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TMI Blog1992 (7) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal held that the existence of a wife does not make the income derived from the erstwhile ancestral property as that of the Hindu undivided family and, accordingly, the share income belonged to the assessee as an individual. In Krishna Prasad (C) v. CIT[1970] 75 ITR 526 (Mys), Krishna Prasad was the sole individual who obtained the property on a partition. There was no other member in his family. This court held that (at page 527) : " In order to constitute a Hindu undivided family, it is not necessary that there must be at least two male members. A coparcener with his wife and unmarried daughters can constitute a Hindu undivided family as held by the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293." The Bench further pointed out that in Gowli Buddanna's case [1966] 60 ITR 293, the Supreme Court held that the expression " Hindu undivided family" in the Income-tax Act, 1961, is used in the sense in which a Hindu joint family is understood under the personal law of the Hindus. But, under Hindu Law, a male member of a joint Hindu family obtaining a share on partition by himself would not constitute a Hindu undivided family, when he marries and has a wife, he would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y succession (see page 272 of Mulla's Principles of Hindu Law, 14th Edition). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand for a son cannot object to alienations made by his father before he was born or begotten (see page 320 ibid). In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly no female member in existence who is entitled to maintenance from the above-mentioned property or who is capable of adopting a son to a deceased coparcener. Even if the assessee-appellant in future introduces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be affected. Such a new member on becoming a member of the coparcenary would be entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me being. A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. While considering the question whether the assets that came to the share of the appellant ceased to bear the character of the joint family properties, the Supreme Court pointed out that a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him : (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee, and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee. The Supreme Court further pointed out that the real question to be asked is whether the property retains the character of joint family property or whether it sheds the character of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances the power to alienate joint family property. That is what it is until he alienates it and, if he does not alienate it, that is what it remains . . . It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family. " The Supreme Court held that the basis of this decision was that the property which was the joint family property of the Hindu undivided family did not cease to be so because of the " temporary reduction of the coparcenary unit to the character of a single individual " and that the character of the property, viz., that it was the joint property of a Hindu undivided family remained the same. Proceeding further, the Supreme Court held at page 197: "....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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arta of the Hindu undivided family. It is also necessary to note that, at any particular moment of time, the assessee can induct a coparcener into the family by adopting a son or there may be a birth of a son to the assessee and, in such a situation, a coparcener would enter the joint family. The decision of this court in Krishna Prasad's case [1970] 75 ITR 526 is a direct authority to hold that an ancestral property coming into the hands of a person who has no other member in his family will be held by him as an individual ; if so, there is no reason as to why property treated as an individual property only because there is no other member in the family should not gain the character of Hindu undivided family property on the induction of a member resulting in the creation of a joint family. Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 is a decision of the Supreme Court involving a slightly different set of facts. That was a case where a property which was a self-acquired property was thrown into the family hotchpot in order to impress that property with the character of joint family property. The set of facts involved here is the first set out of the two classes stated by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property by the assessee after her marriage. Plainly the answer has to be in the negative. Admittedly, as yet, there is no child of the wedlock and even if the wife has no right to assail any alienation, one of the basic concepts of limited ownership in a Hindu undivided family would be conspicuous by its absence. Therefore, on this touchstone as well, mere marriage by itself would not convert separate property and individual income-tax status to that of Hindu undivided family. " We are of the view that it is entirely irrelevant as to whether the wife could have challenged the alienation if the assessee alienated the property after the marriage. The test is whether she is a member of the family and has a right to seek a charge on the family property for her maintenance in case there is an occasion for her to do so. The Full Bench of the Patna High Court further relied upon Surjit Lal Chhabda's case [1975] 101 ITR 776 (SC), to which we have already referred. No importance was given to the following sentence : " There is admittedly no female member in existence who is entitled to maintenance from the above-mentioned property or who is capable of adopting a son to a deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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