JUDGMENT

H.N. Seth, J. - This is a reference u/s 256 of the Income Tax Act, 1961. Smt. Priti Lata Samanta, the assessee, is a widow and a partner in a firm known as Messrs. Students Friends. Her two minor sons were admitted to the benefits of the firm in which the assessee herself is a partners. In the assessment year 1962-63, the Income Tax Officer added the share of the income of the two minor sons in the income of the assessee. The assessee went up in appeal and urged that the word "individual" as used in Section 64 of the Act refers only to the male of the species as held by the Supreme Court in the case of The Commissioner of Income Tax, Madhya Pradesh and Bhopal Vs. Sodra Devi, AIR 1957 SC 832 and therefore the Income Tax Officer was wrong in adding the income of the minor sons, derived in the partnership business, in the income of the assessee. The Appellate Assistant Commissioner rejected the plea. The assessee then filed an appeal before the Appellate Tribunal. Before the Tribunal it was conceded that the decision of the Supreme Court in Sodra) Devi's case was u/s 16 of the Income Tax Act of 1922, whereas the present case was governed by Section 64 of the 1961 Act. The wordings of Section 64 of the 1961 Act are different from the wordings of Section 16 of the 1922 Act, and that it is now not open to the assessee to contend that the word "individual" as occurring in Section 64 is confined to a male of the species only. It was, however, urged that the word "individual" would not include a widow though it may include a husband or wife, and therefore the income of the minor son could not be added to the income of his widowed mother. This argument did not find favour with the Appellate Tribunal and the Tribunal upheld the inclusion of the income of the minor sons in the income of the assessee. The assessee, thereafter, made an application for referring a question of law to the High Court for its opinion. The Tribunal found that inasmuch as a question of law did arise in the case, it referred the following question for the opinion of this court:

" Whether the assessee being a widow, on the facts and circumstances of the case, the share income of her two minor sons from the firm in which the assessee is also a partner was rightly included in the assessment of the assessee under the provisions of Section 64(ii) of the Income Tax Act ? "

2. Section 64 of the Act runs as follows :

" In computing the total income of any individual there shall be included all such income as arises directly or indirectly-

(i) to the spouse of such individual from the membership of the spouse in a firm carrying on a business in which such individual is a partner;

(ii) to a minor child of such individual from the admission of the minor to the benefits of partnership in a firm in which such individual is a partner;

(iii) subject to the provisions of Clause (i) of Section 27, to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate consideration or in connection with an agreement to live apart;

(iv) subject to the provisions of Clause (i) of Section 27, to a minor child, not being a married daughter of such individual, from assets transferred directly or indirectly to the minor child by such individual otherwise than for adequate consideration ; and

(v) to any person or association of persons from assets transferred otherwise than for adequate consideration to the person or association of persons by such individual, to the extent to which the income from such assets is for the immediate or deferred benefit of his or her spouse or minor child (not being a married daughter) or both.

Explanation.--For the purpose of Clause (i), the individual in computing whose total income the income referred to in that clause is to be included shall be the husband or wife whose total income (excluding the income referred to in that clause) is greater; and, for the purpose of Clause (ii), w