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TMI Blog1992 (7) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... se ancestral property and cash Sri Subramanyeswara Rao came along with his family to Amalapuram and settled down there. He began doing business being a partner in Sri Ramakrishna Silk Palace in which he used to represent his family with 50 per cent interest in it. In 1963 the family acquired agricultural land as well as house in Sakurru village and they also invested family funds in Sri Ramakrishna Silk Palace, Amalapuram. 3. It is the case of the accountable person that there was disruption in the joint family and severance in status had been settled from 31-3-1963 and in fact from that date there was no joint family as such and the members of erstwhile joint family (namely the deceased and his three sons) were divided and enjoying their respective shares in the joint family properties as tenants in common and not as joint tenants and therefore, on the death of the deceased which took place on 29-6-1977, the lineal descendants' share was not liable to be included for rate purposes under section 34(1)(c) of the E.D. Act while making Estate Duty assessment against the estate left by the deceased. It is also the contention of the accountable person that both the Asstt. Controller of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four equal shares by debiting our investment in our joint family account in the firm and crediting each of our respective shares in our respective independent accounts in this firm. Apart from this we settled our joint family account where there was an investment balance of Rs. 104.87. Even that amount was divided into four equal shares by crediting our respective shares in it in our respective independent khartas in the joint family books of accounts. There are no other assets relating to the business which remained to be divided : Particulars of partitioned investment amounts---- K. Subrahmanyeswara Rao 0-2-0 Rs. 22,659-40 K. Nageswara Rao 0-2-0 Rs. 22,659-40 K. Satyanarayana Murty 0-2-0 Rs. 22,659-41 K. Sitharamachandra Murty 0-2-0 Rs. 22,659-41 ------------------------- Credit : Rs. 90,637.62 Debit Rs. 90,637.62 ------------------------- The above said narration was admittedly made in the capital account of the deceased representing the joint family in the ledger books maintained by Sri Ramakrishna Silk Palace, Amalapuram. It was a partnership firm in which the joint family headed by the deceased held 50 per cent share or interest. His three sons have got separate led ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not establish that he had gone out of the family. " The accountable person relies upon the Kerala High Court decision in Venkideswara Prabhu Ravindranatha Prabhu v. Surendranatha Prabhu Sudhakara Prabhu AIR 1985 Ker. 265 which was published by the Andhra Pradesh Law Journal as one of the cases in its Digestive notes of cases in (1986)(1) A.P.L.J. (DNC) page 8. In the head note of the said decision the following is held :---- "Actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance in status. That is only a procedural formality to be undergone in the process of partition. Even without undergoing that formality severance in status could be had. Expression of an unequivocal intention to separate resulting in division of status is sufficient to bring about the severance of status. That is the question of fact to be decided on the merits of each case. Simply because properties are not physically divided and allotted to members, a partition will not cease to be such, provided there are no facts and circumstances evidencing severance in status. When severance is attained, the joint family status is definitely disru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have manifested at least by appropriate entries made in the family books of accounts since it was a family affair and it is quite unlikely that a narration bringing about division in status between them, would be made in third parties books of accounts like M/s Sri Ramakrishna Silk Palace, Amalapuram. It is the case of the accountable person that partial partition dated 31-3-63 was recognised by the ITO by means of an order passed under section 171 of the I.T. Act. If in fact there was division in status set in even on 31-3-63 and the members of the erstwhile joint family began separately living in pursuance thereof, the necessary allegation or recital in that regard would have certainly find place in the petition filed before the ITO for recognition of the partition dated 31-3-63 since it can be fairly taken to be a contemporaneous document. Necessary arguments before the ITO would have been advanced to recognise a total disruption of the joint family or a severance in status set into the joint family on and from 31-3-63. Necessary arguments in that regard would have been advanced before the ITO, who passed the 171 order. However, neither petition copy seeking recognition of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Tribunal was interpreting the documents of the partition deed on 20-5-1957. The following narration in the said deed filed for the interpretation of the Tribunal : " the properties that fell to the share of Ramabhadraraju are being managed by Ramabhadra Raju since then. But 2, 3, 4 and 5 of us are not interested in such joint management and as No. 1 among us is being demanded by mother of 2 to 6 on their behalf for the partition of the said joint family properties, and as No. 1 of us being felt that it will be beneficial to partition, the properties and cultivate the same individually then joint cultivation and management, for the improvement and enjoyment of the same and as No. 1 of us also wanted to partition the properties with others, we all have decided to partition our family properties. " Parties 2 to 6 in the said partition deed are the minor sons and wife of Ramabhadra Raju. The above recitals bring out an intention to partition of the properties in the family in unequivocal terms. They felt that such a partition is for the benefit of the minor. So also No. 1 among them who is the father of the family as patria potestas is entitled to partition the properties himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no such recital present in the impugned narration dated 31-3-63. Finding regarding division in status being a question of fact, had to be determined on the facts and circumstances of each case. We hold that the facts of the earlier decisions of the Tribunal are quite different from the facts of the present case before us and therefore those decisions of the Tribunal cannot be applied to the facts of the present case. From the impugned narration dated 31-3-63 the intention is to live apart from each other or to deny themselves the right to go together or the privilege of having the right to reside jointly under the same roof, the right to have a common mess and the right of common worship. Therefore, in our considered view every partial partition with regard to some of the properties held by the joint family does not necessarily bring about a division in status. Even after a partial partition of the properties among its members, a joint family can still exist having commonality of residence, mess and worship. According to us the lower authorities are perfectly justified in holding that the impugned narration did not bring about a division in status. On the other hand they are per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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