9911796707
TMI Blog1955 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, the assessee is a Hindu undivided family and this Hindu undivided family was receiving a share in the managing agency commission of various companies which were managed by a partnership firm, and in this partnership firm, the joint Hindu family had a share, and the joint Hindu family was represented in the partnership by Charandas Haridas as the karta. What was contended before the department was that by a memorandum executed by the coparceners a partial partition of the assets of the joint Hindu family was brought about and the asset that Was partitioned was the income received from the managing agency commission and after this partial partition the income was no longer the property of the joint Hindu family but became divided in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly." Then the document ends by stating " Whatever commission is received by Charandas Haridas is to be given over to all of us according to our share. Also in the case of the commission standing in the name of Sheth Haridas Acharatlal in other remaining limited companies and in which the share of our family is ascertained in the name of Sheth Charandas Haridas as and when the same is received by Sheth Charandas Haridas he has to pay to each of us according to the share of each." Now, on this document Mr. Palkhivala contends that there was a partial partition of an asset belonging to the joint Hindu family and after this partial partition the income resulting from this asset was no longer the income of individual coparceners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may agree without interfering with the nature of the ownership to provide for a particular mode of enjoyment of the income arising from that share, and if the coparceners were to say that when the income comes in from this particular asset we will enjoy that income in a particular manner or share it in a particular manner, there is no partial partition, because the asset continues to remain, as it was before, in the ownership of the joint Hindu family. Now, in this case the signatories to the document emphasise the fact that what they are dividing, what they are dealing with, is the commission, not the share which produces this commission, and in the last paragraph of the agreement to which attention has been drawn it is expressly stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Palkhivala the income being also an asset of the joint Hindu family once the shares have been made specific and once a coparcener can predicate that he has a specific share in that income, there is a partial partition not only of the income but also of the asset which produces that income. This contention was specifically urged before the Privy Council and the Privy Council has considered this contention in two cases and emphatically negatived it. The first decision is in Sonatun Bysack v. Sreemutty Juggutsoondree Dossee [1859] 8 MIA 66. In that case a Hindu by his will gave his property to his four sons and provided for a particular mode of devolution depending upon whether the sons remained joint or separate. The sons divided the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed which partitioned various villages belonging to the family. With regard to certain villages only the income was divided, and the Privy Council considering this part of the partition deed expressed the opinion at page 92: "Nothing can express more definitely a conversion of the tenancy, and with that conversion a change of the status of the family quoad this property. The produce is no Jonger to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares." Mr. Palkhivala wants us to apply the same test here and he says that once the income doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that they intended to partition-perhaps the better expression is to divide and distribute-was the commission, the income arising out of the property, and as the earlier Privy Council case points out the mere change in the mode of enjoyment or the mere distribution or division of income for the purpose of convenience or otherwise does not result in the partition of the asset which yields the income or the produce. Going back to the question which we have to answer on this reference, we have to be satisfied that there were materials which would justify the Tribunal in coming to the conclusion that it did. In the first place, there is this document itself which has been construed by the Tribunal, and in our opinion rightly construed it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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