9911796707
TMI Blog1995 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner ? (2) Whether, in the circumstances of the case, was the Tribunal correct to hold that by separation of karta by taking away his share out of the assets subject-matter of partition among the members of the family a smaller Hindu undivided family comprising of mother and son cannot continue under the Hindu law ? " We have heard learned counsel for the assessee, Sri R. S. Agarwal and learned counsel for the Revenue, Sri Ashok Kumar. The assessee is a Hindu undivided family consisting of Sri Ram Nath, his wife, Smt. Ramshri, and their son, Sri Om Prasad. The dispute relates to the validity of a partial partition by which it was alleged that the karta, Sri Ram Nath, separated from his wife and son by taking away Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther not to take her share and remain joint with the son, because what is being divided is the coparcenary property and she has no say in the matter of the division. If the two coparceners decided to separate, the division takes place. As noted above, the mother may choose to take nothing on a partition, but she cannot say that she will take her share and keep it joint with the son, separating from the father and forming a smaller Hindu undivided family with the son. The basic family unit consisted of the father and the mother, and not of the mother and the son. The father can get separated, as noted above, from the son giving in the process her rightful share to the mother, but it is not conceivable in law that he separates from his wife a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and unmake family units in all sorts of permutations and combinations at will. We, accordingly, reverse the order of the Appellate Assistant Commissioner. A perusal of the Tribunal's findings and observations, as reproduced above, would show that the Tribunal misdirected itself in basing its findings on an irrelevant aspect, i.e., whether the sum of Rs. 20,000 having been jointly taken by the mother and the son, they could legally constitute another Hindu undivided family. Learned counsel for the assessee placed reliance on Tulsidas Kundanmal v. CIT [1987] 163 ITR 810 (MP) in which it was held that the mere fact that the wife of the karta chose to reside with her sons and not with her husband would not make the partial partition illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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