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TMI Blog1995 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... int Hindu family by means of agreement ? (ii) Whether the female heirs of a Hindu governed by the Dayabhaga school of Hindu law dying intestate could impress upon their inherited property the character of joint family property ? (iii) Whether, on the facts and in the circumstances of the case, one-third of the properties inherited from her husband was assessable in the hands of the assessee in the status of an individual ? " For answering the questions referred for opinion, it is necessary to state the material facts in brief leading to making the reference. One Har Govind Dutta, a Hindu governed by the Dayabhaga school of Hindu law, died intestate on June 19, 1972, leaving behind his widow, Smt. Sandhya Rani Dutta (the assessee), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and her two daughters could not be treated as properties held by the Hindu undivided family. The Income-tax Officer, accordingly, assessed the income of the assessee, Sandhya Rani Dutta, including one-third of the income from the properties left by the late Har Govind Dutta, as earned in her individual capacity. The assessee preferred an appeal before the Appellate Assistant Commissioner impugning the assessment order passed by the Income-tax Officer. But the Appellate Assistant Commissioner dismissed the appeal and upheld the decision of the Income-tax Officer. The assessee, thereafter, preferred an appeal before the Income-tax Appellate Tribunal, Patna Bench, Patna, and the Tribunal by its order dated May 5, 1979, allowed the appeal ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and has to be understood in its common parlance. (ii) The Hindu undivided family is not a creature of contract and accordingly even if the existence of an agreement is accepted, it does not materially change the nature of the properties in question in the hands of the widow and the daughters. (iii) The properties in question inherited by the assessee and the two daughters in equal shares are ordinarily individual properties in the hands of the deceased and as such it could devolve in the hands of the assessee and the two daughters as individual properties. Existence of a coparcenary property is absolutely necessary before a coparcener can throw his individual property in the hotchpotch of the Hindu undivided family properties. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a separate law of devolution by succession. Those properties which were possessed by a widow as " widow's estate " became her absolute properties by virtue of section 14 of the Hindu Succession Act and succession to those properties was, therefore, regulated not by the ordinary rules of Hindu law but by section 15 of that Act. In the case of Gouri Shankar Bhar [1968] 68 ITR 345, the Calcutta High Court held that on the death of a Hindu governed by the Dayabhaga school of Hindu law, his heirs do not spontaneously, by operation of law, become members of a Hindu joint family. They remain as co-owners with definite and ascertained shares in the properties left by the deceased, unless they voluntarily decide to live as a joint family. The hei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered in the affirmative, in favour of the Revenue. Learned counsel for the assessee, on the other hand, submitted that no doubt under section 19 of the Hindu Succession Act, the heirs of a Hindu dying intestate, inherit the properties as tenants-in-common, but by agreement, the heirs may form the Hindu undivided family and the properties left by the deceased may be held in the hands of the Hindu undivided family. The Calcutta High Court, in the case of Gouri Shanhar Bhar [1968] 68 ITR 345, has clearly observed that the heirs of a Hindu dying intestate, and governed by the Dayabhaga school of Hindu law, may by agreement constitute themselves into a joint family and form the Hindu undivided family for the purpose of assessment of tax and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nants. But it cannot be said that under the Dayabhaga school of Hindu law, the Hindu undivided family cannot be formed by agreement. In my opinion, there cannot be any bar in constituting a Hindu undivided family in respect of the properties inherited by the heirs, whether female or male, of a Hindu dying intestate governed by the Dayabhaga school of Hindu law by throwing ascertained share into a common hotchpotch by agreement. In respectful agreement with the decision of the Calcutta High Court in the case of Gouri Shanhar Bhar [1968] 68 ITR 345, I hold that the heirs, whether male or female, of a Hindu dying intestate, governed by the Dayabhaga school of Hindu law, may, by agreement, become joint owner of the properties inherited by them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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