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TMI Blog1973 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... partition and also of assessment, the assessee's family consisted of himself and his wife. There was no issue, either male or female. In these circumstances, the question for consideration before the Appellate Tribunal was whether for the purpose of section 3 of the Act the assessee's status could be taken to be as a Hindu undivided family, as shown by him in his return, or whether his status was rightly taken to be as that of an individual by the Wealth-tax Officer, as affirmed by the Appellate Assistant Commissioner. The Tribunal followed the Bench decision of this court in Miscellaneous Judicial Case No. 193 of 1962 decided on 6th December, 1965, which decision is now reported in [1967] 65 I.T.R. 592 (Panna Lal Rastogi v. Commissioner of Income-tax). This was the case of the same assessee in respect of an earlier period. Facts, as mentioned in paragraph 4 of the report, are identical. This court held that even though the family of the assessee at the time of partition consisted of himself and his wife, the assessment must be in respect of the ancestral property of the assessee in the status of a Hindu undivided family and not as an individual. Although the point was covered dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Hindu family at page 193 in the case of N. V. Narendranath . It is, therefore, clear that a joint Hindu family is in existence if there are persons lineally decended from a common ancestor, and the wives of male members and their unmarried daughters also are included in the expression " joint Hindu family ", although they may not be coparceners. It has been repeatedly pointed out in various decisions, some of which will be adverted to by me later in this judgment, that a joint Hindu family does not cease to be in existence for the purposes of the Income-tax Act or the Wealth-tax Act by the death of a person, even though the death may be of the sole male member. Such a view has been taken, as it appears, because of two reasons, first, that so long as there is the possibility or potentiality of the birth or adoption of a person in the family the surviving member or members of the family which undoubtedly on such birth or adoption constitutes a joint Hindu family, a family which was in existence just before the death of a person, a family which may undoubtedly come into existence by birth of a person, should not be allowed to be ended by legal fiction for the interregnum. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father and the child are lineally descended from a common ancestor, namely, the grand-father of the child. But when the pair is issueless, the husband and the wife alone cannot fulfil that test, although the possibility and potentiality of the wife giving birth to a son or the spouse adopting a child in future is there, but the new family which comes into existence on partition is not a joint Hindu family. In the case of N. V. Narendranath, it has been clearly laid down by the Supreme Court that a family consisting of husband, wife and their two daughters at the time of partition is surely a Hindu undivided family for the purpose of taxation law. The Bench decision of this court in the case Hanumanmal Periwal is contrary to that decision. There is, therefore, no doubt that the decision in the case of Hanumanmal Periwal stands overruled by the decision of the Supreme Court in N. V. Narendranath's case. But, in this case, we are not concerned with the family in which there was a daughter of the assessee on the date of partition. Here, on the date of partition, the family consisted of the husband and wife alone. If the point would have been res integra, on a careful consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior advocate for the assessee, who, if I may say so with utmost respect, was considered to be a lawyer having mastery in Hindu law, did not advance the argument that on partition the family consisting of the husband and the wife itself could be treated as a Hindu undivided family. The whole of the argument advanced before the Supreme Court and which was rejected was on the theory of the son's right as a coparcener from the date he is conceived in the womb : and in that connection at the end Sikri J. (as he then was), delivering the judgment on behalf of the court, said at page 40 : " When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family." The sentences extracted above would indicate that a new family coming into existence after the partition and disruption of the old joint family, if it consists only of the husband and the wife, cannot be characterised as a Hindu undivided family. But this case was distinguished by Ramaswami J. in the case of N. V. Narendranath, and Shah J. (as he then was), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property in his hands: In N. V. Narendranath's case, however, Ramaswami J. has said at page 197: "Applying this test it is clear, though in the absence of male issue the dividing coparcener may be properly described in a sense as the owner of the properties, that upon the adoption of a son or birth of a son to him, it would assume a different quality. It continues to be ancestral property in his hands as regards his male issue for their rights had already attached upon it and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remain joint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again, the ownership of the dividing coparcener is such 'that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it' : [see Arunachalam's (No. 2) case]. It is evident that these are the incidents which arise because the properties have been and have not ceased to be joint famil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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