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TMI Blog1965 (12) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... vided family ? " The facts giving rise to this question may be shortly stated : One Atyam Subbiah of Palacole owned extensive properties. He was 70 and had no male issue. The only issue that he then had was a daughter, one year old, by his wife, Nagarathnamma, who was alive. He had a great circle of relations and friends. Most of them became the objects of his bounty under the will dated September 4, 1938, which was his last testament. In that will he expressed his intention to take Chinna Sita Ramayya, son of Saladi Mamillayya, in adoption during his lifetime and directed that, in case he died without taking him in adoption, all his properties, movable and immovable, except the properties mentioned in schedules A, B and C, shall devolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly brought to tax the total income of the entire property in the very return filed on behalf of the minor considering him as the sole surviving coparcener. On appeal, the Appellate Assistant Commissioner agreed with the Income-tax Officer that the status of the assessee was that of a Hindu undivided family and upheld the assessment. On further appeal, the Appellate Tribunal held that Chinna Sita Ramayya constituted a joint family with his son and after his death the estate in the hands of the widow and the minor son constituted joint Hindu family property and that, as no partition has taken place, the son was rightly assessed as a Hindu undivided family. The matter has now on the requisition of the assessee come before us. The two main po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d recall. Subsequent adoption cannot undo the effect thereof. Therefore, his right, title and interest in the said property cannot inevitably be traced to any event apart from the will. The nature of the property would, therefore, be his separate property and not the ancestral or joint family property. The same would be the result if the property was the self-acquisition of Atyam Subbiah. Such property in the hands of the legatee does not become ancestral either on a son being born to him, for it is not the property that has come from an ancestor either by reason of partition or by inheritance. It cannot be deemed to be a gift or bequest made in terms to the son either, for it was made and even came into force when such relationship between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exception can be taken by his male descendants. On the question whether such property, if given by gift or bequest to his own son, would constitute in the hands of the donee or legatee ancestral property so that his son on that account may claim right by birth, their Lordships observed thus : " ... a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect, either in the deed of gift or a will, no difficulty is likel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Hindu Succession Act, 1956, her limited interest was changed to absolute right by reason of her possession on the date of the latter Act. The expression " possessed " used in the initial part of section 14 refers to the possession on the date when the Succession Act came into force. Such possession may be actual or constructive or may be what is described as possession in law. It cannot be disputed that she was in actual possession of the property both as a guardian and as a co-owner. It is on this basis that the widow and the minor both have filed their returns as individuals and not as Hindu undivided family. The income-tax authorities have rejected the claim on the basis that the property was the joint family property and what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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