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TMI Blog1987 (1) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was negatived by the WTO on the ground that there cannot be any such partition in which there is only one male member. The Department placed reliance on the Madras High Court decision in the case of V.V.S. Natrajan vs. CIT 1978 CTR (Mad) 106 : (1978) 111 ITR 539 (Mad) where it was held that there could not be any partition effected by the Karta in regard to the family members where the members are only females and he is the only surviving male coparcener. 3. Aggrieved by this offer the assessee too up the matter in appeal to the AAC who had observed in his order that since under the IT proceedings the appeal having been rejected by the AAC, he follows the order passed by the Tribunal. The income-tax appeal in the case of M/s Motilal Maneklal in ITA No. 44/Ind/86 was also heard along with this appeal in which the issue was the disallowance of interest under s. 40(b) paid to Smt. Anandibai by treating it as amount paid to the HUF of the assessee. 4. Before us the argument of the counsel for the assessee, Mr. A.L. Jain, was that the Department is not disputing the fact there was an HUF comprising of the assessee as the Karta and his wife as the only member. According to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily arrangement comprising of Karta as the only male member and came to the conclusion that the Karta being of a coparcener was entitled to claim the partition and, therefore, the partition was valid. 7. The Madras High Court in the case of V.V.S. Natarajan vs. CIT 1978 CTR (Mad) 106 : (1978) 111 ITR 539 (1978) (Mad) had observed that there is no coparcener in the family apart from the Karta. Therefore, the basic requirement of there being any male member who could be a coparcener is absent in the present case and there could be no possibility of a partition. They have further observed that there could definitely be some provision for the maintenance of the wife but it was not the case of the assessee that the amount is given to the wife in lieu of her maintenance. They have further observed that a partition is impossible in a family like that. Since these two decisions much water had flown. This very issue came up for consideration in an Estate Duty matter by Their Lordships of the Madhya Pradesh High Court in the case of Ramratan vs. CED (1982) 27 CTR 152 (MP) (FB): (1983) 142 ITR 863 (MP) (FB). In this case the Karta of an HUF had left behind his wife as the female member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIT 1972 MP 204. In that case, the wife was not impleaded in a suit for partition and the preliminary decree was passed without declaring her share. Still it was held that on the passing of the preliminary decree the wife got a right to obtain her due share by instituting a suit for partition and that this right was property which vested in her absolutely and passed on her death, which took place before the passing of the final decree to her heirs in accordance with s. 15(1) of the Act. In holding so, it was said: "Simply because parties to a partition do not assign any share to a woman, who on partition is entitled to a share, she cannot be deprived of her rightful share and she can sue for it (Radhabai vs. Pandharinath AIR 1941 Nag. 135)". Thus, her right to share must be taken to accrue immediately a partition is made, although in that partition she is not assigned any share. Now, as decided in Munnalal's case, AIR 1962 SC 1493, this right to share has not to wait for its accrual till the property is actually divided but declared by a preliminary decree. Therefore, the moment the preliminary decree for partition was passed in the suit the right to share in the property accru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his death is only half the property and not the entire property. It appears to us that in Smt. Ramkunwar Bai vs. CED (1983) 142 ITR 852 (MP) (infra) to was admitted or conceded probably under same mistake that the wife of the deceased had half interest in the joint family property and the conclusion could be supported on that admission. The learned Judges towards the end of para 8 of the judgment in Ramkunwar Bai's case said: It is only the deceased's share in the joint Hindu family, admittedly half will be the property which passed on his death. These observations give rise to the inference that the deceased's share was admitted to be half and it was not contended that he owned the entire joint family property. The learned counsel for the accountable person also relied upon the decisions of the Supreme Court in Gowli Buddanna vs. CIT (1966) 60 ITR 293 (SC) and N.V. Narendranath vs. CWT (1969) 74 ITR 190 (SC). These decisions relate to the question of status. In Gowli Buddanna's case A, his wife, his two unmarried daughters and B, his adopted son, consisted an HUF. On A's death, the question arose whether the property ceased to be the joint family property and whether, when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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