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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 ..... indu 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 between himself and his wife, Ramo Devi, to the effect that a sum of Rs. 50,000 had been transferred by him out of the amount standing to his credit in the books of the partnership firm to her account in that firm and that she was the sole owner of that amount and entitled to deal with it as she pleased. It was also stated that the partnership firm had issued a promissory no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 that sum by the partnership firm is not the income of the assessee. It may be another matter that the sum is liable to be included in the total income of the assessee by virtue of section 16(3). Mr. S. C. Das, on behalf of the Commissioner, has pressed us to decide whether section 16(3) applies, but, in view of the circumstance that the question was expressly left out of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when Hindu undivided family property is partitioned between the members of a Hindu undivided family, and a share is obtained on such partition by a coparcener, it is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. We are of opinion that it is not correct to say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 undivided family system if this temporary reduction of the coparcenary unit to a single individual were to convert what was previously joint property belonging to an undivided family into the separate property of the surviving coparcener.' To this it may be added that it would not appear reasonable to impart to the legislature the intention to descriminate, so long as the family itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Krishnamurthi v. Vasudeorao Deshpande Dhruvaraj : " In the present case, Krishnabai owned the property as full owner on the death of her father, Narasappa Gouda, according to the Hindu law in the area in which the property in suit lay. But her title was defeasible on Tungabai, widow of Bandegouda, adopting a son to her husband, Vasappa, and, after him, his sons, inherited this property ..... X X X X Extracts X X X X X X X X Extracts X X X X
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