JUDGMENT
1. Late Syed Hyder Imam was assessed under the I. T. Act, for the assessment years 1964-65 and 1966-67, and income from one residential house in the town of Patna was held to be taxable in his hands, as his case of having given that house in discharge of dower debt to his wife in the year 1961 was not accepted because the same was not by a registered instrument, but by an oral gift. Against the original orders of assessment for both the years, the assessee filed appeals before the AAC of Income-tax, Patna, and the Assistant Commissioner allowed the appeals and accepted the assessee’s case that the income from the house was not taxable in the hands of the assessee. In other words, the Assistant Commissioner accepted the assessee’s case that the residential house was validly transferred in lieu of dower debt to the wife by the assessee. Against this order, the department filed appeals before the Tribunal, which allowed both the appeals in respect of both the assessment years and restored the orders of the assessing officer, holding that the income from the residential house in question was taxable in the hands of the assessee. At the instance of the assessee, the Tribunal referred the following questions for the opinion of this court under Section 256(1) of the I. T. Act :
“1. Whether, on the facts and in the circumstances of the case, the gift of residential house, without a registered deed, is complete and effective under the Mohammadan law by which the assessee is governed ?
2. Whether, on the facts and in the circumstances of the case, the income from the house property falls for inclusion in the total income of the assessee ?”
2. During the pendency of these two reference cases, the assessee died and his heirs have been substituted in his place as petitioners in these tax reference cases.
3. So far as the first question is concerned, it stands concluded by a Full Bench decision of this court in the case of this very assessee, Sayed Saddique Imam v. CIT [1978] 111 ITR 475. That was a reference in respect of the assessment year 1965-66, and the question of transfer of the house in lieu of dower debt came in for consideration. It was held by this court that where a Muslim transfers a property valued over one hundred rupees, it has to be by a registered instrument and not orally. Learned counsel for the parties agree that in view of the legal question decided in that case, the decision with regard to the first question has to be against the assessee.
4. So far as the second question is concerned, Mr. S. S. Ashghar Hussain, appearing on behalf of the assessee, has submitted that even if the transfer of the house in lieu of the dower debt was not valid, on account of its not having been effected by a registered instrument, the fact remains that the wife was in possession of the residential house and the assessee derived no income from the said house. Hence, the income from the house could not be taxed in the hands of the husband.
5. Mr. B. P. Rajgarhia, appearing on behalf of the department, however, urged that in view of Sections 22 and 23 of the I. T. Act, the income of the house was that of the owner and the husband being the owner of the house, in law, he was liable to be assessed in respect of the house in question.
6. After going through the statements of the case and the orders of assessment, we find that the second question is a corollary to the first question and has not been referred to as an independent question. There being no foundation for the submissions made by Mr. Hussain, either in the assessment orders or in the statements of the case, we need not go into this question at all, and we do not express any opinion on this question, one way or the other. The second question, as a corollary to the first question, also is answered against the assessee. These cases are disposed of accordingly. There will be no order as to costs.