9911796707
TMI Blog1987 (7) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the deceased's widow and her children. The Wealth-tax Officer disallowed the claim of the assessee. On appeal the Appellate Assistant Commissioner accepted the assessee's claim and directed the Wealth-tax Officer to exclude the share of the deceased from the total wealth of the assessee for these two years. He followed the decisions of the Mysore High Court in CIT v. Smt. Nagarathnamma [1970] 76 ITR 352 and of the Gujarat High Court in CWT v. Kantilal Manilal [1973] 90 ITR 289. Against the same the revenue has preferred these appeals. 3. The learned departmental representative strongly urged that after the death of Shri Damodar Das Agarwal, his wife Smt. Urmila Agarwal continued to be a member of the HUF and she did not partition th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the total wealth of the HUF. It is no doubt true that under the proviso to section 6 of the Hindu Succession Act read with Explanation 1 thereto the deceased's wife gets a share in the property of the deceased in the joint family. The share is fixed. The said provision was considered by the Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 wherein it was held that it has to be assumed that a partition had in fact taken place between the deceased and his coparcener immediately before his death. Thereafter the entire process of ascertainment of the ultimate shares of the heirs through all its stages should be assumed. All the consequences which flow from a real partition has to be logically worked out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority for the position that when a female member who inherits an interest in the joint family property under section 6 of the Act files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation 1 to section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be the case of families of persons who are not Hindus. In the instant case, the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao, the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed. " It was held in the above decision that no action has been taken by either of the two females concerned to become divided from the remaining members of the family and it should therefore be hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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