HARDAYAL HARDY, J.

( 1 ) THE question arising for decision in this Income-tax reference under Section 256 (1) of the Income-tax Act, 1961 is a pure question of Hindu Law which has arisen in a case under the Income-tax Act. The question relates to the right of a female Hindu who although she is a member of the Hindu undivided family, is none-the-less not a co-parcener. She wants to blend her property with the co-parcenary property of the joint family. Can she do so by a mere declaration made by her in that behalf ? The Income tax Appellate Tribunal has taken the view that she can while the contention raised by the Revenue is that she cannot. That is the controversy in this case.

( 2 ) THE question referred to us deals with what point and is worded :-

"whether on the facts and in the circumstances of the case, the Tribunal rightly held that the income of Rs. 21,544. 00 was not the individual income of the assessee Shrimati Pushpa Devi, but was the income of her Hindu undivided family ?"

( 3 ) THE facts are not in dispute and may be stated as follows :- Shrimati Pushpa Devi, an individual, is the assessee. The statement of the case rdlates to the assessment year 1963-64. The previous year ended on 31-3-1963.

( 4 ) THE assessee is a member of the Hindu undivided family consisting of her husband Kanwal Narain Khanna, he r father-in-law, Gur Narain Khanna, her mother-in-law, Kando Dcvi and her minor son Ravi Narain Khanna and her three daughters Rajni, Rama and Madhu, The assessee in her individual capacity and with the aid of her personal funds entered into a partnership with her father-in-law. Gurnarain Khanna, on 19-6-1958, in the name and style of Gurnarain Jagat Narain and Co. Her minor son Ravi Narain had been admitted to the benefits of this partnership. Each of them had l/3rd share in the assessee and Gurnarain had equal share in the loss, if any.

( 5 ) THE aforesaid firm owned and ran two cinema theatres, one known as Nishat Talkies at Kanpur and the other known as Novelty Talkies at Lucknow. Separate water-tight accounts were being kept in respect of these two businesses. Separate profit and loss accounts were drawn up, which were consolidated while filing the income return. On 1-9-1961 the assessee made a swom declaration. In the first clause of the said declaration, she has referred to her share in the profit and loss of the firm of Gurnarain Jagat Narain and Company. In the second clause, she has stated that total capital of Rs. 67,284. 57 made up of a sum of Rs. 16,666. 67 standing in her capital account and Rs. 50,617. 90 standing in her current account, stood to her credit in the books of Nishat Talkies, Kanpur, on 1-9-1967. After mentioning in clause 3 of the said deed that she was the sole and absolute owner of the said amount and had her share in the Nishat Talkies. In clause 4 she has declared her intention to treat her capital and the share in the business of Nishat Talkies, Kanpur, as the joint family property of her Hindu undivided family. Clause 5 reiterated the said intention. Clause 6, is also more or less a repetition of the same intention where it has been clarified that she has abandoned for ever her interest and her separate ownership claim on the said share capital investment of Rs. 67,284. 57 and the said -/5/4 share in the net profits and Rs.-/8. 00 share in the net losses in the business of Nishat Talkies. Kanpur; in favour of the said Hindu joint family to be wholly, exclusively, solely and fully owned, enjoyed and possessed by it,

( 6 ) ACCORDING to clause 4, she voluntarily and without any hesitation or reservation, threw the said capital and shares into the stock of hotch-potch of the Hindu joint family of "gurnarain Khanna and Sons" consisting for the time being of :-

1. Lala Gurnarain Khanna aged 62 years Karta/coparcener and also a memljer; 2. Smt. Kando Devi, my mother-in-law aged 60 years, member. 3. Shri Kanwal Narain Khanna, my husband aged 42. years, a coparcener member. 4. Myself aged 37

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