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TMI Blog1984 (3) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... F, he was assessed in the status of an individual. For the assessment year 1972-73, the assessee filed a return noting his status as a HUF as far as the share income from Devatha Papaiah is concerned. During that assessment year the assessee also claimed that there was a partial partition in his family on 18-10-1971 according to which, the sum of Rs. 1,83,000 which the assessee's joint family invested in the firm of Devatha Papaiah was partitioned. According to the said partition, the assessee as well as his three minor sons got Rs. 42,000 each whereas his wife got Rs. 5,000 and his two daughters got Rs. 5,000 each. Apart from the investment and share income in the firm Devatha Papaiah, the joint family of the assessee stated to have got house property, mulgi, jewellery, utensils, cattle farm house and agricultural land which were still held joint. The partial partition was recognised by the ITO under section 171 of the Income-tax Act, 1961 ('the Act') by his order dated 30-11-1974. The case of the assessee was that on 25-10-1971 there took place reconstitution in the firm of Devatha Papaiah whereby the three minor sons of Shri Devatha Papaiah were admitted to the benefits of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us of individual both for the assessment years 1973-74 and 1974-75. According to the ITO, the after-born son is not entitled to have the partition reopened but he was only entitled after the father's death to inherit not only the shares allotted to the father on partition but the whole of the separate property of the father, whether acquired by him before or after partition to the entire exclusion of the separated sons. It is also the view of the ITO that in Southern India the practice of allotting a share upon partition to females long became obsolete and the whole right of maintenance available to a Hindu wife and unmarried daughters was codified under the Hindu Adoptions and Maintenance Act, 1956, according to the provisions of which, the maintenance right is personal right which can be enforced against the husband and it is within the discretion of the Court passing the decree for maintenance to make the claim a charge upon the property. So, simply because a wife has got a right of maintenance, ipso facto it does not translate into a charge over the property held by her husband. It is also the opinion of the ITO that after the Hindu Adoptions and Maintenance Act came into force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is held that the Supreme Court decision given under the Wealth-tax Act, 1957, is equally applicable to cases arising under the 1961 Act. Further, in the opinion of the AAC, the birth of another male issue to Shri Devatha Papaiah has further clinched the issue. Therefore, ultimately he determined the status of Shri Devatha Papaiah as a HUF, set aside the ITO's order and the appeal was allowed. He directed to delete the incomes of Master D. Muralidhar Gupta, Master D. Ram Mohan and Master D. Rukminiprasad from the total income of the assessee. 5. Aggrieved against the impugned orders of the AAC, the revenue came up in second appeal for each of these issues and, thus, the matter stands for our consideration. We heard Shri N. Santhanam, the learned departmental representative, and Shri M. Anandam, the learned counsel for the assessee. According to the learned departmental representative, the share derived by Shri Devatha Papaiah in partial partition, according to the categorical Andhra Pradesh High Court judgment in CWT v. Mukundgiriji [1983] 144 ITR 18, is the separate property of Shri Devatha Papaiah and so the ITO's assessment of Shri Devatha Papaiah as an individual is quite corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y specific property of the deceased when he was alive and the nature of her right of maintenance is only personal in character. The learned departmental representative also argued that the son was born on 23-2-1977 which falls in the assessment year 1974-75. As far as the assessment year 1973-74 is concerned, the learned departmental representative argued that Shri Devatha Papaiah took his share in partial partition absolutely and his wife had no right in it. Assuming without admitting that she had any right of maintenance, her right was duly taken care of by the other undivided properties not covered by the partial partition as well as the amount of Rs. 5,000 each provided to the wife and daughters in the partial partition. He argued that the right of maintenance available to a Hindu woman was clearly laid down in Smt. P. Leelavathamma's case. Therefore, he argued that the AAC's decision is clearly wrong and should be set aside and the appeals allowed. 6. Shri M. Anandam, the learned counsel for the assessee, contended that Mukundgiriji's case rendered by the Andhra Pradesh High Court did not take into consideration the Supreme Court decisions in Gowli Buddanna's case, N.V. Naren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the emerging legal position in para 25 of their elucidating judgment as follows : " 1. Where the property 'was originally' owned, by coparceners of a HUF and later devolved on a sole surviving coparcener who had female members in his family, the character of the property as HUF does not change in spite of the temporary reduction of the number of coparceners and the sole surviving coparcener has to be assessed as a HUF as in Gowli Buddanna's case. Similarly where the property of a HUF is partitioned, the property so allotted to a single coparcener who has female members in the family has to be assessed as HUF on the principle of Gowli Buddanna's case as applied to Narendranath's case. Where, however, there is physical absence of female members entitled to maintenance on the property, the sole surviving coparcener in possession of the above-mentioned property has to be assessed as an individual till such time that he gets married. That is the exception to the rule in Gowli Buddanna's case made in Krishna Prasad's case. 2. But where the property was not owned by a HUF before it came to be owned by a sole surviving coparcener living with female members of the family entitled to main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature to live together, continue to do so and form a joint Hindu family. The appellant is not by contract seeking to introduce in his family strangers not bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter." 7. Now let us apply the correct legal position enunciated by the Andhra Pradesh High Court in Premchand's case to the facts of the present case. Admittedly the investment by Shri Devatha Papaiah in the firm Devatha Papaiah, Nizamabad, prior to 18-10-1971 was part of joint family property. On 18-10-1971 the said joint family property found invested in the firm was Rs. 1,83,000. This amount was partitioned among Shri Devatha Papaiah, his three minor sons, his wife and two unmarried daughters. This partial partition was duly recognised by the ITO by his orders dated 30-11-1974. From 20-10-1971 Shri Devatha Papaiah, his three minor sons along with some others formed themselves into a partnership and carried on business. The sons were assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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