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TMI Blog1973 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ent nor a valid gift and, therefore, disallowance of interest of Rs. 2,898, Rs. 2,838 and Rs. 2,336 in the assessment for the years 1959-60, 1960-61 and 1961-62, respectively, was correctly made?" For answering the aforesaid question the following facts might be recalled. M/s. Dalichand Tejraj Pali, is a Hindu undivided family owning a business and certain immovable properties and other assets, whom we shall hereinafter call as " the assessee ". Three appeals relating to the assessment years 1959-60, 1960-61 and 1961-62, were preferred by the assessee before the Tribunal. The facts with which the Tribunal was concerned were that in January, 1941, Dalichand, the karta of the assessee Hindu undivided family, who was issueless, had adopted Tejraj, by virtue of a deed of adoption dated January 4, 1941. Some time in January, 1947, Dalichand died and Tejraj became the karta of the assessee Hindu undivided family. On October 23, 1957, a sum of Rs. 45,000 was shown as having been given to Smt. Gatkoo Bai, the widow of Dalichand, and an entry in the book was made as under: "Copy of page No. 2 Journal Samvat 2013. Dalichand Account Dr. Cr. Kartik Badi 30 Samvat 2013, dated 23-10-57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of partition. He placed reliance on Mt. Mahadei Kunway v. Padarath Chaube, Smt. Buchibai v. Nagpur University and Tek Bahadur Bhujil v. Debi Singh Bhujil . All these authorities clearly indicate the constituents of the concept of a family arrangement. He also urged that this family arrangement was as a result of the semblance of a right which resided in Smt. Gatkoo Bai of residence and maintenance. Mr. S. K. Mal Lodha, learned counsel for the revenue, urged that Kalichand and Smt. Gatkoo Bai were residents of Pali, a part of the erstwhile State of Jodhpur ; that the Hindu Women's Rights to Property Act of 1937 was not in force in the former State of Jodhpur. Therefore, no right resided in Smt. Gatkoo Bai to ask for a partition on the death of Shri Dalichand, which took place in January, 1947. The relevant section of the Hindu Succession Act, which would govern this case, would be obviously section 8, urged the learned counsel, and unless it was shown that Dalichand had left some self-acquired property in which Smt. Gatkoo Bai had any claim of succession, no right to Claim partition resided in her. The question of validity of partition was a question of law and the income-tax au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tkoo Bai in her affidavit dated September 6, 1962, submitted before the Income-tax Officer, stated that she was living separately from her son, Tejraj, since Samvat 2014 and that there were some disputes between her and the wife of Tejraj and as such she asked for separation. She further stated in that affidavit that she separated from Tejraj on Kartik Badi 15; Samvat 2014, i.e., October 23, 1957, and got Rs. 45,000 on her separation. As indicated above, Smt. Gatkor, Bai was not entitled to ask for partition nor a partition of the joint family property could be effected at her instance. Further, it has not been stated on behalf of the assessee that Smt. Gatkoo Bai, thereafter, did not continue to reside in the joint family property and her mere separate living from Tejraj could not constitute partition. Moreover, there is no material on record to show that any account of assets and liabilities of the Hindu undivided family was prepared or that the shares were defined. Mere assertion on the part of Smt. Gatkoo Bai that she separated from Tejraj having obtained a sum of Rs. 45,000 cannot constitute a valid partition according to the Mitakshara School of Hindu law inasmuch as she, bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j, which by no means can be understood to mean that she was not residing in the joint family property or was not being maintained out of Hindu undivided family funds. The assessment order passed by the Income-tax Officer, Pali, dated March 20, 1964, (annexure " C " on record), shows that besides transferring the sum of Rs. 45,000 to his mother, Smt. Gatkoo Bai, Tejraj also transferred during the same year a sum of Rs. 25,000 to his wife out of the Hindu undivided family funds. In her affidavit before the Income-tax Officer, Smt. Gatkoo Bai set out a case only of separation, in other words, of partition, and she did not allege that there was any family arrangement. It is also signifi. cant to notice that the entries made in the account books of the assessee showed that the amount of Rs. 45,000 was not taken away by Smt. Gatkoo Bai, but merely a transfer entry was recorded in her name and the amount was allowed to continue to remain in the Hindu undivided family-firm. This conduct on the part of Smt. Gatkoo Bai also goes to show that there was no real dispute with reference to property or a settlement of any doubtful claim. A valid family arrangement has been described in Halsbury's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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