THE ATTORNEY- GENERAL, Appellant, and A. R. ARUNACHALAM CHETTIAR and others

014-NLR-NLR-V-59-THE-ATTORNEY-GENERAL-Appellant-and-A.-R.-ARUNACHALAM-CHETTIAR-and-others.pdf

The Attorney-General v. Arunachalam Chelliar
4 9
Vr – r [lx the Pfin'Y QotnrcrL]
1957
PresentViscount Simonds, Lord Reid, Lord Cohen,Lord Somervell of Harrow,"and Mr. L. M. D. de Silva■—■•'or.-: s. -. •. …-
THE ATTORNEY-GENERAL'j'Appellant, and AR. ARUNACHALAMCHETTIARand others (Substituted for V. Ramaswami Iyengar and’ another; Administrators of the Estate of Rm. Ar. Ar. Rm.Arunachalam Chettiar, deceased), Respondents ■*"’".
.. PRivr Council Appeals Nos. .16 and 17 of 1955
S. G. 235 and 236—D. G. Colombo, 37 and 38 {Special) .
Estate duly—Hindu undivided family—Mitakshara system—Death of a coparcener' in 1934—Death of a sole surviving coparcener in 1938—Eligibility of .estate■duty—Hature of a coparcener's interest—Nature of a single surviving coparcener's
interest—jEslale Duty Ordinance, No. 8 of 1919, ss. 2 (1) and (2), 7, 8 (1) (a)
'(b), 17 (6)—Estate Duty Ordinance, No. 1 of 1938, s. 73 (in its 'unamended
. form).'■•-/*.;.g –
A father and his son, who were Natukottai Chettiars governed by the' Mitakshara system of Hindu- laiy, were coparcenary members of a joint Hindufamily which had extensive trading and other interests in India, Ceyloni andother far Eastern countries. Immediately before July 9, 1934, when the son -died, he and the father were the only living coparceners^ On the death ofthe son, the' father became the sole surviving coparcener of the family..-' But. there were females also who, though they had not' the rights of coparceners, yethad rights of residence in, and maintenance out of, the joint family property.Moreover it was competent for the surviving widow of the son to adopt a sonf- who would thus become a coparcener with the father, and the father himself.=; during his life and, after his death, his surviving widows had a similar powerof adoption. These powers were in fact exercised after the father’s death.
. The son died on the 9th July, 1934. The father died on the 23rd February,
' 1938, shortly after the Estato Duty Ordinance No. 1 of 1933 came into' operation. Both of them died in India where they were domiciled.-. .
. After the son died in 2934, assessment to estato duty was made by the-,-Commissioner of Estate.Duty, Colombo, in respect of what was describedas the “ Deceased’s half share ” of the assets of the business carried on bythe family in Ceylon and of certain other assets. It .was claimed that estate' duty in respect of the son’s estate was exigible eitheriinder section 7.or undersection 8 (1) (a) or (b) of the Estate Duty Ordinance No. 8 of 1919. Estate.'’duty was also claimed under the Estate Duty .Ordinance No. 1 of 1938 in: respect of the estate of the father after his death in 1938.-* ■— -r ■’ ■ "» ,
Held, in Appeal No. 16, (i) that a first principle of taxing law is that its. language is not to be strained to an unnatural use in order to ^enlarge its scope.
• (ii) that no property “ passed ” upon the death of the son within tlje meaning..ofsection 7 of the Estate Duty Ordinance No. 8 of. 1919.' Jt camjot be sajdf^that a'coparcener has'a “ share " of.the famijy'proiTe'rty'which “ passes.” on *
his^deatb."-^:-.-•1…j .5It.
——^-£±S. '
-J. BT.'B 89514—1.593 <10/571"
50 VISCOUNT SEVIONDS—The Attorney-General v. Arunachalam Chettiar
that it could not b© contendod that the son was at or immediately
before hig death “ competent to-dispose ” of a share of the Ceylon propertyof the undivided family. Therefore, the provisions of section 8 (1) {a) worenot applicable.' '- "r'.-
that the language of the Ordinance was inept to embrace the case of
the death of a coparconor. It could not bo contended that there' wks" anyproperty in which the son had an interest ceasing on his doath'within themeaning of section 8 (1) (6), road with section 17 (6).-.
Held further, in Appeal No. 17, (i) that the father was, at his death in 1938,a member of a Hindu undivided family the continuity of which was' preserved,
' after his death, by the adoptions.. ~ -':v.‘ ,-V '' •
(ii) that, though it may bo correct to speak of a single surviving coparceneras the “ owner”, yet it is still correct to describe that which ho owns as thojoint property of the undivided family. Therefore, tho exempting provisionsof section 73 (in its unamended form) of tho Estate Duty Ordinance No. 1 of193S protected from taxation the property which was in the possession of thofather at the time of his death.
jA-PPEALS from two judgments of the Supreme Court reported in55 N. L. R, 481 and 55 N. L. R. 496. ‘’
Sir Frank Soskice, Q.G., with John Senter, Q.G., R. K. Handoo andJenny Biss chop, for the appellant.-
N. Pritt, Q.G., with Ralph 31 iliner, J. D. Derrett and SirimevanAmerasinghe, for the respondents. ,-
-.•Gur. adv. milt.
[The following judgment was delivered in Appeal No. 16 :—] '
July 10, 1957. {Delivered by Viscoxjkt Sdionus]—-•
– This appeal from a judgment and decree of the Supreme Court ofCeylon and the succeeding appeal, No. 17 of 1955, from the same Courthave certain facts in common which will be stated in the opinion nowgiven by their Lordships and will not be repeated in their opinion on thesecond appeal.'*•'”
. Both appeals raise questions as to the eligibility of estate duty underthe relevant Ordinances of Ceylon upon the death, first, of one Em. Ar.Ar. Rm. Ar. Arunachalam Chettiar and, second, of his father one Em.Ar. Ar.. Arunachalam Chettiar. These gentlemen will be" called “ theson ” and " the father ” in this opinion. •'> v 'V
:Tbe father and the son were members of a Hindu community knownas Natiukottai.Ch'ettiars who inhabit certain districts of Southern Indiaand were governed by the Mitakshara system of Hindu law in mattersrelating to inheritance succession, adoption, marriage and other matters.They were also coparcenary members of a joint Hindu family which
VISCOUNT SI.MONOS—The Attorney-General v. Arunctphalam Chettiar
51
had extensive trading and other interests in India, Ceylon, and other farEastern countries. Immediately before the 9th July, 1934, when theson died, he and the" father were the only living coparceners. The fatherthen became the sole surviving coparcener of the family. But therewere females also who, though they had not the rights of coparceners,yet had rights q£ residence in, and maintenance out of, the joint familyproperty and were in all respects members of the Hindu undivided familyof which the father and son were, coparceners. Moreover it wascompetent for the surviving widow of the son to adopt a son" who wouldthus becomes coparcener with the father and the father himself duringhis life and after his death his surviving widows had a similar powerof adoption. It is convenient to set out here a genealogical tree whichshows not only the members of the family but the manner in which thesepowers of adoption were exercised. :.'■
ARUNACHALAM CHETTIAR (No. 1).
Bamanathan Chettiar*' married twice ' –
(1) Umyal Achchy '. (dead) –
Somasundaram Chettiar;/ (died 1923). •
"(2) Sivogami Achchy ' "(alive in. 1943 ;-
; ■ no issue)- :
3 daughters –
AJamelua
Achchy
(1) Valami Achchy~ (dead) – ;
Arunachalam;..; 3 daughtersChettiar Jxrr.- >. s V _ -b. May 1901. f
d. 9.7.1934^.; -A'… J'-v
married twice ■.? V'- .£• A .
, Arunachalam .. r ; • •Chettiar Sr. (No. 2)*
b."4.1.1883 – •d. 23.2.1938 A-A’" Vmarried three times ' .
■(2) Letchiimi Achchy
(alive in 194S;)
'■ no issue; V . ‘
.. – adopted a soil
.■ ' (Arunachalam) "
(No. 4) . "Aon 17.6.45 ; …..
(3) Natchiar Achchy/(alive ini'1948married after Vftfjs-r ;.A?
■ 9.7.34 :z."- 3 j
daughter adopted ’'a' sonb. 22.12.37(Ranianathan)d. 25.1.39 on 17.0.45
.(1) Alomelu Achchy ,. (2) Umaiyal Achchy., . … ..
" V(dead) t (alive 1948;)A"
'*- i:• :-Xi ' adopted a son'^ ■.-A AA; –
.- i-» (Veerappan) on .. V '-'.A;"
-J-Av.-A;' – ‘ " '17.0.45V'V i
i V. The json, as" has been said/.^ed on the 9th. July, 1934.~^The fatherdied on the 23rd'February, 1938, f. jBoth of th'em )died_m India wherethey were domiciled.';.,:- .,Ca r A'• J.• -■ AiAA/A ” "i "A
r-vl-"T*-. i,"“–wf,."
Oh the 31st1 October," 1938," the Assessor *6f-Estate* J)uty,~ Colombo, '
; served on the administrators of the estate of theTlathej^'^h^tico ‘of >• -' Assessment that in respect of the estate of the: son'estate jiuty- payable. ’
^y^them' had been."assessed at a figure of. Rs. 223*493 ;7b.WTbis; ..Was. by amended;notices "reduced to Rs. 221,743.'.ITrom t^eAnoticVsjA> ii^is."clear that the'assessment was in respect of what was_descfibed as v"
52VISCOUNT SLUONDS—The Attorney-General v. Arunachalam Ghetliar
the “ Deceased’s half share ” of the assets of the business carried onby the family in Ceylon and of certain other assets. Objection wasduly taken to the assessment but was overruled by the Commissionerof Estate Duty. The matter was then appealed to the District Courtof Colombo. The learned District; Judge allowed the appeal andan appeal from his decision.by the present appellant, the Attornej–General of Ceylon, to the Supreme Court of Ceylon was dismissed.
At the date of the son’s* death estate'duty was imposed by the EstateDuty Ordinance No. 8 of 1919 which in all material respects was afaithful copy of the Finance Act, 1891, of the United Kingdom. Itwill be useful to set out the provisions of the Ordinance which are relevantto this appeal.
THE ESTATE DUTY ORDINANCE, No. 8 OF 1919.
2.—(1) In this Ordinance, unless, the context otherwise requires, the term—
“Estate duty’’ means the duty imposed tinder the provisions of . thisOrdinance in case of the death of any person dying on or after the commence-ment* of this Ordinance.•'
“Deceased” means any person dying on or after the commencement ofthis Ordinance.
* ‘e .**-
“ Property ” includes movable and immovable property of any kind situateor being in the Colony and the proceeds or sale thereof respectively, and anymoney or investment for the time being representing the proceeds of sale. . . .
“Property passing on the death” includes property passing either imme-diately on the death or after any interval, either certainly or contingently,and either originally or by way of substitutive limitation ; and the expression“ on the death ” includes “ at a time ascertainable only by reference to thedeath ”.i
(2) For the purposes of this Ordinance—
A person shall bo deemed competent to dispose of property if he hassuch an estate or interest therein or such general power as would, if he weresui juris, enable him to dispose of the property; and the expression'" generalpower ” includes every power or authority enabling the donee or other holder
• thereof to appoint or dispose of property as he thinks fit, whether exercis-able by instrument inter vivos or by will, or both, but exclusive of any powerexercisable in a fiduciary capacity under a disposition not made by himself.
* * * *
7. In the case of every person dying after the commencement of this Ordinance,there shall, save as hereinafter expressly provided, be levied and paid, upon thevalue of all property settled or not settled, which passes on the death of suchperson, a duty called “ estate duty ”, at the graduated.rates set forth in the Scheduleto this Ordinance…’
g.(j) Property passing on the death of the deceased shall be deemed to include
:ho property following, that is to say ;—'' •
(n) Property of which the deceased was at the time of his death competentto disposo. -.
Property in which the deceased or any other person had an interest .
ceasing on the death of the deceased to the extent to which a benefit accruesor arises by the cesser of such interest. ….
VTSCOUXT SIMOXDS—The Attorncy-Gaural v. Arun-ichatcnn Chettiar 03
17.—(0) The value of tho beneGt accruing or arising from the cesser oT un interestceasing on the death of tho deceased shall—
(a) If the interest extended to the whole income of tho property, bo thovalue of that property ,- and
(0) If the interest extended to less than tho whole income of the property,t>e such proportion of tho value of the property ns _ corresponds to the-proportion of the income which pnsses on the cesser of the interest. _
It- was and is claimed by the appellant that estate duty in respect ofthe son’s estate was exigible either under S. 7 of the Ordinance (which*corresponds with S. I of the Finance Act, 1 SOI) or under S. S (1) (a) or (b)(which reproduce part of S. 2 of the same Act).
It became necessary therefore to determine with as much precisionas the Subject matterperruittecl wliat was the nature of the son’s interestin the property in Ceylon of the Hindu undivided family of which heand the father were coparceners. This was a question of fact for theCourts of Ceylon and is toda}* a question of fact for their Lordships also,notwithstanding that frequent reference was made to decisions of thisBoard given at a ti/ne when Hindu law was within their cognizance.
Lx pert evidence was accordingly called and given at great length by 'distinguished Hindu lawyers, who, though they necessarily agreed. generally upon the material principles of the Mitakshara law, tookdifferent views upon certain aspects of that law. And it was upon thosedifferences that counsel for the appellant based his argument, relyingupon the evidence given by the learned Advocate General for Madrasbefore the District Judge. It was not seriously urged that this was aease in which their Lordships should regard the matter as concluded bythe fact that there were concurrent findings by the District Judge andthe Supreme Court as to the nature in Hindu law of the son’s interest.They have therefore felt at liberty, and indeed bound, to scrutinizethe evidence given by the witnesses together with the authoritativetext books and the case law upon which they relied. Nor did theyreject references in the present appeal to authorities which had not beenreferred to in evidence. But, having done so, they must expiess theopinion which as the case proceeded more and more forced itself uponthem, that the issue turned not upon the minor differences betweenthe expert lawyers but upon the possibility, whichever of them wasright, of bringing within the scope of a taxing Act couched in the languageof the 1919 Ordinance an interest which originated in a wholly differents}*stem of law*. The language of the Finance Act* may be appropriateto the law of Ceylon, but it is singular]}* inappropriate to the legalconcepts upon which the Hindu undivided family is based and .theirLordships would at the outset insist as a first principle of taxing law*that its language is not to be strained to an unnatural use in order toenlarge its„scope. This is particularly to be observed where the matterwhich is the subject of claim is well known and susceptible of clear 'definition and taxation by appropriate words.-
2*J. X. B 69514*(10/57)–’'–
54
VJSCOUXT SIMOXDS—TJy? Attorney-General v. Arunachalam Chettiar
It is in this context that the questions must be asked whether anvproperty passed upon the death of the son within the meaning of S. 7 ofthe Ordinance or whether, alternatively, he was “ competent to dispose ”of any property at the time of his death within S. 8 (1) (a) or whether therewas any property in which he had an interest ceasing on his death withinS. 8 (1) (6), an interest which falls to be measured by the extent to whicha benefit accrues or arises by its cesser, which benefit is in its turn valuedin accordance with the provisions of S. 17 (6) of the Ordinance.
"First, then, did any and what property “ pass ” on the death of theson ? An attempt was made at the hearing before their Lordships toargue that the whole of the property in Ceylon of the Hindu undividedfamily so “ passed ”, though a claim for estate duty in respect of onehalf only was made. Their Lordships considered this argument to beinadmissible in view of the assessment that had been made, and thecourse that the proceedings had so far taken. Counsel was thereforelimited to the argument that the son’s share in that property ci passed ”and that that share was one-half..
It appears to their Lordships that this contention is refuted by themost elcmentaiy consideration of the Mitakshara law. The learnedDistrict Judge observed that “ to. describe the deceased as a coparcenerin relation to the joint property is but to adopt a convenient termin the process of attempting to analj'se a legal concept which has noprecise equivalent in this country”. And he added, “ the problembefore us cannot satisfactorily be solved by the mere selection – ofappropriate words”. But, whatever else may be said of a coparcener,it is clear that it would be a misuse of language to saj' that he had a“ lifilf share ” or any “ share ” of the family property. The numerouspassages to which' their Lordships were referred in Mulla’s Principlesof Hindu Law and Mayne’s Hindu Law and Usage illustrate and expandthe statement made by Lord Westbury in delivering the opinion ofthis Board in 11 Moore’s I.A. 75 at p. 89, “ According to the true notionof an undivided family in Hindu Law, no individual member of thatfamily whilst it remains undivided can predicate of the joint andundivided property, that he, that particular member has a certain-definite share A little earlier in 9 Moore’s I.A. 539, at p. 611, Lord-Justice Turner had referred to the property as “ the common property of aunited family”’. “ There is,” he said, “ community of interest andunity of possession between all the (: coparceners ’) members of thefamily and upon the death of an}1' one of them, the others may welltake by survivorship that in which they had during the deceased'slifetime a common interest and a common possession.”
These two passages, capable as they may be of qualification andrefinement, state the essential nature of a coparcener’s interest. It istrue that he lias other rights which appear to enlarge that interest.He can separate from the family and ask for partition of the faxnilyproperty : he can in certain circumstances alienate his interest (a laterand not universal development of the Mitakshara law) and, if he doesso, the Court will, if necessary, protect the alienee's rights by decreeing
"ISCOl'XT*SDtOXDS—The .-Utor,e‘j-General v. Arunachalam CheUiar53
-the 2>artitioa for which lie might himself have asked. So also the Courtmay intervene for the benefit of an execution creditor. These incidents-aive colour to the view that a coparcener has what may be called a•“ share ”. But against them may bo set the fact that the disposition ofthe income of the family'property is in the discretion of the Ivarta, usuallythe senior male member of the family, whose right and duty it is tomaintain out of it not only the coparceners but also the female members•of the family, the wives, widows and unmarried daughters of living ordead coparceners, ancl further to devote such money as may be necessaryfor such family .purposes as the education, marriage, and religious-ceremonies of the coparceners and of the members of their respectivefamilies (see Mulla Sec. 237). To say that in such circumstances acoparcener has a “ share 13 of the property which “ passes ” on hisdeath is in their .Lordships' opinion a clear misuse of language. Xordoes it help to say' that the property is “vested ” in or “owned ” by'(if “'vest” and “own” are legitimate words to use) the coparcenersfor the time being rather than by all the members of the undivided family.It appears to their Lordships unnecessary to examine further this aspectof the claim, and the less so because they do not dissent from the views■expressed by the.District Judge and 3Ir. Justice Gratiaen in their carefuland exhaustive judgments.
Section 7 failing him, the appellant turns to section S (1) (a) and■contends that the son was at or immediately before his death “ competentto dispose ” of a share—again a half-share—of the Ceylon property ofthe undivided family : therefore the property passing on his deathmust be deemed to include that half share.
This contention was based primarily on the consideration that the:Son could at any time during his lifetime have obtained his share of■the family property by partition. Having first communicated his•intention to separate from the family, he could then have obtainedhis share either byr agreement or in the absence of agreement by going■to the Court and getting a decree. It was a complementary contentionthat he could by alienating or purporting to alienate his ‘ share 5 forvalue place his alienee in a jjosition in which the Court would decreein favour of the latter the same partition that it would have granted-to him. Thus indirectly at one or two removes, it was said, one half _-of the Ceylon property could have been disposed of by' the son in hislifetime. In support of this argument reference was made to English•cases, such as re Penrose 1 and re Parsons The correctness of thesedecisions is'not in issue but it seems to their Lordships that they throwno light upon the question, though the argument illustrates the danger■of trying to apply' the principles of English law to the esoteric doctrines-of the Hindu undivided family. There are other answers to the conten-tion, but, leaving them aside for the moment, why should it be assumedthat- the son would take the. necessary preliminary step of separating .from his family, a step which for economic, sentimental and traditional .treasons might be utterly repugnant to him ? It would be little les3•than absurd to stretch “ competency to dispose ” to such an extremity.
1 11933} Ch. 793.'- 11943} Cli. 12.'
56VISCOUNT SIM ONUS—The Attorney-General v. Arunae/iafam Chcttiar
Moreover, if, and so far as " competency to dispose ” rests upon a rightto obtain .partition, it must be remembered that both son and father-were domiciled in India and that the family property included interestsnot only in Ceylon but in India and other parts of Asia. Their Lordshipshave no right to assume in favour of the appellant that, if there had'been a partition by agreement or decree, any part of the property in -Ceylon would have fallen to the share of the son. Learned Counselfor the appellant tried to meet this difficulty by saying that, if therewas a partition, at least the Ceylon property would have fallen to some-one’s share, but this did not appear to their Lordships to be equivalentto saying that the son had been competent to dispose of it. The sameconsiderations apply to the contention that the son was competentto dispose of one half of the Ceylon property because he might havealienated for va'lue and his alienee might have applied to the Court (to-use a phrase sometimes used in this connection) “ to work out. theequities " in his favour. Such a process leaves the son at a long distancefrom competency to dispose of any particular part of the family property.
Finally section S (1) (b) of the Ordinance was invoked. Duty is-exigible under this subsection in respect of property (a) in which theson had an interest ceasing on his death, (b) tq the extent to which a-benefit accrues or arises by the cesser of such interest, the value of thatbenefit being measured in accordance with the provisions of S. 17 (6)-of the Ordinance, that is to say, if the interest extended to the wholeincome of that property, being the value of that property, or if it extendedto less than the whole income of the property, being the .corresponding’proportion of the value of the property.
It is clear then that two elements must coincide. There must be notonly a cesser of interest in property : there must be also a benefit arisingby such cesser. And further the benefit must be capable of valuation bj-reference to the income of the property which the deceased had enjoyed.The brief exposition already given of the law of the Hindu undividedfamilj' is sufficient to show how inept is the language of the Ordinance-to embrace the case of the death of a coparcener. Their Lordships areso fully in agreement with what was said by Mr. Justice Gratiaen in- -the Supreme Court that they quote and adopt his words “ He [thedeceased] merely had a right to be maintained by the Karta out ofthe common fund to an extent which was at the Karta’s absolute-discretion : in addition, he could, if excluded entirely from the benefits-of joint enjoyment have taken appropriate proceedings against theKarta to ensure a recognition of his future maintenance rights and also-to obtain compensation for his earlier exclusion. I find it impossible-to conceive of a basis of valuation which in relation to such an ‘ interest ’would conform to the scheme prescribed by S. 17 (6). Xor do I thinkthat upon a cesser of that so-called * interest ’ a ‘ benefit ’ of any value-can be said to have accrued to the surviving ‘ coparcener ’ when thedeceased’s ‘ interest ’ lapsed ’’-1 This reasoning appears to their Lord-ships to be cogent and conclusive. Counsel for the appellant soughta wav of escape by urging that- at least the surviving coparcener must.
i (1363) 66 y.L.R. 131, 193-134..
VJSC'OUNT SI.MOXDS—The Attorney-General v. Ant neigh a lam Chetliar -57
"benefit by the fact that the deceased could uo longer claim partitionof the family estate. That might or might not be an advantage tohim, but the short answer is that it is not a benefit susceptible of valuationin the only way which the Ordinance prescribes.'
In the result the claim to duty cannot be upheld either under S. 7 orS. S (1) (a) or (6). Subsidiary questions were raised with which it isnot necessary to deal. If their Lordships had taken a different viewon the main question, it would have been necessary to consider thelocal situation of certain so-called Mysore Bonds. It need not now be-discussed. Nor is it necessary to consider whether, as was urged bythe respondents, they were not liable to pay the duty upon the son'sdeath, even if it was otherwise exigible. Upon this question theirLordships express no opinion. Finally a submission was made inregard to immovable property in Ceylon, in which reliance was placedon section 18 of the Partition Ordinance No. 10 of 1S63 and section 7of the Wills Ordinance No. 21 of 1S44. This matter does not appearto have been raised in the Court of the District Judge. In the SupremeCourt it was dealt with summarily by Mr. Justice Gratiaen and theirLordships concur in the view that he expressed.
Their Lordships will humbly advise Her Majesty that this appeal■.should be dismissed. The appellant will pay the costs of the appeal.
Appeal dismissed.
[The following judgment was delivered in Appeal No. 17 :—j .
-July 10, 1957. [Delivered by Viscount Simonjds]—
Their Lordships have in their opinion in the preceding appeal No. 16of 1955 stated the facts which are relevant to this appeal also and madesome references to the relevant law. The}' do not repeat them here. .
The question which arises in this appeal is whether an assessmentmade by the Commissioner of Estate Duty under the Estate DutyOrdinance No. 1 of 1938 in respect of the estate of one Rm. Ar. Ar. Rm.Arunachalam Chettiar can be upheld. This gentleman, who died onthe. 23rd February, 193S, shortly after the 193S Ordinance camo intooperation, was in the previous, and will in this, opinion be called thefather. The learned District Judge upheld the assessment but his-decision was reversed by the Supreme Court of Ceylon. Hence thisappeal by the Attorney General for Ceylon..
The 1938 Ordinance introduced a new provision in regard to Hindu^undivided families. By S. 73 (in its unamended form) it. provided asfollows : “ Where a member of a Hindu undivided family dies no estate
5S
VISCOUNT SIMONDS—-The Attorney-General v. Arunachalam Chcltiar
duty shall be payable on any property proved to the satisfaction orthe Commissioner to be the joint property of that Hindu undivided,family■•
The father, as appears from the facts stated in the previous opinion,._ became upon the death of his son in 1934 the sole surviving coparcener*of a Hindu undivided family to which also a number of females belonged.
. Ho other coparcener came into existence- during his lifetime, but at allmaterial times there subsisted a power of adoption in his son’s widow,a member of the family, and after his own death a similar power in hiswidows. These powers were in fact exercised after his death as appears-from the table which is incorporated in the previous opinion. Moreover,,at all material times the female members of the family'had the right ofmaintenance' and other rights which belong to female members of a'.Hindu undivided family.
The question then is a narrow one of construction, whether (a) the-father was at his death a member of a Hindu iindivided family and(6) the property of which he was the sole coparcener was the property*of that Hindu undivided family. Upon (a) no doubt arises : it is conceded,that he was a member of a Hindu undivided family. It must be-observed that it was the same undivided family of which the son when-alive was a member and of which the continuity was preser%*ed after-the father’s death by the adoptions that have been mentioned. For-his death did not put an end to the famity line. Mr. Justice Gratiaen,.in his judgment in the Supreme Court, quotes the language of this Foard:
– in two cases which appear to be apt to the present appeal. In A.I.R..1918, P.C. 192, it was said : “ Hindu lawyers do not regard the male-line to be extinct or a Hindu to have died without male issue untilthe death of his widow renders the continuation of the line of adoptionimpossible”, and in A.I.R. 1943, P.C. 198, it was said:A Hindu
undivided family cannot be brought finally to an end while it ispossible in nature and in law to add a male member to it ”. These-and similar quotations which might be multiplied supply the contextin which the second part of the question must be considered, viz., whether,,while the undivided family thus persists, the property in the hands-(to use a neutral expression) of a single coparcener can property bedescribed as the “ joint property of ” that family.
The nature of the interest of a single surviving coparcener was the-subject of exhaustive evidence bjT expert witnesses and their Lordshipswere referred to and studied numerous authorities in which in referenceto his interest language was used not incompatible with his beingregarded as the “ owner ” of the family property. But though it may becorrect to speak of him as the “ owner ”, yet it is still correct to describe-that which ho owns as the joint family property. For his ownership-is such that upon the adoption of a son it assumes a different quality' rit is such too that female members of the family (whose numbers may-increase) have a right to maintenance out of it and in some circumstances-to a charge for maintenance upon it-. And these are incidents which.
VISCOUNT SIMOXDS—The Attorney-General c. Arunaehatam Cheltiar ;'i0
arise, notwithstanding his so-called.ownership, just because the projiertyhas been and has not ceased to be joint family -property. Once againtheir Lordships quote from the judgment of Mr. Justice Gratiaen •:** To iny mind it would make a mockery of the undivided famity sj-stemif this temporary reduction of the coparcenary unit to a single individualwere to convert what was previously joint property belonging to anundivided family into the separate property of the surviving coparcener ” kTo this it may be added that it Mould not appear reasonable to impartto the Legislature the intention to discriminate so long as the familyitself subsists between property in the hands of a single coparcener andthat in the hands of two or more coparceners. It v as urged that alreadythe difference is there since a single coparcener can alienate the propertyin a manner not open to one of several coparceners. The extent towhich he can alienate, so as to bind a subsequently adopted son was amatter of much debate. But it appears to their Lordships to be anirrelevant consideration. Let it be assumed that his power of alienationis unassailable: that means no more than that he has in the circumstancesthe power to alienate joint family property. That is what it is untilhe alienates it, and, if he does not alienate it, that is what it remains.The fatal flaw in the argument of the appellant appeared to be that,having labelled the surviving coparcener " owner ”, he then attributedto his ownership such a congeries of rights that the property couldno longer be called “ joint family property”. The family, a, bodyfluctuating in numbers and comprised of male and female members,may equally well be said to be owners of the property but owners whoseownership is qualified by the powers of the coparceners. There is infact nothing to be gained by the use of the word " owner ” in thisconnection. It is only by analysing the nature of the rights of themembers of the undivided family, both those in being and those yetto be born, that it can be determined whether the family property canproperly be described as “ joint property ” of the undivided family.Judging by that test their Lordships have no doubt that the SupremeCourt came to the right conclusion.
Had their Lordships taken a different view from that of the SupremeCourt it might have been necessary to review^ some at least of the largenumber of cases cited at the Bar, from which chosen passages aj>peareclto favour the contentions of the appellant. But, as was said in the caseof the previous appe£d> the matters upon which the parties and theirexpert witnesses were agreed were of far greater significance than thoseupon which they differed, and their Lordships doubt whether, even •if the appellant’s evidence stood alone, they could have come to anydifferent conclusion as to the meaning and scope of the words “ jointproperty of that Hindu undivided family ” as used in the 1938 Ordinance.
Their Lordships will humbly advise Her Majesty that-this appealshould be dismissed. The appellant will pay the costs of the appeal.
-O.
— ".’-f
Appeal dismissed.
2{1953) 56 2v. L. Jl. 49C, 501.'