.t is the first que;; tion which I propose to diRcuss.

The assessee in Kikabhai's case was a dealer in shares ani! silver. Tho method employed h.1 him in keeping his :wcounts was to ent-Or the cost price of his stock at th" lwgi1111ing of the year, to credit the sale proceeclo of the sto"k

sold during the year and value tho unHnld tock a.t tho ond of the y1?ar at cost pricl\ these latter b1•ing carried forward as the op., ning entries of tho next yea1's 'ccounts. It appe:mid that the asSl'SSt?e had withdr:iwn somo 8ilvor aml shares from his business and settled thC.Jl• upon ""rt11in trusts.

In the accounts he ont.ered the silver and Hh<1res so withdrawn at tlrnir coot price. The St;; ite contP11rh•cl that thes" should hwc [pen enter1_, rl in tho •1ccount8 at their market value on the datt? th'-'Y wen• withdrawn from tho business. This Court found this contention una"ccpt:i.blc am! held that tlwrntry sh1rnld

be of thn cost price irncl not of th" mark"t vaJ, ie on that date.

It h; i.d been contended on Lehalf of the State that "A~ this is a business, aay witlJ<lmwal of the assct8 is 11 business m; i.tter :rnd thr, only feasible way of regardiug it in a business light is to enter

(I) (195'!) $.C.R. 219; [1957] 231.T .R. 506,

the market price at the date of the withdrawal," and that "if a person withdraws an asset from a business, he must account for it to the business at the market rate prevailing at the date of the withdrawal." In dealing with these contentions this Court observed, " It is impossible to get awayfrom the fact that the business is owned and run by the assessee himself. In such circumstances we are of opinion that it is unreal and artificial to separate the business from its owner and treat them as if they were separate entities trading with each other and then by means of a fictional sale introduce a ficational profit which in truth and in fact is nonexistent. Cut away the fictions and you reach the position that the man is sup1iosed to be selling to himself and thereby making a profit out of himself which on the fact of it is not ouly absurd but against all canons of mercantile and income-tax law."

'l'he decision in Kikabhai's case (1) was however by a majority, Bhagwati J. having taken a contrary view. For the purpose of the present question I will have to confine myself to the judgment or the majority.

It seems to me that the argument of the respondent in the present case is the same as that of the Attorney-General in Kikabhai's case. She says that she is entitled to debit the accounts of her buAiness with the market value of the shares as on the date of their conversion into stock-in-trade, that is, April 1, ] 945.

She can no doubt do that if she had acquired them on that date, from the market.

But this she did not do. So she is compelled to rely on a fictional nnrchase by her from herself at the market rate of that date to sustain her contention. Kikabhai's case definitely held that no one can be supposed to be trading with himself for the purpoRe of ascertaining taxable profits.

A fiction therefore that one has done so is not permissible.

To hold that the assessee is entitled to enter in the

(!) [1954] $.C.R. 219; [1957] 23 J.T.R. 5~.

Commissioner of Income-tax, Bombay,

City 1 v.

Bai Shirinbai

K, Kooka

Sarkar J.

196Z

Commisair'111'r of

lrieome-ta.:~.

BamboJ, City 1

•• Bai Shitinbai

K. Kooka

Sarkar J.

!10 S1JPRE:\IE COURT REPORTS [1962] SUPP.

acounts of her busi1wss, the market va.lue of the shar<'R on April I, 194:l. wou Ir! be to go directly against the decision in Kikabhai's eaRe and the ratio on which it waR based .

It was Raid that. Kikabhai's case dealt with a fictional sale :mrl potential or not.ional profits whnreas in the µreRent case then• was actual trading in the shares and thn problem h"re is to ascertain the profits of that tracle.

I am 11ot sure that tho diRtinction so sought to be made iH really possihll'.

Both the cases rle11.lt with the asscssmnt of the

profit.~ of an cut.ire trading activity of a pcrRop.

There wore real profits in both ca"'R am! the que,; tion in each was, how to a.~'1css them.

The difficulty in one case ii.rose beca1rne a part.ion Jar stock acquired for the trade ha<I been withdrawn from it and in the other, becau•e a particu la• stok not acquired for the trade had bern us<'d for its purposes.

ThPquestion in each case was, what value was to be pnt on thn ;; tock concernorl for assessing the profit,~ of the trade as a whole.

It would be incorrect to split up the entire tmdo and to treat the <le; i.I in en.ch stock srparat.ely n.nrl I do not think /(ifobhai'o wse (1) die! so.

So consi<lered tho Stat.o would have no ha.sis for Rny claim in Kikabhai's case for then there would hve been no business at all to t1ix.

It was th..rcfon• that in Kikahh<ii's cn.se the State contended that tho stock

had hl'Pn "brought into the business" :md on that

hais onlv could .. it :tdvance hy argument-.

It was t-his argriment advanc('d on. tht hMis that. this Court cnnsidercd and rejected, The Conrt did not

consider the profits of a pn.rticnlar item of trndc by itself.

So th11 Court did not consider 11olional profits in the senn in<licated by the distinction now sought to he made l>t'twc€'n .the t11·0 cases.

The present case is the sctme, for here n.lso the quc8tion is what an: tho profits of the lt"i'eSRPt>'B entire trade, that is, how is the cost price to he calculated for

(I) Ll954 \ S.C.R. 219; [1957] 23 I.T.R. 506.

tht purpose ? Here al-io, if the sale of the investment shares bv themselves was concerned there wollld in all probability have been no trading and no question of assessing the profits of such trading

would have arisen. Therefore b1th cases dealt with the asso;; smcn_t of actual rrofits ; none was concerned with assessment of notional profits.

But suppose the two cases are different as suggested, that does not seem to me to make any distinction. In Kikabhai's case ( ') it had been held that the withdrawal was not trading because a man could not trad" with himself. In the present case f, he assessee did no doubt trade by selling her shares to a stranger. There was no fiction in this trade.

But when the assessee contends that in ascertaining the profits of a trading transaction actually done by her she should be permitted to value the stock involved in that trading activity which she had not acquired in the course of her trade at the market value of the date of the commencement of that trade,

She really says that she sh 1uld be allowed to proceed on the basis of a fiction that she had purchased from herself on that date for she had not then purchased it at all. She would be asking us to hold that which Kikabhai's case refused to hold.

I am unable to agree that in the case of a real sale Kikabhai's case does. not forbid a dichotomy between the owner of a business and thebusiness itself for ascertaining the profits of that sale as the assessee .wants us to do.

It was also said that to apply the principle that one cannot trade with himself to the present case would be overlooking the actual fact that -money's worth was brought into the business. I am

unable to appreciate this contention. There is no overlooking of the money's worth brought in, for

(I) [1954] S. C.R. 219; (1957] 23 I. T. R. 506. '\

196B

Commissioner of

lncome--la1t, Bombay, City I v.

Bai Shirinbai

K. Kooka

Commi••ion1r of

Income a:r; Bambay. City l ..

Roi Shirinbai

K. Kooka

Sari= J

412 SUPREME COURT ItEPORTS [1962] SUPP.

that money's \vorth is value at the cost at which the stoek concerned was actually acquired from the market, may be as an investment and not as a stock in trade.

I am un<1ble to appreciate h<Jw it c11, n ho said that any money's worth would be overlookcdwhioh, I will assume. no businessm Ln will do in oalnulating hid profits-if tho shares are not valued at the market valu•J of the day on which they are brought into the trade but are valued at thc> price at which actually they had be"n previously acquired by the assessee. The real question is what were the sharos' worth in monoy for calcult1ting the profits. The contention of the respondent assumes that the money's worth must be calcuhted as on the date of the commencement of tho trade :ind hence really begs the question.

Chagla, C.J. who delivered tho judgment of the High Court, said that he did not undorstand Kikabhai's m8e (')to mean that evon for the purpoRe of accountancy or for the purpose of ascertaining commercial profits it is not open to the court to value the shares at the market price of the date on which they wPre brought into the buHiness.

I am unable to agree.

Accountancy, I suppose, is not based on fiction but deals with realities.

We a•c concerned with accountancy only for the purpo8e of ascertaining commercial prolit8, and it was only for

that purpose that this Court held that you cannot enter in your aeeounts the market value of goodA on the fiotional basi8 that yon sold them to yourself.

Chagla. C .. J.. thought that Kikabhai's cas" wa~ not dealing with commercial profits.

I think that si11ee that case wa8 considering profit" for incometax purposes it was not dealing with anything else.

I am also unable to 11grec with the view of Chagla, C.J., that the ratio in tho decision of Kikahhai's case has no application to the present caAe.

The rntio was that for the purpose of ascertaining tax1ible

profits it is not possible to conceive of one trading

(I) [1954] S. C.R. 219. [1937] 231. T. R. 506,

3 s.c.R. suPREME coURT REPORTS 413

with himself and it would apply here, for here also taxable profits are being ascertained.

Chagla, C.J. observed that what has to be ascertained is what an article costs the business and not the owner, but in Kilcabhai's case (') it was expressly said that when the business is owned by the assessee himself it is unreal to separate the business from its owner and treat them as if they were different entities trading with each other.

Chagla, C.J. also said that for Income-tax purposes profits of a busine.is have to be und_erstood in a wav that a man of business would understand it. I a~ not aware that a commercial man must compute profits on the basis of a fiction that he bas bought from himself and cannot compute his profits by deducting from the sale proceeds the price for which he had actually acquired the goods.

Kikabhai's case said that you cannot assess taxable profits on the basis of a fictional sale. If you cannot do that, neither do I think can you assess such profits on the basis of a fictional purchase in the market. And that is what the assessee wants us to do.' I am for myself entirely nnable to make any distinction between Kikabhai's case and

thfl present case .

. I have now to refer to Sharlcey's case (') and examine whether on the reasoning on which it was based it is necessary to reconsider Kikabhai's case.

That is the second question which arises in this case.

I do not find the reasoning of that case so strong as to lead me to the opinion that the decision in Kikabhai's case was wrong. I first note that one of the learned Judges Lord Oaksey, took the same view as was taken by this Court in Kikabbai's case.

In dealing with Sharkey's case I will be referring to the judgment of the majority. (I) [195•] s.c.R. 219, [1957] 23 LT.R. 506.

(2) (1956] A.C. 58 36; T.C. 275.

Commissiune, of

Incom~.taJC, Bomb2, Y, City I

Bai Bhiriribai

K. Kooka

Sarkar J.

C-Orrmiissiorur of

Income-tax, Bomiay, Cily I v.

Bai Shirinbai

K. Kooka

Sarkar .J.

4i4 SUPREME COURT REPORTS (1962) SUPi>.

:N"ow, Sharkf'-y's r:ase (') also dealt with tho withdrawal of assots from a taxable business. There a lady owned two enterprises, one a stud farm the incorne of which was liable to tax and another a raeing establishment, which was recreational and therefore not liable to tax. The lady transfcrT('d some horses from the stud farm to the racing establishment. In assessing the incomo of the stud farm a question aroso as to wha.t valuP should be put in its accounts for the horses transferred to the racing establishment. It will be noticed that by the transfer to the racing establishment of which she was the owner, the lady had only withdrawn the horses from her taxal.ile undertaking. The problem there was therefore just the same as in K ikabhai's Case(').

It was he Id by t.he House of Lords that the valuo to lie put on the horses withdrawn frrm th" stud form was their market value at the date of the transfer and not the cost incurred on them for breeding and otherwise till the transfer. The House of Lords observed that in Incomc-tax Law a dichotomy between the owner of a busiIJCSS and the husiness is possible and presum:ibly therefore trailing between the two could be conceived for t:ix purposes in certain cases aud rl'ferred to some English authorities in support of this view. [ will assume that such a dichotomy is possibln in some cases but the question is whether it is possible in a case like Sharkey's case. On that question I <lo not find the House of Lords giving any special reason to make that dichotomy.

I also note that the House of Lords <lid not dispute that as a gentffal rule the dichotomy cannot

be made.

Apart from the genera I observation mentioned above the House of Lords based its decision on two grounds. What the House of Lords thought strongly supportod its view first that since it was eonee- <ied before thorn that somo entry he.cl to be made (ll [1956] A.G. 5B; 36 T .C. 275.

(2 [195+) S.G.R. 219; [1957) 23 I. T.R. 506•

in respect of the horses withdrawn, and that whether the entry was of the cost incurred for breeding the horses transferred or of their market value on the date of the transfer, the entry would ' in either case be fictional for they were not in fact transferred at any of those prices and therefore it was more real to enter the market value. Now, as . Lord Radcliffe himself noted, the entry of the cost price would really be cancelling the entry of the cost in breeding the horses which had been made in the accounts of the farms.

He however found no explanation why cancellation should take place. I think it can be legitimately said that there is an explanatibn and as was said in Kikabhai's case, that is that the cancellation had to take place because assets were withdrawn from the trade, unless entries were made cancelling the cost of items of stock brought into the trade when they were taken out of the trade, the accounts would not give the real picture of the profits of the actual trade.

A second reason which appears only in the judgment of Lord Radcliffe is that if the market value of the date of withdrawal is not entered, there will be an inequitable distribution of the burden of tax. 1 This is not very clear to me.

Learned advocate for the assessee said that Lord Radcliffe was contemplating the case of two traders who started their business on the same day one of whom bought his stock in trade from the market on that date, of

course at the market value, and the other started his business by converting what he was earlier holding for his personal purpose, into stock-in-trade. It was said that unless the latter was permitted to value his stock in trade at the market rate on the date of conversion, he would be subjected to a tax different in amount from that of the tax on the former and this would result in inequitable distribution of the burden of taxtion. Again I am not convinced that this reasoning is conclusive. Take the case of

Commissioner of

Jn.come tax, Bombay, Ci{)' j

Bai ShirinbfJi

K. Kooka

Sarkar J •

Commi•Jiontr of

lncom4'4x, Bomb41, CiJy I

Boi Shir;11bai

K. Kool<a

Sarkar J.

4i6 Sl'PREME COURT REPORTs [1962] SUPP.

two traders. One by his shrewd business m<llhoc! or by friendly contaots. or may he by moans not \'ery creditable may on the same day acquire goods necei; sary for hi8 trade at a much cheaper rate than the ot.ll!'r.

The profit;; of the two would then he different.

I do not imagine th11t any incometax law would find this objectionable.

Furthermore, I am not sure that this anxiety for au oquitable distrihtuion of the burden of tax justifies departure from a cardinal rule which is accepted in many cases in England also, that a man cannot be said to trade with himself so as to make taxable profits.

Lord Raclcliffc n•ali"ed tho difficulty of tho pr11hlem which .iie had to solve and said so.

I do not. think I will he wrong in saying that re put his decision on the ground of tho best practical solution of that difficulty. Tho majority judgment in Sharkey's case cloes not lead me to the conclusion that our decision in /( ikabhai case ('} was wrong. I respectfully prefer the view taken in Kikahhai's c-1se and by Lord Oaksey in Sharkr y'~ case('). Bhagwati, J. in his minority judgment in Kikabhai'" case hased himself on the arguments of the Attorney General.

It is not necessary to specificallv deal with his views for th('f/ have been dealt with in that caHc and wit.h what have been said there I am in completo agreement.

Before leaving Sharkcy's ca.se it would he of some interest to point out th:it Lord Simonds did not think that any distinction was possible between the case that he had before him a.nd a case like t.he ono now before us for ho said: "And so al8o, as I have more tha.n once pointed out in this case, it is conceded by the ta.x-payer that 8ome figure must appear in the stud farm accounts as rPcci pt in respect of the transforrcd horses, though Lady Zia in her capacity as transferee did not carry on a taxable activity. In the samo way, it would, I suppcsc, bo claimed that, if Lady Zia were to transfer or retrans fer a horse from her racing establishment to her

(I) [1954) s.c.R. 219.

(2) [1956] A.C. 58; 36 T.C. 275.

stucJ. farm some figure would have to appear in the stud farm accounts in respect of tha.t horse though it cost her nothing to make the transfer: If it were not so and she subsequently sold the transferred horse and the proceeds of sale were treated as receipts of the stud farm, she could justly complain that she had been charged with a fictitious

profit."

In the course of arguments a case was sugges ted of a man who had inherited or received by way of gift, a certain commodity with which after a lapse of some time he started a trade. It was said that it would be impossible 'in such a case to say that the cost of acquisition of his stock-in-trade was nil and the entire sale proceeds received by him in respect of that thing in his trade were his profits. Now, it seems to me that even if it were so, it would not follow that his stock-in-trade had to be valued at the date on which he started his trade with that.

So to hold would be against Kikabhai's case('). That

!; eing so, this illustration would only beg the question and not prove that Kikabhai's case is wrong. I think a businessman would in such a case enter into his •tcco1mts as the price for which he acquired his stockin-trade its value in the market on the date on which he received it free.

That would not involve going 11gainst Kikabhai's oase, for it would not be based

on a fictional trading by a man with himself. If you cannot distinguish a business from its proprietor, then the cost of a thing for the purpose of the business would be its value at the time the proprietor of the business acquired it. Such value from a businessman's point of view would in my opinion be the value for which he acquired it when he did

p, o for value, or its market value on the date of acquisition, when he paid no value for it.

I would therefore allow this appeal and answer the question framed by the Tribunal by saying

(I) (1954] S.C.R. 219 ,•

Com, nissionr of

Income-lax, Bornb<Jy City I v.

Bai ·.S hirinbtti

K. Kooka

Sa1kar J,

CommiJsioner ef

Jncem,•lax Bomb'!)' Ci17 l v.

B•i S; irU.."i

K. 1'111:•

Satf.ar .1.

' 418

SUPREME COURT REPORTS (1962] SUPP.

that the a;; sessee's Taxable profits on the sale of the shares earlier held as investment are the difference bet\rncn the sale price and the cost price, that is, the price at which she ha.<l actually bought those shares.

BY COl7RT : In accordance with the opinion of the majority, this appeal is dismiBSed with costs.

Appeal dismi8sed. --

S. S. MUNNA LAL

Ft6t11t1Ty 2.1. v.

S. S. RAJKUMAR AND OTHERS (S. K. DAS, M. HmAYATULI, AH a.nd J.C. S1uH, JJ.)

Hindu Lau.~.Jai11s-Adoption-1Vidow, if can odopt without express authority of husband-l'rrliminary decree. for partition dr:clarinu uidotti's sharr-JJ'hrther share ''possr.ssed" by widow--

Death of ui1lou,•-/f shrzrr rpt;('.r/s to es/11.l"-llindu ,'-; ucces.riion Act, I:9; iG (30 of J95G), ss. 4, U, J/i ond 16.

 G, a Digambcr Jain of the Porwal sect, died in 1934 leaving behind his widuw Smt. K, his son G who died in 1939 and three grandsons M, P and R.

In 19j2 M's son S filed a suit for partition of the joinr family properties.

Rajkumar, c1aiming to b~ a son of P adoptr-d by his widow, claimed a I/4th share in the joint family property. The adoption was challenged on the ground that no express authority had been gi\'en by P to his widow to adopt. The trial court held that no express authority \vas required by a son less Jain widow to adopt a son and that the adoption was duly and properly made. .\ccorciingly. a preliminary dece declaring the shares of Smt. K, the branch of M, the branch of R and of Rajkumar to he lf4th each was passed.

Mand others preferred an appeal to the Iligh Court mainly against the findings on the question of adoption.

During the pendcncy of the appeal, the Hindu Succession ,\ct, 1955, came into force.

Shortly thereafter Smt. K died. The High Court upheld -:.he decision of the trial court on the question of the adoption of Rajk11mar.

With respect to the share of Smt. K the High Court held that her interest declared by the prelimi nary decree \Vas inchoate, that she never bcca1ne "possc.ssed"2

BAI SHIRINBAI K. KOOKA

S. K. DAS, J.

L. KAPUR

P. B. GAJENDRAGADKAR

A. K. SARKAR

K. SuBBA RAo

K. N. WANCHOO

N. RAJAGOPALA AYYANGAR, JJ.

s. 5

s. 4

s. 66(1)

Indian Income-tax Act, 1922

Income-tax Act

Schedule D

s. 8

Sale of Goods Act, 1893

s 1

s.66( I)

Income-tax Act

ss. 4


CommiJsioner ef

Jncem,•lax Bomb'!)' Ci17 l v.

B•i S; irU.."i

K. 1'111:•

Satf.ar .1.

' 418

SUPREME COURT REPORTS (1962] SUPP.

that the a;; sessee's Taxable profits on the sale of the shares earlier held as investment are the difference bet\rncn the sale price and the cost price, that is, the price at which she ha.<l actually bought those shares.

BY COl7RT : In accordance with the opinion of the majority, this appeal is dismiBSed with costs.

Appeal dismi8sed. --

S. S. MUNNA LAL

Ft6t11t1Ty 2.1. v.

S. S. RAJKUMAR AND OTHERS (S. K. DAS, M. HmAYATULI, AH a.nd J.C. S1uH, JJ.)

Hindu Lau.~.Jai11s-Adoption-1Vidow, if can odopt without express authority of husband-l'rrliminary decree. for partition dr:clarinu uidotti's sharr-JJ'hrther share ''possr.ssed" by widow--

Death of ui1lou,•-/f shrzrr rpt;('.r/s to es/11.l"-llindu ,'-; ucces.riion Act, I:9; iG (30 of J95G), ss. 4, U, J/i ond 16.

 G, a Digambcr Jain of the Porwal sect, died in 1934 leaving behind his widuw Smt. K, his son G who died in 1939 and three grandsons M, P and R.

In 19j2 M's son S filed a suit for partition of the joinr family properties.

Rajkumar, c1aiming to b~ a son of P adoptr-d by his widow, claimed a I/4th share in the joint family property. The adoption was challenged on the ground that no express authority had been gi\'en by P to his widow to adopt. The trial court held that no express authority \vas required by a son less Jain widow to adopt a son and that the adoption was duly and properly made. .\ccorciingly. a preliminary dece declaring the shares of Smt. K, the branch of M, the branch of R and of Rajkumar to he lf4th each was passed.

Mand others preferred an appeal to the Iligh Court mainly against the findings on the question of adoption.

During the pendcncy of the appeal, the Hindu Succession ,\ct, 1955, came into force.

Shortly thereafter Smt. K died. The High Court upheld -:.he decision of the trial court on the question of the adoption of Rajk11mar.

With respect to the share of Smt. K the High Court held that her interest declared by the prelimi nary decree \Vas inchoate, that she never bcca1ne "possc.ssed"2

3 S.C.R. SUPREME COURT 11EPORTS 419

of any share within the meaning of s. 14 of the Act and that 11142 it remained joint family property which became divisible s. S, Munna Lal amongst the parties proportionately to their shares. The •. appellants contended that the adoption of Rajkumar was S. 8. Rajkumar invalid as no custom applicable to the Porwal sect of the J ains had been established empowering a widow to adopt without the authority of her husband and that the I/4th share of Smt. K declared by the preliminary decree had become her absolute property by virtue of s. 14 of the Act and upon her death it descended to her grandsons M and R to the exclusion of other parties.

Held, that the adoption of Rajkumar was valid.

A son• less Jain widow could adopt a son without the express authority of her husband.

Such a custom among the Jains (not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century.

Though none of these decisions rela~ ted to the Porwal sect of .Jabalpur to which the . parties belonged. They laid down a general custom of the Jains which were applicable to the parties.

The decisions proceeded not upon any custom peculiar to any locality or to any sect of the Jains but upon general custom which had by 1ong acceptance become part of the. law applicable to them. Where a custom is repeatedly brought to the notice of the Courts, 1he courts may held that custom introduced into the law without the necessity of proof in each individual ca5 e.

Pemraj v. Mst. Chand Kanwar, (1947) L. R. 74 l. A. 224 and Mangibai Gulabchand v. Suganchand Bhikamchand, A.LR. (•1948) P. C. 177, relied on.

Sheokuarbai v. Jeoraj, A.LR. ( 1921) P .C. 77, Sara<wathi Ammal v . .Jagadambal, (1953) S.C.R. 1939, Maharajah Govind nath Ray v. Gulal Chand, (1833) 5 Se!. Rep. 276, Bhag1vanda, s Tejmal v. Rajmal Alias Hiralal Lachmindas, (1873) 10 Born.

H.C. Rep. 241, Shea Singh Rai v. Mst. D~<ho and Moor, iri Lal

(1878) L.R. 5 I. A. 37, Lakhmi Chand v. Gatto Bai, (1886) I.L.R. 8 All. 319, Manik Chand Golecha v. Jagit Settani,

(1889) I.L.R. 17 Cal. 518, Hn' nabh Pershad alias Rajajee v.

Ma.ngilDa<, (189q) I. L. R. 27 Cal. 379, ManohmLal v.

Banarsi Das (1907) I. L. R. 29 All. 495,_Asharfi Kttnwar v.

R?tpchand, (1908) I.L.R. 30 All. 197, Rup Chand v. Jambu Prasad (1910) I.L.R. 32 All. 247,.Jiwraj v. Mst. Sheokuwarbai, A I.R. (1920) Na<!. 162, Ranarsi Jlas v. Sttmat Prasad, (1936) I.LR. 08 All. 1019 and Rama Rao v. Raja of Pittapnr, (1918) L. R. 45 I. A. 148, referred to. \

Hold, further that the !/4th share of Smt. K declared by the preliminary decree was "possessed" by her and on hr

S. S. 1lfunuo L..l ..

.~'. S. Rajhi-mar

Shoh J.

death it descended to her grandsom in accordance with provisions of ss. 15 and 16 of the Act. The word "possessed" in s. 14 was used in a broad sense meaning the state of owing or having in one's power. The rule laid down by the Privy Council

that till actual division of the share declared in her favour Ly a preliminary decree for partition of the joint family property a Hindu \vife or mother was not recognised as owner of that .share cann.ot apply after the enactment of the Hindu Succession Act, 1956.

Section 4 of the Act made it clear that the Legislature intended to supersede the rules of Hindu law on all 1nattcrs in respect of which there \Vas an express provision made in the Act.

(luTn11lapura Tag(/inn Jfafada Kotf'uru1tuami v. i..9tfrn Ve.rayya, f 1959) 1 Supp. S.C.R. 968 and Pralqpmull Agaruvtf/a

v. Dliarwbali Bibi, (1935) L.R. 63 I.A. 33, referred.to.

C1nL APPELLATE JuRISDICTI01' : Civil Appeal No. 130 of 61.

Appeal by special leave from the judgment and decree datNl April 25, 1959 of the Madhya

Pradesh High Court in First Appeal N"o. 139 of

}9;)5.

M. C. Sek!lvad, ,!tt, orney-Gentral of India, 8. T.

Desai, J. B. Dadaclumji, 0. C. Jfatku,- und Ravinder Narain, for the appellants.

Saijoo Pra8ad and G. C. Jfathnr, for respondents o. I and 2. (}anpat Rai, for respondent Xo. 3.

196:1. February 23.

The Judgment of the Court was delivered by

SHAH, J.-This appeal with special le&ve i8 against the decree of the Madhya Pmdesh Hir; h

Court confirming the decree of the 1st Additional District. Judge, Jabalpur in Civil Suit No. 12-A of

1952.

The dispute between the p&rties arose in a suit for partition of joint family property. The parties are Digambar Jains of the Porwal Sect and

ro residcntl! of Jabalpur which at the material time

was in Madhya Pradesh. The following pedigree explains the relationship between the parties :

I ,\. uunalal (Def. 1)

Pyaribahu

(Def. 4)

I I

Garibdas=Mst. Khilonabai

d. 24. 7 .34 (Def. 3) d.3. 7 .56

I I Gulzarilal I d. 13.4.39

I I Padamchand d.10.1.36 Ramchand (Def. 2)

widow Bhu1ibai

(Def. 11) ·

I Adopted son Rajkumar (Def. 12) adopted 26.7,52

Chandranibahu (Def. 8)

I I

I I I I I Saheblal Ballu Nand Hiralal Ishwari I I Kumar Prasad (Plaintiff) (dead) (Def. 5) (Def. 6) (Def. 7)

I I

I Rajendra Kumar (Def. 9) Abbay Kumar (Def. lO)

Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st Additional Subordinate Judge, Jabalpur on June 21, 1952, for a decree of partition and separate possession of his l/12th share in the joint family property.

He claimed that in the property his father's branch was entitled to have a half share and the remaining half was owned by

IY6S

S. S. Munna Lal

. . v.

S. S. Rojkumar

Shoh J.

S.S. Mun11a Lal

•• S. S. Rqjkumar

Shah J.

Ram Chand and his branch. The Additional Dist rict Judge ordered, that Khilonabai grandmother of llfonnalal and 1'.amehand-the wivrs of ?llunnalal and Ramehand and their sons and Bhuribai (widow of

Padamchand) and Hajkum.ar who chimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be implcadc<l as defendants to the suit.

At the trial l>f the suit the right of Saheblal to a share. in th<' property was not qmstioned: tho dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property.

Padamrhand had died before tho enactment of the Hindu Womens' Right t-0 Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family.

But Bhuribai and Hajkumar pleaded that the parties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Central India, ;\ladhya Pradesh, Vindhya Pradesh, North and W('stern India, and Hajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family a11d entitled to a share in tho property and accretions thereto.

The validity of the adopt.ion of Rajkumar was challenged 011 many grounds, one only of which is material in this appeal. It was submitted hy the conte5ting defendants and Bhuribai had no authority exptess or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. 'lhe Additional District Judge rejected this plea and ordered a preliminary decree for par ti ti on and declared that the share of the plaintiff was I/24th, of ;\Iunnalal, his wife and _3 sons eolleutivoly was 5/24th, of lamchand and hlB sons l/4th, of Khilonabai I /4th and the remaining l/4th share belonged to Iiajkumar.

Against the decree, Munnalal, Ramchad, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhy.a Pradesh.

During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnalal applied to be implea~ ded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956, and that the sons of Munnalal, Rarnchand and Padam Chand could not take a share in Khilonabai's interest.

Before the High Court two questions were canV:assed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the . preliminary decree on her death. The High Court upheld the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf. In so holding the High Court relied upon the judgments of the Privy Council in Pemraj v. Mst.

Ohand Kanwar and Mangibai Gulabchand v.

Suganchand Baikamcand (1:. But the High Court declined to accept the view of the trial Court that the right ofKhilonabai declared by the preliminary .decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under t.he decree being incohate was not "possessed" by her within the meaning of s. 14

(I)

(1947) L.R. 74 I.A. 254. (2) A.i, R. (1948) P.C. 177.

1962 -·-

8. S. Munna Ltl

S.S. Rajkumar

Shah J.

8 S. !llwmo Loi

S. ). Rojlnanir

:>hoo J.

of the Hindu Succession Act, 1956, and on her <loath it merged into the cstato, The High Court observed : "The result is that the interest of Smt.

Khilonabai remained incubate am! fluctuating , o that after her death, the interest decla1cd by the preliminary decree is available for partition as joint family property and consequently ss.lii and lt.i of the Hindu Succession Act arc inapplicable to tho interest. As the property never became her absolute property by virtue of s.14 of the Act, the same remained joint family property." Accordingly the

decree of the trial Court was modified and l /:kd Share in the joint family property was awarded te

Rajkumar, l/:!rd to the branch of :IIunnalal u11d the remaining 1 /:Jrd to the bra11ch of Ramchaud and adjustments were made on that footing in the shares of the plaintiff and other membors of the family.

In this appeal by defendant Xo. 1 (lunnalal) 2 (Ramchand) and 4 to 10, three contentions were raised :

(1) in the absence of express authority from her husband, Bhuribai could not adopt a son,

(2) that the interest of Khilonabai under the preli minary decree became her absolute property by virtue of s.14 of the Hindu Succession Act, 195ti and on her death it devolved upon her giandsons Munnalal and gamchand-defonctants I and 2-and

(3) the trial Court was in error in delegating to a Commissioner judicial function, such as, a.llcertainment of property to be divided and effecting partition.

The third question is easily answered. The trial court appointed a commissioner to propust a partition of joint family propt>rty, and for that pur pose the court authorised bim to ascertain the property, the debts which the family owed and also tho mdividual liability of the parties for the debts.

For deciding those questions the Commissioner was empowered to record statements of th& part ics, frarue

issues and to record evidence as might be necessary.

The commissioner waR also directed to submit his proposals relating to the right of Bhuribai to b.e maintained out of the joint family property. This order, it appears, was passed with the consent of all the parties. It is true that the decree drawn up by the trial Court is not strictly in accordance with the directions given in the judgment. But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family.

By so authorising the Commis>ioner, the trial Court did not abdicate itR functions to the comissioner : the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would &djudicate upon such proposals in the light of the decree, and the contentions of the parties. The proposals of the commissioner cannot f1 om their very nature be binding upon the parties nor the reasons in support thereof. The order it may be remembered was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court.

We do not think that any case is made out for modifying that part of the order.

The parties to this dispute are Digamher J ains of the Porwal sect and are resident of Jahalpur.

Jains have generally been regarded as heterodox Hindus and in the absence of special custom they are governed by the rules applicable to Hindus. As observed by the Privy Council in Sheokuarbai v. Jeorafj.(') The Jains are of Hindu origin ; they are Hindu dissenters, and although as was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages-"Generally adhering to ordinary Hindu law, that is, the law of the three

(I) A.I.R. (1921) P.C. 77.

196~

S. S. llfuna Lal

v, S. S. Rajkum'°r

Shah J.

19~

8. S. llumaa Lal

S, S. J, n)kt.mOT

Shah J.

4Hi SUPREME C'OURT REPORTS (1962] stJPP.

superior castes, they recognise no divine authority in the Vedas and do not practise tht: Shradhs, or cere111ony for the dead." "The due performance of the Shradhs, or religious ceremonies for the dead, is at the baso of the religious theory of adoption, but the Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contra1y usage x x x." But amongbt the Jains a custom enabling a widow to adopt. a son to her husband without express authority has been recognised by judicial decisions spread over a period longer than a century. In Pemraj v. ,}f'U8Gmmad Chand Kanwar(:), the Judicial Committee of the Privy

Council after •a review of the case law obseved :

"x x x x, in many other parts of India" (parts other than the Provinces of Madrae and the Punjab) "it has no"" been established by decisions based on evidence from widely separated districts and from different sect.s that the Jains observe the custom by which a widow may adopt to her husband without his authority. This custom is based on religious knants common to all sects of Jaine, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none oft.he cases has a distinction been drawn between one sect and another. It is now in their Lordships' opinion no longer premature to hold that the custom prevails generally among all Jaine except in those areas in which there a1 e opccial reasons, not operative in the rest of India, which explains why the custom has not established itself, Mayne, in his treaties on Hindu Law and Usage, at pai:o 209, has lent the weight of his authority to the proposition that among the Jains, except in tho MadraH Presidency a sonless widow can adopt a son to her

(l) (1947) L.K. 74 LA. 2$4.

husband without his authority or the consent of his sapindas". This view was reiterated by the Privy Council in a case reported in Mangibai Gulabchand

v. 8uganchand Bhikamchand (').

The Attorney General for the appellants, however, contends that there is no evidence of a custom authorising the widow of a Porwal Digamber Jain residing in Jabalpur to adopt a son to her husband without express authority. Counsel submitted that the observations in the two cases relating to the custom of adoption must be restricted to the sects to which the parties to these cases

belonged, and in so far as they purport to extend the custom to all Jain residents in India outside Madras and the Punjab they are mere d!cta and not binding upon this Court.

In Pemraj's case the parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in Mangibai's case the parties were Marwari Jains of the Vis-Oswal sect who having migrated from J odhpur had settled down in the Thana District of the Bombay Province, but the opiniun of the Judicial Committee expressly proceeded upon a well-recognised custom applicable to all Jains in the territory of India (excepting Madras and the Punjab) and not upon proof of a restricted custom governing the sects of Jains to which the parties belonged. Undoubtedly, as observed by this Court in 8araswathi Ammal v. Jagadamhal (') in dealing with the quantum of proof rvquired to prove a family or local custom, "it is incumbent on a party Retting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any customs applicable to the, parties concerned that can be the rule of decision in a

particular case. x :x: x

(1). A.J.R. (1948) P.C. 177.

(2) {1U53) S.C.R. 939.

S.S. Munna.Lal v.

8. S. Rajkwnar

Shah J.

J96Z

S.S. Munna l<il

S. 8. Rikwnar

Shall J.

428 SL.il>REME COGRT REPORTS [1962] SUPP.

Theory and custom arc antitheses, custom cannot be a matter mere of theory but must always be a matter of fact and one custom cannot uo cleductcd from another.

A community living in one particular district may have evolved a particular custom but from that it does not follow that the cummunity living in another district is necessarily following the same custom." But the application of the custom to tho parties to this .appeal does not appear to proceed upon analogies or dcductioDS.

It governs the parties, because the custom has become a part of the law applicable to Jains in India (except in Madras and the Punjab) by a long and uninterrupted course of acceptance. .

A review of the cases decided by difforent Courts clearly shows that the custom is generally applicable to Jains all over India, except the Jain domiciled in Madras and the Punjab. The earliest case of which a report is available is Maharaja <iovirulnatli Ray v. &'uld Charul (') decided by the

Saddar Court Calcutta in Hl33.

In that case the validity of an adoption by a Jain widow of a sou without express authority from her husband was questioned. The Court after consulting the Pundits held that by Jain law a sonless widow could adopt a son just as her husband for the performance of religious rites and that the section of the 1; itis or priests to tho adoption is not essential. In Bhagwanda, s Tejm1.Jl v. Rajrnal aliasliiralal Lachmidas(')

tho Bombay High Court opined that the widow of a Jain was a delegate either by express or implied authority to adopt a son, but she could not d., logate to another person that authority to adopt a son to her husband after her death. In Shea Sirujh Rai v.

M U&1-Umut Dakho flnd ti oorari Lal, ( ') decided in I 878, the Privy Council affirmed the view of .the North West Provinces High Court that a sonles widow of a Jiiin had the right of adoption without the permission of her husband or the consent

ii) (1833) 5 Sel. Rep. 276.

(2) (1873) 10 llom. H.C. Rep. 211.

(3) (1878) L.R. 51.A. 87 •

of his heirs.

In that case before the Subordinate Judge and bC; fore the High Court evidence was recorded of the custom applicable to Jains general ly, in different place such as Delhi, Jaipur, Mathura, Banaras and it was held that the custom was established by evidence. The parties to the suit were Agarwal Jains of Meerut District, but decisi"n uf tho Board proceeded upon a custom found on e ,•idence to be common to all J a ins. In Lakhmi, Chand v. Catto Bai. (') decided in 1886, again the power of a Jain widow to adopt a son to her deceased hmband was held proved. In Jlilanik Chand Golech'l

v. J agat Settani, ( 2) decided in l 889, the High Court

of B"ngal upheld a r.ustom in respect of adoption by a widow of an Oswal Jain. Tho deci8ion of the Court did not proceed upon any custom peculin, r to the Oswal sEct. In Harnabh Pershad alias Rajajee v .

./J1angil Das(') decided in 1899, it w>is held upon the evidence consisting partly of judicial decisions and partly of oral evidence that tho custom thl]-t a sonless Jain widow wn, s competent to adopt a son to her husband without his permission or tho consent of his kinsmen, was sufficiently established and that in this respect there was no material difference in the custom of the A!l'garwal, Choreewal (Porwal), Khandwal and Oswal sects of the Jains ; and that there was nothing to differentiate the Jains n, t Arrah from the Jains elsewhere.

The judgment of the case proceeded upon an elaborate examination of numerous instances in which the custom was held established. In Manohar Lal v. Banarsi Das(') and in A8 ha1ji K1tnwar v. Ru.pchanrl(') a similar castom was held esta.hlished. In the latkr ca, se a large number of witnesses were examined at different places and on a review of th0 decisions and the evidence the Court held the m1stom proved. ' The judgment of the Allahabad

(l) (1886)1.L.R.UAl\.319.

(2) (188'lJl.1-.R.17Cal.5<8.

(3) (18991J.L.R.27 Cal. 379.

(4) (1907) 1.1 .. R. 29 All. 495.

(5) (1908) J.L.R. 30 All. 197.

l:Jb2

S. S. iJ'Iurina L'll

S.S. Rajlcnml'r

19fi2

S.S. Munno LaJ

S. S. Rajkumor

Shah J.

430 SUPREME OOURT REPORTS [19e2) SUPP.

High Court in .-1sharfi's case was affirmed by the Privy Council in R11p Chand v.· .Jamim Prasod. ( r) It may be stated that the right of a .Jain widow to adopt without authority of her husband was not questioned before the Privy Council. Iu Jiwraj

v. Jft. Sl/R/Jhw:ar/J(Ji (') the Court of the Judicial Commissioner, agpur held that the permission of the husb1ind was not neceHSary in the case of a Jain widow. to adopt a son. This c'l.Be was also carried to the Privy Council and the judgment was affirmed in Slieokuarbut v . .Jr.oraj (").

In Banarsi Das v. Samat Prasad(') a similar custom was held

estitblishcd. The decisions in all theRe c&Bes proceeded not upon any custom peculiar to the locality, or to the seet of .fains to which they belonged, but upon tho view that being Jains, they wore govern1•d by the custom which had by long accep

ta.nee hecome part of the law applicable to them. It is well-settled that where a custom is repeatedly brought to the notice of the Courts of a countrv, the courts mav hold that custom intro duced into the law without the neceBSity of proof in each individ1ml case. (Ramn. Rno v. Raja of Pitlapnt) (•).

The plea ahout the invalidity of the 1ldoption of Rajkumar by Rlmribai must therefore fail.

Khilonabai died after the Hindu Succession Act was brought into operation on June 14, l!l51l.

This Act by s. 2( I )(b) applies to Hindus and also to persons who arc , Jains by religion.

The preliminary deer"e was passed on .July ~9, 195.5, and t.J.ercby Khilona.hai wa.s declared entitled to a fourth Hhare in the property of the family.

Section 14 of ,, f the Hindu SuccoHsion Act, l!l51l provide~:

•'14(1) Any property possessed hy a fomalo Hindu, whether acquired before or after the commencement of this Act, ahall be

11) (19IOJ [.J..R. 32All.1f7. 121 A.I.R. (1920\ Nag.162.

<3) A.!.R. (1921) P.C. 7;

(4) (1936) l.1-R 58 All.1019. (5)

(1918) L.R. 4 5 I.A. 11~.

3 S.C.R.

SUPREMJJ: COURT REPORTS 431

held by her as full owner thereof and not as a limited owner.

EXPLANATION. In this sub-section "property" includes both movable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after • her marriage, or by her own skill or exerti-On, or by purchase or by prescription, or in any other manner "hatsoever, and also by such property held by her as stridhana immediately beforn the commencement of this Act. ·

(2) Nothing contained in sub-section ( l) shall apply to any property u.oguired by

way of gift or under '.1 will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." Section l 5 provides:

"15 (I) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- -

(a) firstly, upon the sons and daughters (including the children of any predeceased son or d•m

ghter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother ml father;·

S.S MunnaLal

S. s. Bajlcumar

Shah J.

' S Af11m1al4l v.

S. ). l111ji..uninr

(d) fourthly, upon the heirs of the father;

(e) lastly, upon the heirs of the mother;

(2) Xotwithstanding anything contained in sub.section (I),--,

(a) any property inherited by a female Hindu from her father or mother shall devolv<', in the absence of any son or daughter of the deceased (including the children of any predeceased son or <laughter) not upon the other heirs referred to in sub-section (I) in the order specified therein

but. upon the heirs c1f the father; and

(b) any property inherited by a

female Hindu from her husband or from her father-in-litw shall devolve, in the absence of any son or ditughter of the clcceasc<l (including the children of any

predeceased son or <laughter) not upon the other heirs referred to in su b.scction (I) in the order specified therein, but upon the

heirs of the husba.nd."

s., ction 16 which prescribes the' order of succession :ind manner of distribution among the heirs of a

Hindu female providPs by Jtule :

"Among the heirs specified in subHection (I) of section I:), those in one entry shall be preferred to tho-; e in any succeeding entry, and those include< 1 in tho s:ime entry sh:ill ia.ke simultaneouo I~."

Counsel for Rajkumar concedes, and in our judgment he is right in so conceding, that if the share declared by the preliminary decree in favour of Khilonabai. is property possessed by her at the date of her death, it should devolve upon her grandsons- Munnalal and Ramchand, to the exclusion of Raj. kumar adopted son of Padam Chand.

This Court in Gumalapara Taggina Matada Kotturuswami v. Setra Veeravva (1) held that "The word "possessed" ins. 14 is used in a broad sense and in the context means the state of owning or having in one's power". The preliminary decree decla, red that Khilonabai was entitled to a share in the family est:ite and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her. But counsel for, Rajkumar submitted that under the preliminary decree passed in the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out o! the estate and that her right continued to retain that charitcter till actual division was made and the share declared by the preliminary decree was separated to her: on her death before actual division the inchoate interest again reverted to the estate out of which it was carved.

Counsel relied upon the judgment of the judicial committee in Pratpamull Agarwalla v. Dhanabati Bibi (2) in support of his plea that under tho Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the di vision of the property is actm Uy made, as she has no pre-existing right in the estate except a right of maintenance.

Counsel submitted that this rule of Hindu law was not affected by anything contained in.s. 14 of the Hindu Succession Act. By s. 14 (1) the Legislature sought to convert the interest of a Hindu female which under the

(I) [1959] l Supp. S.C.R. 968.

(2) (l9aS) L.R. Ga I.A. 33.

S.S. Munna Lal '.

S. s. Rajkumar

EhahJ.

I96t

:::i. s. A-11''1.na Loi

S S. Rojkumar

Sastric Hindu law would have been regarded a.a a limited interest into an :i.bsolute interest and by the explanation t.heretrJ gave to the expression "prop<\rty" th<• widest COlllh>tation .. Tho expression includes property acq11ired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenanee or arrears of maintenance, or by gift from :my perso11, whether a relative or not, before at or aft.er her marriage, or hy her own skill or exert.ion, or hy purclmse or by prescription, or in any other man11er what.so-evcr. Ry s, 14(1) manifostlv it. is intended to convert the interest which a Hindu fomal" h:tH in property however restricted the mtt.ure of that interest under the Sastrio Hinrlu law may be into absolute estate.

Prata p m11ll'.• case undoubtedly laid down that till

actu:tl division of the share decln.red in her favour by a prelimin11, ry decreP for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgm1'nt apply aftpr the ennt.ment of the Hindu Succussion Act.

The Aet is a codifying nnactmcnt, and has made far reachiu\( ch<mgcs in t.hrJ structure of the Hin"lu law of i11h••i'ita11ce, and succession.

The Act confers upon Hindu femaJes full rights of inheritance, and sweeps away the traditiona.l limita.tions on Ler powers of dispositions which were rowuded under . the Hindu law as inherent in her estat11. She is under the Act. regarded as a fresh stock of rlescent in respect of prop<>rty possessed

hy her at th,, time of hor den•:h. It is true that unde!" the ::i<it-ric Hindu law. the share given to ; t Hindu widow on partition between her sons or

her grands.ms w:i..q in lir.u of her right to maint.enancn.

Shu w<ts not "ntitlecl to claim partition.

But the Logislature by enacting t.h" Hindu Womens' Right to Property Aot, 1937 made a eignificant 1fopart11re in t.hat branch of the law: the Act gave a Hindu widow th., sam1J intoreat in tho property

3 S.C.R: SUPREME COURT REPORTS 435 ' . which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil.

It cannot be assumed having regard to this develop ment that in enacting s. 14 of the Hindu Succession Act, the Legislature merely intended tu declare the rule enunciated by the Privy Council in Pratap .mull' s case.

Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts:

"Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :

(b) x x x x x" Manifestly, the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which s. 14 occurs or in the phraseology used by the Ll'gislature to warrant the view that such a right decla red in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of s. H. In the light ('f the scheme of the Act and its avowed purpose it would be difficulr, without doing violence to the language used in the enactment, to assume that a right decland in property in favour of a person under a clecree for partition is not a right to property. If under a preliminary decree the rigbt in favour of a Hindu male be roi"arded as property the right declared in favo11r of a :&indu female must also be reardeq

S. S. Munna Lal v.

S. S. Rajkumar

Shah .I

8, S. Jfunno 1..l

8. 8. Rajk.,..,

Slid. J,

IY~2

Fth1uary 21.

as property. The High Court was therefore, in our judgment, in error in holding that the right dccla rc<l in favour of Khilonahai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Raj Kumar th1t it was not property within the meaning of s. 14 of the Act.

On that view of the case, by virtue of ss. 15 and l6 of the Act, the interest deolared in favour of Khilonabai devolved upon her sons Munnalal and Ra.mchand to the exclusion of her grandson Rajkumar. The decree passed hy the High Cuurt is therefore modifie<l in this respect and the decree passed by the trial Court restored. Having regard to the p11rtial success of the parties, there will be no order as to costs in this appeal and in the High Court.

Appeal partl, y allowed.

R. C. JALL

UNION OF INDIA

(B. P. SI:SIIA, c. J., K.

SUBBA RAO, N. RAJAGO PALA AYYA~GAH, J. R. '.\TuDHOLKAR and T. L.

VENKATARAMA AIYAR, JJ.)

Railu•a.y -- ,'\1litfo1 recorer.rJ of CP&.r1-limitation-Jlaint .. n.inrzbilit11 -- Co11signee f !iable--l1ulirtn Limitation Act, mos (LY of 1908), Art.;, 149, no;; o -- Con•litution of l11dia, Arts 265, .)72 - Ordinance Yo. 39 or 1944 -- Ordinance 6 of 1947, .•.. 1-•; oal Production Fund Ritl,., /!144, rr.6, .1, 3(a), 3(b) -Supreme Court Rule.•, 19W, as amended, 0. XI' lll, r.2.

S. S. MUNNA LAL

S. S. RAJKUMAR AND OTHERS

ss. 4

s. 14

S. 8

s. 14

(1878) L.R. 5 I. A. 37

(1918) L. R. 45 I. A. 148

S. 1

ss. 15 and 16

s. 14

Hindu Succession Act, 1956

Section 4

(1935) L.R. 63 I.A. 33

Property Act, 1937

ss. 15 and 16

Hindu Succession Act, 1956

s. 14

(1947) L.R. 74 I.A. 254

Hindu Succession Act, 1956

Hindu Succession Act

Hindu Succession Act

S. 8

s. 2( I )(b)

Section 14

section 16

s. 14

Hindu Succession Act

s. 14

s. 14

Hindu Succession Act

Section 4

s. 14

s. 14

ss. 15

Limitation Act

Arts 265

Supreme Court Rule