9911796707
TMI Blog1990 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... in Tiruchengode village valuing Rs. 1,000 to his daughter towards strindhana. Parvathammal died in October 1966 intestate. After her death the house property in Tiruchengode was inherited by her son Krishnappa Chetty. Krishnappa Chetty himself died again intestate on 27-7-1979 leaving behind his two sons and his widow. The question in this case is whether Krishnappa Chetty inherited the house property in Tiruchengode in his individual capacity or whether his Hindu undivided family had inherited the property. In any view of the matter it is contended on behalf of the assessee that soon after the death of Parvathammal in 1966 late Krishnappa Chetty always used to treat the house property in Tiruchengode, which is hereinafter called the 'impugned property', as belonging to the Hindu undivided family comprising of himself and his two sons and their branches. He blended the property with that of the Hindu undivided family properties and always used to treat this property as the one belonging to the Hindu undivided family and therefore by virtue of blending and his treatment of the property as that of the Hindu undivided family the character of the impugned property changed from that bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year. For the assessment year 1981-82 the assessee Hindu undivided family was considered to be the owner of the impugned property and the property income from the impugned property was assessed in its hands. However, by virtue of the quantum of income being meagre and below the taxable limit (Rs. 9,840) the assessee was held to be not assessable. This order of assessment became final. For the assessment years 1982-83 and 1983-84 returns were filed by the assessee Hindu undivided family in which the property income was shown as its income. However, no orders of assessment were passed since income below taxable limit only was disclosed in its income-tax returns for those years. After the death of Krishnappa Chetty estate duty proceedings were taken up and the estate which passed on his death was assessed to estate duty. It is the contention of the assessee that the impugned property was not shown as one of the properties which passed on the death of Shri Krishnappa Chetty. On the other hand it was shown as part of the Hindu undivided family properties in which Krishnappa Chetty was stated to have possessed only 1/3rd share. This contention was stated to have been accepted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encumbrance. Great stress is laid on the wording that she should enjoy the property with her sons and grandsons. The document is in Tamil and the Tamil version itself would clearly reveal that Parvathammal should enjoy for her life and afterwards the impugned property should be enjoyed by her sons and grandsons (Putra, Poutra Parambariyamai) in the order of sons, grandsons, etc. By this recital in the deed it is sought to be contended that the gift is made not only to Pravathammal but also to her sons and grandsons. The stipulation in the deed only shows that the gift is made only to Parvathammal as her stridhana and the donor wished that the enjoyment of the property should be by her daughter and after her her sons and grandsons. This stipulation is only the usual mode of conveyance occurring in the deeds in these parts, which would reveal as to what sort of an estate was made over to the donee. I hold that the above clause, on which great reliance was placed upon by the assessee, would not be of any avail to it. A fair reading of the document would show that the property should be enjoyed only by Smt. Parvathammal and subsequently by her sons and grandsons. A fair reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." It is also stated by the same author: "The act by which the coparcener throws his separate property into the common stock is a unilateral act and a matter of individual volition. As soon as he declares his intention to treat his self-acquired property as that of the joint family the property assumes the character of joint family property". In this case the question would be whether the omissions on the part of the assessee can also be taken into consideration to prove blending. The prime argument advanced on behalf of the assessee is that in none of the years prior to his death Krishnappa Chetty declared the impugned property as one of his assets in his wealth-tax returns. So also he never returned the property income on the impugned property as part of his income in his income-tax return. According to me blending must be proved by positive acts of a coparcener which would prove his intention to treat the self acquired property as part of the joint family property. Mere omission on his part to do a particular thing cannot be pressed into service to prove blending. If the income derived over the impugned property is allowed to be enjoyed by all the members of the joint family by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-84 though returns were filed by the assessee Hindu undivided family including the income over the impugned property in its hands no orders of assessment were passed, since the income returned was not beyond the taxable limit. The assessment for 1984-85 is now under consideration. Now let us take up the contention that the Assistant Controller of Estate Duty in the estate duty proceedings after the death of Krishnappa Chetty agreed with the assessee-Hindu undivided family's contention that the impugned property is part of the Hindu undivided family property and therefore the department should not be allowed to hold a contrary view in these proceedings. It is significant in this connection that the assessee had no doubt filed a photostat copy of the assessment order dated 17-11-1986 passed by the Assistant Controller of Estate Duty, Coimbatore. In the estate duty case relating to Krishnappa Chetty. It is significant that the estate duty account filed before the Assistant Controller of Estate Duty was not produced before me or before any of the lower authorities. If the copy of the estate duty account is furnished in which the particular of the Hindu undivided family properties are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before any of the lower authorities. The deponent is stated to be aged 80 years by the date of her affidavit dated 1-3-1990. This affidavit must be deemed to be coming from an interested person inasmuch as she is one of the members of the assessee Hindu undivided family. The affidavit is in Tamil. However, I got a free translation of the same. After the solemn affirmation the following is what is stated in the affidavit: "My husband Krishnappa Chettiar had acquired several properties in Salem during his lifetime. He had a building through his mother at Tiruchengode. The above property was being treated by him as ancestral in nature and he developed the property with the income derived therefrom. He was saying that after his lifetime as per the terms of the settlement deed of the mother the property should go only to his male children. Accordingly my sons are enjoying the property jointly. My husband's wish was that the property should go only to male heirs." The affidavit would clearly reveal that the improvements made in the impugned property were made only by spending the income derived therefrom. So it is significant that no joint family income was ever spent for the improvement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after reviewing the cases on the subject laid down the law as follows at page 381: ---- "In view of the preamble to the Act, i.e., to modify where necessary and to codify the law, in our opinion, it is not possible when the Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when a son inherits the property in the situation contemplated by section 8, he takes it as kartha of his own undivided family..... Furthermore, as noted by the Andhra Pradesh High Court, the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that property which devolved on a Hindu under section 8 of the Hindu Succession Act would be Hindu undivided family property in his hands vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property vis-a-vis their sons and female heirs with respect to whom no such concept could be applied or contemplated." Under no circumstance the assessee Hindu undivided family would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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