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TMI Blog1983 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... property. The assessee who is the son of late Maharaja and claims to be the karta of HUF filed the returns for all these years on the basis that after the death of late Maharaja only his share in the coparcenary property devolved by succession under the proviso to section 6 of the Hindu Succession Act, 1956 but the HUF consisting of the sons, widow, etc., continued to remain in existence in respect of the remaining property and was, therefore, assessable entity. The department's case all along has been that the property in the hands of the late Maharaja was his individual property and, therefore the said property passed by succession on his death on his heirs under the Hindu Succession Act and they would be liable to be assessed on the share which they inherited from the late Maharaja. However, since the returns had been filed in the status of HUF, the assessments had been completed on protective basis. 3. The assessee came in appeals before the Commissioner (Appeals) and challenged the assessments made on protective basis. At the time of hearing before the Commissioner (Appeals), the matter was discussed in the light of ruling of the Supreme Court in Gurupad Khandappa Magdum v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made, that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a procedural step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in actual partition cannot generally be recalled. The inevitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up amongst the sons and the mother and they filed returns in respect of their own shares as individuals or smaller HUFs. It was conceded that so far as the widow of the late Maharaja was concerned her share on a notional partition would be one-sixth in her own right and one-sixth out of one-sixth share of the Maharaja as an heir under the Hindu Succession Act and that she would not be a member of the HUF. On the other hand, the stand of the learned departmental representative was that late Maharaja was always individual though the Tribunal had held that his status was that of HUF and the matter is in reference before the High Court. The department is entitled to make a protective assessment and authorities were cited in support of this proposition. It was urged that even on the interpretation placed by the learned Commissioner (Appeals) on the Supreme Court ruling in Gurupad Khandappa Magdum's case, the annulment of the assessments was improper. 6. We have considered the rival contentions. We have also carefully read the ruling of the Supreme Court in the case of Gurupad Khandappa Magdum and also the Full Bench of the Bombay High Court ruling in the case of Sushilabai Ramchandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips then posed the next somewhat different problem which was to determine whether the plaintiff's share in coparcenary property was 1/24 or 1/4 plus 1/24, i.e., 7/24. Their Lordships made the following observations in this regard : " We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact ' a partition of the property had taken place ', the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share." [Emphasis supplied] Further their Lordships held as follows : " In order to ascertain the share of heirs in the property of a deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Explanation 1 are reasonably possible, their Lordships must prefer that interpretation which will further the intention of the Legislature and remedy the injustice from which the Hindu women had suffered over the years. That was a case where a suit was filed by a Hindu widow after the coming into force of the Hindu Succession Act. The question, however, arises whether the effect of this ruling is only limited to the case of a widow and if there are more than one coparceners, the remaining coparceners would remain joint and continue to form a HUF. The reading of the second quotation reproduced above in Gurupad Khandappa Magdum's case would show that the partition which has to be legally assumed under Explanation 1 to section 6 is to be treated as a real partition. It has to be treated and accepted as complete reality, something that cannot be recalled just as a share allotted to coparcenary cannot jointly be recalled. In the face of such clear words used by the Supreme Court it seems really difficult to hold that the Supreme Court meant only to apply this ruling in the case of a widow who came before them and not in the case of remaining coparceners, where there were more than ..... X X X X Extracts X X X X X X X X Extracts X X X X
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