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TMI Blog1988 (4) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... s and movable properties. Another return was filed in the case of V.K. Buty on 15-9-1980 declaring total net wealth of Rs. 6,61,600 and in the case of G.K. Buty on 23-3-1981 declaring total net wealth of Rs. 4,95,500. While filing the revised returns, no statement was filed but, in the second return that was filed, both the assessees omitted the value of assets received by them from their deceased parents. Probably, the stand of the assessees was that the assets received by them from their deceased parents constituted HUF properties, whereas the stand of the revenue was that it constituted individual properties. It would appear that the dispute in the same form for the assessment year 1980-81 in income-tax proceedings came up before the Tribunal in departmental appeals filed in the cases of both the assessees and the Tribunal, in their combined order dated 1-8-1986 dealing with these appeals in the cases of the two brothers and their respective HUFs, gave the following finding for the detailed reasons discussed by them in their order at para 15 which is reproduced hereinbelow :--- " 15. In the HUF assessments the income had been included by the ITO on account of the returns filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r will on 12-5-1970 in which, inter alia, she averred that consequent to the partition that took place on 1-1-1958 she had become an absolute owner of the share that she had received on partition of the property belonging to the former HUF and that she had full authority in law to dispose of that property according to her wishes and in exercise of such authority she had decided to bequeath her share of the movable and immovable property which she had received to her two sons who will be the absolute owners of their respective shares which are receivable by them after her death. She also stated that her husband, Keshavrao, and her daughter, Alaknanda, had no right whatsoever over her share of the property, on which she had absolute control during her lifetime. 5. The said Keshavrao Buty died on 2-11-1974 and his wife, Lilabai, died on 16-4-1974. As stated earlier, they had three children, Vinayak, Gopal and Alaknanda. Vinayak and Gopal were married and each had a son during the lifetime of Keshavrao Buty and Smt. Lilabai Buty. The wills of the appellants' father and mother were probated on 19-4-1978 and 2-3-1979 and the administration of both the estates left under these wills and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the property, which was the subject-matter of the wills, was not the self-acquired property of the testators. What was partitioned was basically the ancestral property of the Buty family and although the partition took place on 1-1-1958 between karta Keshavrao Buty and his wife, Smt. Lilabai Buty, and their two sons, Vinayak and Gopal, in four equal shares, Keshavrao and his wife, Lilabai, constituted a smaller HUF in spite of the partition and consequently Keshavrao was not competent to will away his share which was a share belonging to the HUF of himself and his wife. In support of the proposition that what was received by Keshavrao on partition was received by his smaller HUF of himself and his wife, Shri Dewani relied on a decision of the Andhra Pradesh High Court in the case of Prem Chand v. CIT [1980] 148 ITR 440 at page 448. In that case, in a partition in a HUF among the karta, his wife and the sons, the property obtained by the karta was previously held by the coparceners of the HUF before partition. The Court held that after the partition the quality of the property as HUF property continued, even though the number of coparceners was reduced. The fact that the karta' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the surrounding circumstances. For this proposition, he relied on C.N. Arunachala Mudaliar v. C.A. Murugantha Mudaliar AIR 1953 SC 495. He summarized his arguments by pointing out that the will was not in respect of self-acquired properties. The properties, which were a subject-matter of appeal, were ancestral. The two sons, who had been given equal shares in the will, had existing HUFs, inasmuch as they were married and each of them had a son and they had treated the properties as belonging to the HUFs and finally, argued Shri Dewani, the grandchildren will get right in the ancestral properties obtained by their fathers (the assessees herein) from their father. 8. The learned Representative for the Department, relied on the order of the ITO and that of the Tribunal in the income-tax case. He also cited a decision of the Patna High Court in the case of CIT v. Shankar Lal Budhia [1987] 165 ITR 380 (FE). 9. We have carefully considered the contentions made by Shri Dewani and those made by the learned Departmental Representative. Before going into the case law relied upon by Shri Dewani, it is necessary to note the fact that the wills of Keshavrao and Lilabai have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the share received by her on partition. This statement on the part of Smt. Lilabai was similar to a statement to the same effect made by Keshavrao which clearly declared the intention of the parties. Partition, according to Mitakshara Law, consists in a numerical division of the property. In other words, it consists in defining the shares of the coparceners in the joint property. Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. In the present case, division of the property by metes and bounds had also taken place. It has also been held that partition is the severance of joint status ; as such, it is a matter of individual volition. All that is necessary, therefore, to constitute partition is a definite and unequivocal indication of the intention by a member of a joint family to separate himself from the family and enjoy a share in severality. Although a copy of the deed of partition dated 1-1-1958 has not been filed before us, this intention can be gathered from the various averments referred to in great detail hereinabove made in the wills of Keshavrao and Lilabai. Therefore, by their conduct, it is amply clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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