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TMI Blog1975 (6) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... the share allotted to the appellant on partition (after including accretions and excluding what was sold) belong to the family consisting of himself, his wife and his son and that he holds them as the kartha. However the dispute is regarding the land which he got out of his father s estate of 7.70 acres allotted to him (his father) on partition, since his father died on 2nd March, 1959 intestate. The heirs to his father were himself, his mother Smt. Seethalakshmi Ammal and his sister Smt. Subadra Ammal. It is common ground that each of the legal heir was entitled to one third share left by the sister in view of s. 8 of Hindu Succession Act. Hence the appellant s share was taken at 2.57 acres out of his father s estate. While the authorities would consider this share as belonging to his family, it is the appellant s case that this extent of 2.57 acres should be treated as his individual property. If the share inherited from his father, is included the holding of the appellant works out to 11.58 ordinary acres and 8.98 standard acres. If the share to the extent of 2.57 acres is left out, the standard acreage gets reduced by the same extent since the inherited lands are convertible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant and his father and that qua Chander Sen and his sons, it was separate property of Rangi Lal. In view of s. 8 of the Hindu Succession Act, 1956, since Rangi Lal died after the said Act, it was found that the property passed to Chander Sen by succession and not by survivorship. He therefore holds the property in his individual capacity and not as the kartha of the family. The Allahabad High Court referred to its own earlier decision in the case of Khudi Ram Laha vs. CIT (1968) 67 ITR 364 (All) where it had taken a similar view. The learned Authorised Representative therefore claimed that there was no doubt that the appellant was entitled to succeed on this view. During an earlier hearing, the then learned State Representative had argued that the established position in Hindu Law was that the property inherited by a Hindu son is always ancestral in his hands, vide Art. 223 of Mullah s Hindu Law, 13th Edition. He however wanted time to examine the issue further in the light of the judgment cited by the learned Authorised Representative. When the case was re-heard, Thiru K. Daniel Jesudasan, the learned State Representative argued that the facts are clearly distinguishable. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sen. That he holds such property in his individual capacity and not as the Karta of his own family is settled by a decision of a Divisions Bench of this Court Khudi Ram laha vs. CIT". He therefore claimed that the distinction sought to be made by the Asstt. CIT in his order and the learned State Representative if futile. 4. We have carefully considered the records as well as the submission. We are here concerned with 2.57 acres being one third of the share of 7.70 acres allotted to late Vaidhyanatha Iyer during a partition between him and the appellant, M.V. Genapathi in 1956. The genuineness of the partition has not been disputed, though such partition was oral. In fact, the Agricultural ITO for example in paragraph 3 of the order for the year 1971-72, says "Enquiry has revealed that an oral partition took place in 1955 in the family of the assessee and his father". The only ground therefore is the capacity in which the appellant holds one third share of the lands held by his father on the date of his death on 2nd March, 1959. No doubt, as pointed out by the learned State Representative, the decision of the Assam and Nagaland High Court in (1967) AIR (Assam and Nagaland) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judgment of Assam High Court clearly shows that the property which devolves upon a son under s. 8 of the Hindu Succession Act would always be his individual property just as it would be in a daughter s case. In this view, the older Hindu Law as dealt with Art. 223 of Mulla s Hindu Law, Thirteenth Edition, should no longer by held to be valid in respect of property which devolves on a Hindu after Hindu Succession Act came into force. However the point raised by the learned State Representative as to the difference between the alleged self-acquired property of the father and the property allotted to him on partition gets resolved still further if we refer to the decision of the Allahabad High Court in Chander Sen s case reported in. The learned State Representative is certainly incorrect in assuming that in Chander Sen s case also, the property was a separate or self-acquired property of the deceased. It was not so. The portion of the judgment reproduced in the preceding paragraph and the paragraph 2 of the judgment itself mentioning the brief facts clearly show that the amount standing to the credit of the deceased in the firm s books consisted of the amount allotted to the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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