Often a question is raised as to whether a single member can constitute HUF. Single member may be there if the other members of the HUF dies or when the full partition of HUF occurs and the assets are devolved to an individual. In such cases, question arises as to the income from such properties whether it will be income of an HUF or individual income?

 

Expressions and words used as “Hindu undivided family”in section 2(31) treats an HUF as an entity distinct and different from an individual. Normally, the Word “family” connotes a group of people related by blood or marriage to each other. It refers to Plurality of persons  is an essential attribute of a family.

It may reasonably be said that a single person, male or female, cannot not constitute a family.

 

In view of this, it will be reasonable to say that a single member cannot offer the income as an income of an HUF  income in all such cases has to be treated as income of an individual only.

 

 

The same view has been affirmed by the Hon’ble Supreme court in the case of C. Krishna Prasad Vs. Commissioner Of Income Tax wherein the following views were expressed.

1. “Family” connotes a group of people related by blood or marriage. The word “family” always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. He or she would remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Sec. 2(31) treats an HUF as an entity distinct and different from an individual and it would be wrong not to keep that difference in view. It is well-settled that a Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family : it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. The plea that there must be at least two male members to form an HUF as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widows of deceased male members. The expression “HUF” in the IT Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law.
2. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession. A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten. In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above-mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. Excursions to the realm of speculation may be legitimate and justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose one has to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can be hardly any doubt that the assessee is an individual and not a family.—Anant Bhikappa Patil vs. Shankar Ramachandra Patil AIR 1943 PC 196 explained;C. Krishna Prasad vs. CIT (1969) 75 ITR 526 (Mys) : TC37R.132 affirmed.
3. “Family” connotes a group of people related by blood or marriage. The word “family” always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. He or she would remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till per chance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Sec. 2(31) treats a Hindu undivided family as an entity distinct and different from an individual and it would, be wrong not to keep that difference in view. The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widows of deceased male members. The expression “Hindu undivided family” in the IT Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law.
4. A coparcener remaining unmarried after partition cannot constitute an HUF.
5. Expression “Hindu undivided family” connotes a group of people related by blood or marriage and cannot consist of a single individual.

 

 

1. KRISHNA PRASAD vs. COMMISSIONER OF INCOME TAX

SUPREME COURT OF INDIA

H.R. Khanna & A.C. Gupta, JJ.

Civil Appeal No. 1553 of 1970

12th November, 1974

(1974) 42 CCH 0449 ISCC

(1975) 1975 CTR 0007 (SC) : (1974) 97 ITR 0493

Legislation Referred to

Section 2(31)(ii)

Case pertains to

Asst. Year 1964-65

Decision in favour of:

Revenue

H.R. KHANNA, J.

This appeal on certificate is against the judgment of the Mysore High Court whereby the High Court answered the following question referred to it under s. 256(1) of the IT Act, 1961 (hereinafter referred to “the Act”), in the affirmative, in favour of the revenue and against the assessee-appellant : “Whether, on the facts and in the circumstances of the case, the assessee was rightly assessed in the status of an individual for the asst. yr. 1964-65 ?”

2. C. Krishna Prasad, assessee-appellant, along with his father, Krishnaswami Naidu, and brother, C. Krishna Kumar, formed an HUF up to 30th Oct., 1958, when there was a partition between Krishnaswami Naidu and his two sons. In the said partition the assessee got some house properties and vacant sites. The partition was recognised by the Department and an order under s. 25A of the Indian IT Act, 1922, was passed recognising the partition with effect from 1st Nov., 1958.
3. On the date of partition and also during the relevant period, i.e., the year ending on 31st March, 1964, the assessee was unmarried. Up to the year 1963-64, the assessee was assessed in the status of an individual. For the asst. yr. 1964-65, the assessee filed a return showing his status as an individual. In the course, however, of the assessment proceedings for the asst. yr. 1964-65, the assessee claimed that he should be assessed in the status of an HUF. The ITO did not accept the claim of the assessee and held that his status was that of an individual. The order of the ITO was affirmed on appeal by the AAC and on further appeal by the Tribunal. At the instance of the assessee, the question reproduced above was referred to the High Court. The High Court, as already mentioned, agreed with the Departmental authorities and answered the question against the assessee.
4. The short question which arises for determination, as would appear from the resume of facts given above, is whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of an HUF even though no other person besides him is a member of the alleged family. This Court in the case of Gowli Buddanna vs. CIT (1966) 60 ITR 293 (SC) : TC37R.121 refrained from expressing an opinion on the point “whether an HUF may for the purposes of the Indian IT Act be treated as a taxable entity when it consists of a single member “male or female”.
5. After hearing the learned counsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee.
6. Sec. 4 of the Act provides for the charging of income-tax on the total income of every person subject to the conditions prescribed in that section. “Person” has been defined in s. 2(31) of the Act and includes, inter alia, an individual and an HUF. The inherent fallacy of the case set up on behalf of the assessee-appellant, in our opinion, is that according to him a single individual can constitute an HUF and be assessed as such. “Family” connotes a group of people related by blood or marriage. According to Shorter Oxford English Dictionary, 3rd Edn., the word “family” means the group consisting of parents and their children, whether living together or not; in a wider sense, all those who are nearly connected by blood or affinity; a person’s children regarded collectively; those descended or claiming descent from a common ancestor; a house, kindred, lineage; a race; a people or group of peoples. According to Aristotle (Politics I), it is the characteristic of man that he alone has any sense of good and evil, or just and unjust, and the association of living beings who have this sense make a family and a State. It would follow from the above that the word “family” always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does not constitute a family. He or she would remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till perchance he or she finds a mate. A family consisting of a single individual is a contradiction in terms. Sec. 2(31) of the Act treats an HUF as an entity distinct and different from an individual and it would, in our opinion, be wrong not to keep that difference in view.
7. It is well-settled that a Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family : it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great grandsons of the holder of the joint property for the time being. The plea that there must be at least two male members to form an HUF as a taxable entity has no force. Under Hindu law a joint family may consist of a single male member and widow of deceased male members. The expression “HUF” in the IT Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law [See Attorney-General of Ceylon vs. AR. Arunachalam Chettiar (1958) 34 ITR (ED) 42 (PC) and Gowli Buddanna vs. CIT (1966) 60 ITR 293 (SC) : TC37R.121]. In the case of CIT vs. RM.AR.AR. Veerappa Chettiar (1970) 76 ITR 467 (SC) this Court observed that under the Hindu law it is not predicated of a Hindu joint family that there must be a male member. It was accordingly held that so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues. One thing significant which follows from the above is that the assessment in the status of an HUF can be made only when there are two or more members of the HUF.
8. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see page 272 of Mulla’s Principles of Hindu law, 14th Edn). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten (see page 320 ibid.). In view of the above, it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above-mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax we have to look to the relatives as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate and justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. As things are at present in the instant case, there can in our view be hardly any doubt that the assessee is an individual and not a family.
9. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhiikappa Patil vs. Shankar Ramchandra Patil AIR 1943 PC 196. As considerable reliance has been placed upon that case, it may be necessary to deal with that case at some length. The dispute in that case was between parties governed by Hindu law and related to watan lands. The pedigree table of the parties was as under :

Dhulappa

.	Punnappad. 1901	.	.	Hanamantappa	.
Gundappa d. 1902	.	Narayan d. 1908	.	Ramchandra	.
.	Bhikappad. 1902	.	Shankar defendant	Hanmant	Babu
.	Gangabai	.	.	.	.
Keshav	.	.	.	.	.
.	.	Anant adopted 1930 plantiff	.	.	.

Dhulappa’s sons, Punnappa and Hanamantappa, separated in 1857. The watan lands in dispute went to the share of Punnappa. Narayan, one of the sons of Punnappa, separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in 1905, leaving his widow Gangabai and son, Keshav. Narayan died issueless in 1908 leaving two plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by inheritance on Keshav. Keshav died unmarried in 1917. At that time his nearest heir was his collateral, Shankar, defendant. Shandar obtained possession in 1928 of the land in dispute, which had been left by Keshav after bringing a suit against Gangabai. In 1930 Gangabai adopted Anant, plaintiff, as a son to her deceased husband Bhikappa. In 1932, Gangabai as the next friend of Anant brought a suit for possession of the land in dispute against Shankar. The trial Court decreed the suit. On appeal the High Court dismissed the suit for possession. On further appeal the Judicial Committee restored the decree of the trial Court. It was held by the Judicial Committee that the power of a Hindu widow to adopt does not come to an end on the death of the sole surviving coparcener. Neither does it depend upon the vesting or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The Judicial Committee also held that on the death of a sole surviving coparcener a Hindu joint family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person other than his adoptive father if such estate has vested before the adoption in some heir other than the adopting mother.

10. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving coparcener. The question with which we are concerned, as to whether an individual can constitute an HUF, was not before the Judicial Committee and it expressed no opinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till 1930 when Anant, plaintiff, was adopted, there was a joint Hindu family even though the joint family consisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect. As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is now firmly established that the rights of the adopted son relate back to the date of the adoptive father’s death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latter’s death (see page 543 of Mulla’s Principles of Hindu Law, 14th Edn). This principle of relation back is subject to certain exceptions but we are not concerned with them. As Bhikappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the time of the latter’s death in 1905. A necessary corollary of the above legal fiction would be that Anant as the adopted son of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai consequently cannot be considered to be the sole member of the HUF during the above period.
11. There is no merit in the appeal. It is accordingly dismissed with costs.