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TMI Blog1966 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a Hindu joint family. Neither at the time of the partition nor till the valuation date, the assessee had any male child. He submitted his return in the status of a Hindu undivided family. But the Wealth-tax Officer determined the status of the assessee as that of an individual. The assessee claimed to be assessed as a Hindu undivided family in an appeal before the Appellate Assistant Commissioner, but without success. Similar was the position when he went in appeal to the Income-tax Appellate Tribunal. On his request, the present reference was made by the Tribunal. The point for determination is whether, after partition effected in a Hindu undivided family, the assets that come to a separated member, who has no male issue at the time, can be said to belong to him absolutely. It cannot be disputed in respect of such assets, when a son is subsequently born to or adopted by the separated member, the coparcenary consisting of the father and the son will own them and the son by his birth will have an interest and share in those assets ; he can also claim partition if he so likes. In other words, those assets will belong to the coparcenary or Hindu joint family. The wealth-tax au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property continues as the separate property of the assessee. In other words, the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue, who takes an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. But as regards other relations, it is separate property ; and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see Mulla's Principles of Hindu Law, 13th edition, page 249). There is a distinction between a coparcener obtaining ancestral property as his share on partition and a sole surviving coparcener in possession of the ancestral property. In the latter case, the estate in the hands of a sole surviving coparcener retains the character of coparcenary property, though the coparcenary unit is reduced to one only for the time being. If there is a widow of a deceased coparcener in the family, she can bring into existence another coparcener by adoption. Since the coparcenary was not broken before the ancestral property came to remain in possession of the sole surviving coparcener, the character of the property remains as before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided family. The power of the father in regard to alienation and the way in which a person in his position is generally called the "owner" of a property, was not out of notice by the Judicial Committee. Learned counsel appearing for the assessee placed great reliance on this decision and argued that the position of a coparcener who has no other coparcener in his own branch, having a share out of ancestral property on partition is in no way different from a sole surviving coparcener remaining in possession of the entire ancestral property of the family. This remark may be right in regard to the power of alienation and exclusive possession till another coparcener springs into the family. But the real distinction between the two is that in one, the ancestral property remains undivided with the sole coparcener and in the other, after the break of the larger coparcenary and partition of the ancestral property, a moiety comes to the separated member. In the case of a partition, there may be a potentiality of another coparcener in the separated branch ; but until that potentiality materialises either by law or by nature, the coparcenary does not come to exist ; the partitioned property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome from those assets was assessable in the hands of a Hindu undivided family consisting of himself and his son, who was born on December 11, 1952. For him, it was argued that under Hindu law a son conceived or in the mother's womb is equal in many respects to a son actually in existence in the matter of inheritance, partition, survivorship and the right to impeach an alienation made by his father ; but it was held that this doctrine is not one of universal application and it applies mainly for the purpose of determining rights to property and safeguarding such rights of the son ; that doctrine does not fit in with the scheme of the Income-tax Act. Income-tax is a liability which could not be imposed upon persons yet unborn. In answer to the contention that by the end of the accounting year in that case, the son had already been born, and a Hindu undivided family consisting of the father and the son was in existence and hence the status for assessment of income should have been taken as that of a Hindu undivided family, their Lordships observed that : "But even if a Hindu undivided family was in existence towards the end of the accounting year, still the whole income received or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Buddappa used to be assessed in respect of the income from business dealings of the family during his lifetime in the status of a Hindu undivided family. He died on July 9, 1952. For the assessment year 1951-52, the previous year ended on November 8, 1950. For that assessment year, since Buddappa was dead by that time, Buddanna (the adopted son) was shown as the assessee, but his status was Hindu undivided family (as decided by the Appellate Assistant Commissioner and affirmed by Appellate Tribunal). Buddappa was a resident of and carried on business before January 26, 1950, at Raichur, which was a part of the territory of the Nizam of Hyderabad. His family was governed by the Mitakshara School of Hindu law, but at the material time, there was legislation in force in that territory by which, on the death of a male member in a joint Hindu family, his interest in the family estate devolved upon his widow ; such a widow had only a right to receive maintenance from the estate. On a reference, the Mysore High Court held that the sole male surviving coparcener of the Hindu joint family (Buddanna, his widowed mother and sisters) constituted a Hindu undivided family within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X
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