(Prayer: Case (disposed of on 7-12-1949) referred to the High Court by the Income-tax Appellate Tribunal, under S. 66(1) of the Income-tax Act, XI of 1922, as amended by S. 92 of the Income-tax Amendment Act, VII of 1939, in 66 R.A. 109 Madras of 1946-1947 on its file.)

Satyanarayana Rao, J. :The only question that has been referred to us by the Appellate Tribunal under S. 66(1) of the Act is whether in the circumstances of the case, the Tribunal was correct in law in holding that the partnership deed cannot be registered.

One V.M. Narayanaswami Mudaliar carried on business in handloom cloth and piece goods. In respect of this business, he was assessed as the Kariha of an undivided Hindu family upto the assessment year 1941-1942. In 1942 he died leaving six minor sons and a widow. During the assessment years 1942-1943 and 1943-1944, the income was assessed on the basis of the income of an undivided Hindu family represented by the widow Radha Ammal The assessment year with which we are now concerned is the year 1944-1945 and the accounting year is the year ending 16th November, 1943. During the accounting year the widow entered into two partnerships in respect of the two heads of business with two different persons. One was with one Arumugha Mudaliar who was an old clerk of the firm and concerned the handloom business. In respect of piece goods business she entered into partnership with one Govindaraja Mudaliar. We are now concerned only with the partnership relating to handloom business. This deed was presented for registration before the Income-tax authorities under S. 26(a) of the Act. Under this document the widow agreed to treat Arumugha Mudaliar as a partner and she purported to act as guardian of the six minor sons. The registration of the deed was refused by the Income-tax Officer and the appeals against that order also shared the same fate.

On this reference it was argued that the view of the Appellate Tribunal that the deed could not be registered as it was not a valid deed is not correct. It was claimed on behalf of the assessed that the widow could validly represent the minors as Kartha of the family and the learned Advocate for the assessed was driven to this position as he could not argue that the mother as guardian could validly enter into a partnership with a stranger on behalf of her minor sons. This representative capacity as Kartha of the family, it was claimed, is to be inferred under the provisions of the Hindu Womens Rights to Property Act (XVIII of 1937). Under the Act the widow of a deceased co-larcener is entitled on the death of her husband to the same interest in the joint Hindu family property as the husband himself had. But the interest so devolving on the Hindu widow, under the provisions of the Act is limited to an interest known and described under Hindu law as a Hindu womans estate. She was, however, given a power or right to claim partition of the family properties and to get her share allotted in the same manner as a male owner. These new rights which have been created under the Act, it is urged, have effect of elevating the status of the widow and have the force of converting her status into that of a coparcener to enable her to acquire a representative capacity as a Kartha or managing member of the family. In my opinion, this view proceeds on an entire misconception of the position of a manager under the Hindu law and upon a wrong inference from the effect produced by the Act on the rights of the widow. The right to manager ship under Hindu law is conferred as a general rule on the father as the head of a joint family, if alive, and if he died, the right devolved upon the senior member of the family. The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was of a coparcener of the joint family. If a person is not a member of the coparcenaries and is outside it, he has no right to claim the manager ship of the family and to claim a representative capacity on behalf of the other coparceners with reference to the dealings relating to the property of the family. Further, the right is confined to the male members of the family as the female members were not treated as coparceners though they may be members of the joint family. The effect of the Act is merely to confer upon the widow an interest in the share of the husband and the estate created in that interest is that interest of a Hindu widow. She is also entitled to claim partition of the properties but all these rights either individually or cumulatively do not have the effect of conferring upon the widow the status of a coparcener in the family. Nor do they clothe her with a right to represent the other members of the family as Kartha of a joint Hindu family. The contention, therefore, that by some process she was clothed with a representative capacity so as to enable her to bind the minor members by a transaction of this nature cannot be sustained and has no basis either under the Act or under Hindu law.

Reliance, however, was placed by the learned Advocate for the assessed on a decision of the Nagpur High Court in Commissioner of Income-tax v. Lakshminarayna Raghunath Das (16 I.T.R. 313) which undoubtedly supports his contention. The view of the learned Judges, if I may say so with respect, is not based upon what the law is now as recognized by the texts and the decisions but what they considered the law should be. The judgment, in my opinion, makes out a plea for reform of the Hindu law in the manner indicated by the learned Judges but I am unable with respect to agree that-under the Hindu law a woman who acquired rights under the Hindu Womens Rights to Property Act is clothed with the manager ship of the joint family by reason of guch devolution of the property. I do not join in the condemnation of the Sanskrit texts as the learned Judges in that case did and dub them as containing archaic views. Nor do 1 agree with the view that progress consists in altering the ideals that have been embodied in the Hindu law texts which contain not only the law of Vyavahara but also contain the dharma which term is used in a generic sense so as to cover the whole field of the activity of a man. It may be that we, who are born in an age of conflict of ideals might consider that the Hindu law texts have imposed shackles which must be thrown away and that we must take leave of the injunctions of those sacred writings. It is after all the ideal which one chooses as the correct one that guides the path of his progress. It is unnecessary to pursue the matter further. It is sufficient to observe that however laudable it may be to raise the status of a woman so as to make her the kartha of a joint family, the law has not yet done it and until this is done, the law as it now exists must be applied and administered. For these reasons, I am unable to accept the interpretation placed by the Nagpur High Court on the Hindu Womens Rights to Property Act.

The result is the view of the Appellate Tribunal is correct and the question referred to us must be answered in the affirmative. The assessed must pay the costs of the Income-tax Commissioner which we fix at Rs. 250.

Viswanatha Sastri, J. I agree with my learned brother. Were it not for the fact that the learned Advocate for the assessed is supported by a decision of the Nagpur High Court in Commissioner of Income-tax v. Lashminarayana Raghunath Das (16 I.T.R. 313), I should have considered that his contention was unarguable. If we are asked to take our stand on the Hindu law as it has been laid down by Hindu legists and by judicial decisions of authority we know where we are. If we are asked to decide questions of Hindu law according to our own notions of how it should be developed according to the needs of modern civilization or a progressive society we are invited to wander, I know not where. There is no doubt or difficulty about ascertaining the rules of what may be called the Hindu common law or the Rules of statute law applicable to the case. These matters are too well settled at this time of the day to admit of any doubt or difficulty; and in my judgment there is no warrant for arbitrarily discarding such of these rules, as in our individual judgment we think are retrogressive. An alteration of a well settled rule of Hindu law is a task for the legislature and not for judicial legislation. So far as the Hindu law is concerned, it is clear that if a father dies leaving his sons and his widow him surviving, and the family chooses to continue united after his death, the eldest son would be the natural head and manager of the joint Hindu family. This is supported by texts ranging from the days of Narada who said that on the death of the father of a family, the eldest brother should support his brothers and the other members of the family, just as the father himself did. If, however, the eldest brother was for any reason physically or mentally unfit to take upon himself the management of the joint family then the next younger brother who was found competent and capable was to take charge of the family affairs. In addition to age and seniority an element of ability also was recognized by ancient law givers as qualifications for the manager, ship of a joint Hindu family. It is unnecessary to consider the evolution of the rights of women to inherit property under the Hindu law. According to the Mitakshara, a widow could never inherit unless her husband had been a sole or a separate owner of the property. This was due to the nature of his interest in the property. So long as the family was undivided he had not any definite share in the property but only a right to obtain a share at a partition and if he died without exercising that right his interest lapsed or merged in the interests of the other members of the family and went to enlarge the share or interest of the survivors. The widow was no doubt recognized as a member of the joint Hindu family but her right was a right of maintenance from and out of the joint family estate. The Hindu Womens Rights to Property Act (XVIII of 1937) made a departure from the Hindu law as laid down by the texts and declared by judicial decisions. The manager ship of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Co-parcenership is a necessary qualification for manager ship of a joint Hindu family. Act XVIII of 1937 gives the widow of a coparcener a limited interest in the share which inhered in him at the time of his death. It applies both to cases where her husband and his sons alone formed a coparcenaries and to cases where the husband was a coparcener in a larger joint family and died leaving either his widow and male issue or his widow only, him surviving. The interest devolving on the widow is a Hindu womans estate with the limitations and qualifications imposed by Hindu law on such an estate. Even in the case of a Mitakshara family the widow notwithstanding the rights conferred on her by Act XVIII of 1937 cannot be treated as a coparcener along with the sons or the other coparceners though as I have already said she would be a member of the joint family. A widow who takes her husbands estate under Act XVIII of 1937 gets it only by inheritance according to the rule prescribed by statute and not by survivorship. She had no right by birth and she was not a coparcener prior to the death of her husband. She does not, in my opinion, become a coparcener by the death of her husband and the Act does not use apt language to convert the interest which devolves upon her into an interest of a coparcener. It is specifically declared that the interest which she takes is only a Hindu womans estate and that means, that on her death, it could devolve on her husbands heirs who would take it as an ancestral property. The interposition of her limited interest does not make her a coparcener and cannot clothe her with the manager ship of the joint family in case she happened to be the eldest member of the family. It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family even though she has adult sons who are entitled as coparceners to the absolute ownership of the property could be the manager of the family. The Act does not effect a statutory severance or disruption of the joint family, nor does it create a new type of manager ship of the joint family unknown to Hindu law and unwarranted by judicial decisions. To interpret the Act as having such a result would cut across the recognized principles of Hindu law and would not make for a rational or logical application of Hindu law to cases where the rights of coparceners are concerned. The learned Judges of the Nagpur High Court state that the widow would be the manager of the joint Hindu family if her sons happened to be minors at the time of the death of her husband. She would be the guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a coparcener. If she were the manager then she should continue to be the manager for her life notwithstanding her sons attainment of majority. It is ages since Hindu Society, excepting certain communities, ceased to be matriarchal. I therefore think that the decision in Commissioner of Income-tax v. Lakshminarayan Raghunath Das (16 I.T.R. 313)is, with all deference to the learned Judges, an unwarranted extension of well settled principles of Hindu law and I am unable to follow it. I therefore agree with my learned brother in the answer which he has given to this reference and in the direction for costs.