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TMI Blog1965 (11) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... two questions to this court for decision : " (1) Whether, on the facts and in the circumstances of the case, the inclusion of interest of Rs. 3,000 in the assessment was legal and valid ? (2) Whether the view taken by the Tribunal that the properties received by an issueless male at a partition between coparceners would be his individual properties and not that of the Hindu undivided family of himself and his wife, is correct? " The reference relates to the assessment year 1957-58 for which the assessee was assessed in the status of an individual. The assessee, Pratap Narain, is a partner of a firm carrying on business under the name and style of Devidin Pusulal. He executed a deed on June 21, 1965, purporting to record an agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the amount of Rs. 50,000 was the income of the assessee. In the circumstances, the Appellate Tribunal found it unnecessary to consider the application of section 16(3). The question whether the amount of Rs. 50,000, was transferred by way of gift by the assessee to his wife has been considered by us in I.T.R. No. 92 of 1963, decided on 3rd November, 1965, and we have held that Pratap Narain had transferred the amount to his wife, Ramo Devi. The material upon which we arrived at that decision is the same as is contained in the case before us and, for the reasons which have prevailed with us in that case, we hold that the sum of Rs. 50,000 was transferred by the assessee to his wife. Consequently, the sum of Rs. 3,000 paid as interest upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal held that the property, upon partition, was held by him as his separate or self-acquired property so long as he did not beget a male issue or adopt a son. The correctness of this conclusion is the subject of the second question referred to us. At one stage, during the course of arguments, Mr. Das disputed the fact that the property partitioned between the brothers was Hindu undivided family property, but it seems that this dispute was never raised before the Appellate Tribunal nor before the Income-tax Officer and the Appellate Assistant Commissioner. All three authorities have proceeded on the basis that what was divided between the brothers was Hindu undivided family property. It seems to us that it is now well settled, that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing regarded as the 'owner' of the family property. But though it may be correct to speak of him as the 'owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality : it is such, too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property. Once again their Lordships quote from the judgment of Gratiaen J. : ' To my mind it would make a mockery of the undivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word 'owner' in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as' joint property ' of the undivided family. Judging by that test, their Lordships have no doubt that the Supreme Court came to the right conclusion." That coparcenary continues to subsist even when there is in existence merely a widow of a coparcener but one capable of bringing a son into existence by adoption is borne out by the following observations of the Supreme Court in Krishnamu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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