9911796707
TMI Blog1972 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... -------------------------------------------------------------------------Date Name of Amount recipients transferred --------------------------------------------------------------------------------------------------------------------------------------------------Rs. December 28, 1954 Suresh Chandra 75,000 Amrit Rai 75,000 Kamla Devi 25,000 November 1, 1956 Suresh Chandra 35,000 Amrit Rai 35,000 July 31, 1957 Suresh Chandra 61,000 Amrit Rai 61,000 -------------------------------------------------------------------------------------------------------------------------------------------------- The accounts showed that the deceased as karta of the Hindu undivided family effected the dispositions of Rs. 75,000 to each of his sons and Rs. 25,000 to his married daughter, Kamla Devi, by debiting his personal account with Messrs. Indraprastha Corporation P. Ltd. and crediting the accounts of the respective recipients therein. On December 28, 1954, when the above dispositions were effected, the opening balance with Messrs. Indraprastha Corporation P. Ltd. was Rs. 5,455-15-3 and the closing balance was Rs. 2,454-9-3. As there was no sufficient cash balance with the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat these amounts passed out of the funds of the family and vested in the respective coparceners with effect from the respective dates. He referred to the fact that the amounts given to each of the two sons were equal on each of the three dates and this, he suggested, also supported the plea of partial partition. It was admitted that this plea was not taken by the accountable persons at the earlier stages, but it was urged that what is the legal effect of a transaction is entirely a question of law and that the counsel was entitled to argue that the transaction which had taken place on the three dates represented partial partition of the family property and did not amount to gifts of money by the father to his two sons. The Tribunal considered this fresh plea and held that there had been partial partition of the assets made by the deceased as the karta of the family, on the three dates severally and consequently, the sums of Rs. 1,50,000, Rs. 70,000, and Rs. 1,22,000 passed out of the assets of the family on the three relevant dates and these amounts did not constitute the joint assets of the coparcenary on November 22, 1957, when the deceased died. It was accordingly held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was partial partition between the members of the Hindu undivided family is that the amounts given to each of the two minor sons were equal on each of the three dates; but does that result follow from the premises ? The assessee himself did not set up that case. His case on the other hand was that the deceased had made gifts to two of his sons on various dates between December 28, 1954, and July 31, 1957, in addition to a sum of 25,000 given to a married daughter. It was therefore not his case that a partial partition had taken place between members of the family, and the disposition of money was in accordance with that partition. It was only at the stage of the second appeal before the Appellate Tribunal that the question of partial partition was raised by the counsel for the accountable persons. Shri G . C. Sharma, appearing for the Controller of Estate Duty, contended that, according to the Appellate Tribunal, the family was possessed of total assets worth Rs. 12,11,602 as assessed by the Assistant Controller of Estate Duty and that the total sum of Rs. 1,75,000 given on December 28, 1954, and Rs. 1,92,000 given on November 1, 1956, and July 31, 1957, came up to a figure of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-united cannot be regarded as good law. So the view in many cases was that the separation of one amounted to a virtual separation of all. In Balkrishna v. Ramkrishna, followed in Bhagwati Prasad Sah v. Dulhin Rameshwari Juer, Sir George Lowndes, delivering a judgment of the Board, adopted the statement by Sir John Edge in Palani Ammal v. Muthu Venkatachala : " It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is, on separation, entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener has separated from them. " In the light of the principles laid down in that decision, it was necessary to show that the share of the two sons had been ascertained and partitioned off w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a separation among the coparceners. The intention to remain joint may be inferred from the way in which the rest of the property was hold by the coparceners or it may be inferred from other conduct indication such an intention. Beyond the counsel's argument raised at the stage of the appeal before the Tribunal, nothing has been brought on record to show that intention. The deceased himself was not there at that time nor was there any evidence with regard to the attitude of Smt. Jawala Devi. No other material was placed on record to show that the family continued to be joint with respect to the remaining property. The accountable persons themselves were minors at that time and nothing was brought on record to show what their own attitude was at the material time. On the other hand, the deceased himself had claimed these dispositions to be amounting to gifts. In these circumstances, the mere fact that the amounts were given to the two minor sons in equal shares did not furnish any indication of a partial partition having taken place among the members of the family at the instance of the deceased. Shri A. R. Aggarwal, counsel for the accountable persons, drew our attention to a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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