The income of a member of a joint family would be a separate property if it has been obtained by his own exertions and without any detriment to the fathers estate, that is, without the aid of joint family property; it would be a joint family income if earned at the expense of the joint family funds.

S.K.Kapur, J.

1. Though the Income-tax Reference No. 11-D of 1964 raises a common question with some other Income-tax References being Nos. 9-D, 10-D of 1964 and Nos. 31-D and 35-D of 1963, yet we are dealing only with the, Income-tax Reference No. 11-D of 1964 leaving it to the Division Bench to deal with other references in the light of the decision given by the Full Bench in this reference.

2. The question referred to the Full Bench is whether on the facts already stated by us the allowance paid to Shri Prem Nath by Messrs. K. C. Raj and Company is to be treated as his individual income or the income of the Hindu undivided family of which he is the Karta ?" but for avoiding unnecessary delay in the matter, the learned counsel for the parties-agree that we should answer the question as referred to this Court by the Income-tax Appellate Tribunal, namely, "whether the remuneration received by Prem Nath, Karta of the assessee Hindu undivided family for services rendered to the firm of Messrs. K. C. Raj and Company and the sub-partnership of Messrs. Kishan Lal in which he is a partner representing the interests of the assessee Hindu undivided family was rightly included in the total income of the assessee Hindu undivided family ?"

3. Shri Prem Nath (H. U. F.) hereinafter for convenience referred to as the assessee, is a Hindu undivided family represented by its Karta Prem Nath. The said Prem Nath representing the interest of the assessee became a partner in the firm styled as Messrs, K. C. Raj and Company. He was also a partner in the sub-partnership styled as Messrs. Kishan Lal. Clause 7 of the partnership agreement constituting the firm Messrs. K. C. Raj and Company entered into between Messrs. Kishan Lal, Prem Nath, Balkishan and Smt. Ram Piari, provides, --"The working parties shall be entitled to charge an allowance of Rs. 750 per month each which shall be considered as business expenditure". In pursuance of this clause in the instrument of partnership, the three partners, except Smt. Ram Piari, have been drawing Rs. 750 per month each as remuneration, claimed by the assessee, as remuneration, for services rendered.

The Income-lax Appellate Tribunal had recourse to various authorities bearing on the subject and particularly the decision of this Court in Bhagwant Singh v. Commissioner of Income-tax, (1960) 38 ITR 436: (AIR 1959 Punj 594) and decided that the remuneration received by the Karta from the firm of Messrs. K. C. Raj and Company was rightly included in the assessment of the Hindu undivided family. The contention by the assessee before the Income-tax Appellate, Tribunal was--"The remuneration received by Prem Nath, the Karta, from the firm of Messrs. K. C. Raj and Company is the individual income of the Karta and is not the income of the assessee (H. U. F.)". Though an alternate contention had also been raised, but it is unnecessary to mention the same, as the arguments have been confined before us to the above quoted contention alone. The decision mainly turns on the reading of one decision of the Judicial committee in Amar Nath v. Hukam Chand Nathu Mal, AIR 1921 PC 35, and the Supreme Court decisions in Commissioner of Income-tax, West Bengal v. Kalu Babu Lal Chand, (1959) 37 ITR 123: (AIR 1959 SC 1289); Piyare Lal Adishwar Lal v. Commissioner of Income-tax, Delhi, (1960) 40 ITR 17: (AIR 1960 SC 997) and Mathra Prashad v. Commissioner of Income-tax, U. P., Civil Appeal No. 10 of 1965, dated 9-12-1965 (SC).

There are other decisions also, to which I will refer in the course of discussion. In Amar Naths case, AIR 1921 PC 35, the Privy Council held that in a joint Hindu family the rule is that the acquisitions of the members are joint property and partible, that is to say liable to be shared with the other members of the family, and impartibility is the exception and that persons qualified for earning money by specialised education, enjoyed to the detriment of family funds, become a continuing investment for