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TMI Blog1986 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers? The brief facts of the case are that the property consisting of lands in Duda Garden at Sansar Chandra Road, Jaipur was received several years back by late Shri Jaswant Singh and had the character of impartibility. After his death Shri Bhanu Pratap Singh, his son, took charge of the property and there was no dispute to the fact that it was an ancestral property. Shri Bhanu Pratap Singh died on 21-5-1966 at which time he did not have any son or any daughter but left behind his wife and mother. The assessee adopted one Shri Kuldeepsingh on 2-6-1966. The claim of the assessee was that the adoption was effective from the time when the husband of the lady was alive and, therefore, the character of the property continued to be that of a HUF. This was, however, not accepted by the authorities below, as according to the provisions of section 4[6] of the Wealth-tax Act, 1957 ['the Act'] read with section 6 of the Hindu Succession Act, 1956, when the Hindu dies leaving his family property behind with on male members, then the female members receive the property by succession and not by survivorship. Therefore, they concluded on the death of the husband of the assessee, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that even without the adoption on certain authorities of the Supreme Court and this Court, a joint Hindu family was in existence consisting of the widow of Atmaram and her daughter. It is to be remembered that when Atmaram died his natural born son was surviving. Undoubtedly, the joint family was in existence or a Hindu undivided family was there, as a widow could adopt a child. In such a situation on the authorities of this Court in Pannalal Rastogi v. CIT [1967] 65 ITR 592 [Pat.] and that of the Supreme Court in N. V. Narendranath v. CWT [1969] 74 ITR 190 it can be safely held that the Hindu undivided family was always in existence irrespective of the death of the natural born son of Atmaram or the adoption being made later. I have ventured to express a view of my own in the case of the existence of the joint Hindu family on partition and drawn a distinction between the cases of the continuance of the Hindu undivided family on the death of a male member and the coming into existence of a new family on partition. This I have done sitting with Nagendra Prasad Singh, J. in the case of CWT v. Pannalal Rastogi [Tax case No. 19 of 1969 decided on the 22nd November, 1973]. Yet I had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d child steps into the shoes being born in the family thereby receivable the right in the property [Sic]. Their Lordships of the Supreme Court again were not considering a situation where there was only one male member dying, leaving only female members. Their lordships were considering again the situation of their existing a bigger HUF of which the widow's husband was only a coparcener. 5.1 The salient distinctive features in the present case from the one referred to by the assessee are that in the case of the assessee there existed no bigger HUF which was the main criterion in the other cases for coming to the conclusion of the continuance of the HUF. The other case referred to by the assessee was Narayan Rao Sham Deshmukh's case. In this case, their lordships of the Supreme Court were considering a situation where the HUF comprised of the karta, a male member and female members comprising of the wife of the karta, etc. The karta died. The issue was whether on the death of the male member the shares of the female members are defined though the female members may acquire a right which is indivisible and/or not reducible and whether the family continues or not. Their Lordships on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or interstate succession, as the case may be under this Act and not by survivorship. Explanation 1: For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intesacy a share in the interest referred to therein." The reading of the section reproduced above is clearly indicative of the fact that on the death of a Hindu leaving behind female members only, there is disruption of the famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that from the time a child is adopted, the severe all connections with his original family and gets replaced by those created by adoption in the adoptive family, with which there is no dispute but to say that this means that he should be deemed to have been part of the family even prior to the adoption thereby he continues the HUF from the time of death of the adopted mother's husband is altogether different analogy, which is not acceptable. This is so in view of the clear provisions contained in the Hindu Adoptions and Maintenance Act (section 12). This provision has been included in the section with a clear intention and understanding that the adopted child knows fully well that he has no claim on the property, which already vests in his adopter and it is for the adopter to give the property if she so chooses so that a widow is not deprived of her subsistence. This is precisely the reason why we had to refer to the provisions regarding a person throwing his self-required property into the family hotchpotch. The Supreme Court in the case of Pushpa Devi v. CIT [1977] 109 ITR 730 was considering this very issue of a female who was an absolute owner and throwing her property into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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