In order to claim exemption under Sec. 14(1) of the Income-tax Act, 1922, in the case of an impartible estate, the sum must have been paid out of "the income of the holder of the estate belonging to the family."

1. This is a reference under Sec. 66(1), Income-tax Act, and the question, which has been referred la this:

"Whether the sum of Rs. 9,000.00 received by the assessee is exempt under Sec.14 (1), Income-tax Act".

The facts as found are the following. Raja Durga Prasad Singh was the holder of an impartible estate, known, as the Jharia Raj Estate. He died on 7-3-1916, leaving three widows. On his death, his next of kin Raia Shiva Prasad Singh, took possession of all the properties left by him. There was a protracted litigation over the inheritance between the widows and Shiva Pra-sad Singh. The widows claimed the properties by right of inheritance on the ground that the family of the late Raja had ceased to be a Joint family and the properties left by him were his separate properties. Raja Shiva Prasad Singh, on the other hand contended that the family continued to be an undivided joint family, and that on the death of Raja Durga Prasad Singh, he got the estate and the properties by right of survivorship and the custom of lineal primogeniture. The litigation went up to the Privy Council. The final result of the litigation was that the family was held to be joint and Raja Shiva Prasad Singh was held to be entitled to hold the estate and properties of the Jharia Raj. One of of the terms of the decree which was passed was:

"It is declared that each of the Plaintiff (meaning thereby the two widows and the legal representatives of the third widow who had died in the meantime) is from 19-6-1933, entitled to a maintentnce allowance of Rs. 750.00 per month from the defendant, and it is further ordered and decreed that such maintenance allowance do form a charge on the impartible estate."

2. The assessee, Rani Hem Kuinari Debi, was one of the widows of Raja Durga Prasad Singh. For the assessment year 1948-49, which is the assessment year in queStion in the present case, she filed a blank return declaring that the income she received at Rs. 7507- per month, in the assessment year, being her (maintenance allowance, was not taxable. It appears that the payments of maintenance allowance, made by Raja Shiva Prasad Singh to the Ranis under the terms of the decree referred to above, were deducted in arriving at his total income up to the 1936-37 assessment. The income tax authorities refused to allow such deduction in computing the income of the flaja for the assessment year 1937-38. Thereupon the Raja brought the matter up to this Court, and in,-- Shiva Prasad Singh V/s. Commr. of Income-tax B and O. AIR 1942 Pat 456 (A), this Court held that the amount, which the Raja paid as maintenance allowance to the widows 171 the year of assessment there in question, was an allocation of a sum out of his revenue before it became income in his hands, and, therefore, the Raja was not liable to pay tax on the said sum.

3. Following the decisions of the Department in the past for the assessment years 1944-45 to 1946-47, the Income-tax Officer held that the total amount of Rs. 9,0007- was assessable as the income .of the present aseessee. The assessee appealed to the Appellate Assistant Commissioner and the latter confirmed the assessment on the basis of the assessments made for the years 1944-45 to 1946-47. For the assessment years 1940-41 to 1946-47 and also for 1947-48 the assessee had appealed to the Income Tax Appellate Tribunal against the inclusion of the maintenance allowance in her assessments. The Tribunal upheld the assessees contention for those years. The assessee again appealed to the Income Tax Appellate Tribunal for the assessment made in 1948-49 and claimed that the sum of Rs. 9,0007- received by her was exempt from taxation under Sec.14 (1), Income-tax Act. This time there was a difference of opinion between the two members of the Tribunal. The Judicial Member held that the appeal of the assessee should be allowed, while the Accountant Member held that the appeal should be dismissed The appeal was referred to the President of the Trib