9911796707
TMI Blog1991 (10) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu family ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that in view of the Kerala Joint Hindu Family System (Abolition) Act, 1975, only the presumptive share of the assessee can be included in computing his net wealth under the W.T. Act, 1957 ? " The High Court, by their judgment dated 1st June, 1989, in I.T.R. Nos. 43 and 44 of 1984, declined to answer the questions referred to it and directed the Tribunal to restore these appeals to its file and dispose of the same afresh in the light of the observations and directions contained in their aforesaid judgment. 2. As per the direction of the Hon'ble High Court, we restored the appeals to our file and heard the parties. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the particular person, a female member can demand partition or is allotted a share on partition in lieu of her right to maintenance or marriage expenses, then only she is entitled to a share in the properties. The said right is not universal in all schools of Hindu Mitakshara law. As far as the Mitakshara law (Madras School) is concerned, text books say that the practice has become obsolete long ago. For deciding the question in controversy ; the first thing to be ascertained is the particular school of law to which the assessee is governed. The further question will be whether by the particular school of law by which the assessee is governed, the female member can claim partition or is entitled to a share on partition in lieu of her righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or in a particular district has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in derogation of the general rule of law, must be strictly construed. It should be established to be so by clear and unambiguous evidence. It must not be opposed to morality or public policy and it must not be forbidden by Legislature and in derogation of fundamental rights. 6. The next question to be decided is whether the assessee has succeeded in establishing that his wife is entitled to a share after the commencement of the Kerala Joint Hindu Family System (Abolition) Act. In the case of Shantilal C. Shah v. CIT [1988] 169 ITR 805, the Hon'ble Kerala High Court held that H.U.Fs. in Kerala ceased to exist a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it is specifically stated that they belong to Jain religion and are governed by the Hindu Mitakshara law. In that partition, there were 8 parties including female members 4 to 7. They have partitioned the property into A to H and every member including the female members is allotted to one share each. From this document relied on by the assessee we find that only in the family of one Chandrapraban the female members were allotted a share in the family properties whereas in the family of the assessee no share was allotted to female members. We find that the custom is not uniform and certain. Under these circumstances, we hold that the assessee is governed by the Hindu Mitakshara school of law and the custom followed by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
