KALWA DEVADATTAM AND TWO OTHERS versus THE UNION OF INDIA AND OTHERS

Citation: [1964] 3 S.C.R. 191 · Decided: 19-04-1963 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

:i s.c.R. 
SUPREME COURT REPORTS 
191 
KALWA DEVADATTAM AND TWO OTHERS 
v. 
THE UNION OF INDIA AND OTHERS 
(A. K. 
SARKAR, 
M. HrnAYATULLAH 
and J. c. SHAH JJ.) 
I11oome.Taz-AssesB111e11t-Oivil Court 
deba"erl 
from 
utting aside or modifying assessment-Effect of partition on 
payment of Income-tax-Mere 
execution 
or registration of 
partition deed not decisive-Question of onus-Gode of Oiwil 
Procedure, 1908 (Ar.I V of 1908).-lndian Income-Tax Act, 
1922 (11 of 1922), ss. 25·A, 67. 
Nagappa and his sons who formed a joint family carri•d 
on business and they were assessed to income-tax and super-tax 
by the Income-tax authorities. As Nagappa did not pay the 
tax assessed, 51 
items of immovable property belonging to 
the joint family were attached and 38 items were actually sold 
A •uit wa• filed by the •ons of Nagappa claimin~ a decree 
declarin~ that the assessment orders were unenforceable against 
the property attached and the sale of the property bv the 
revenue authotities was without jurisdiction, void and illegal 
and an order restraining the Union of India and the authorities 
of the State of Madra< from selling the scheduled properties 
or confirming the sales already held. The plaintiffs contended 
that the items 46 to 51 did not belong t<> the joint family at 
all as these were acquired by them with funds provided by 
their m~ternal gran.i-mother and the remaining itemi of 
property were not liable to be attached and sold as those 
had been allotted to them on a partition of the joint familv 
estate on M.uch 14, 1947, before the order of a.sessment 
was made by the Income-tax a:1thoritles. 
The contention of the Union of India was that the 
plaintiffs were not entitled to question the correctness of the 
assessment of tax in a Civil Court because the jurisdi.:::tinn of 
the court was excluded by s. 67 of the Indian Income-tax Act, 
that the plaintiffs were precluded from setting up the plea 
of partition between them and their father as their defence 
to the enforcement of liability for the payment of tax in view 
of the provisions ofs. 25-A (3), that the partition was sham 
and not intended to be operative and items 46 to 51 were not 
_ J 
the separate estate of the plaintifli. 
1963 
Af;ril 19 
1963 
Ealwa D1varfattam 
v. 
Union of India 
192 SUPREME COURT REPORTS [1964] VOL. 
In another case, the High Court passed 
c-n March 5, 
1947, a decree for Rs. 10.000/· against Nagappa and in favour 
ofKumaji Sare Mal. On March 14, 1947, a deed of partition 
was executed by which the joint family estate of Nagappa 
and his s~ns was divided and separate shares were given to 
Nagappa and his sons. Kumaji 
got 
certain· properties 
attached in execution proceedings. A suit was filed by the 
sons of Nagappa claiming that the debt incurred by Nagappa 
being Avyavaharika, the plaintiff• were not liable to satisfy 
the debt and Kum a j i was not competent to bring to sale in 
execution of the decree obtained against 
Na~appa in hi• 
individual capacity, the interest of the plaintiff• in the joint 
family property after the joint family status was •evered and 
the properties of the families were partitioned. 
Bel& that 
both the suits of the appellants must be 
dismissed. The suit against the Union of India must fail 
on three independent grounds. The suit 
which was in 
substance one for setting aside 
an assessment was 
in 
law not maintainable because of s. 67 of the Indian Income-
tax Act, 1922. In the absence of an order under s. 2 i-A ( 1), 
the assessment of the Hindu joint family was properlv made. 
Even if an order recordin~ p>rtition wa1 made, the liability 
of the plaintiff, to p1y income· tax 
assesied on the family 
could still be enforced against them jointly and severally under 
s. 25-A (2) proviso. 
lJnder s. 25-A of the Income-tax· Act, if at the date 
when the liability to pay tax arose there was in existence a 
joint family, the tax will still be assessed on the joint family 
notwithstanding its disruption after the crucial date, The 
machinery for rer overy of the tax differs according as an order 
regarding partition is made or not made. If the Income-tax 
Officer is satisfied that the joint family 
property has, since 
the close of the year of accJunt, been partitioned among the 
various members or groups, or rh~rnbers in definite portions) he 
must record an order to that effect and thereupon each member 
or group of members is liable, in addition to any income~tax 
for which he is separately lia

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