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TMI Blog1990 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... es income from house property and business. Shri Tunki Sah was the karta of the Hindu undivided family consisting of himself, his wife, Smt. Budhi Devi, and his son, Shri Baidyanath Prasad Sah. Shri Tunki Sah died in the year 1955 and, thereafter, Baidyanath Prasad Sah became the karta of the Hindu undivided family consisting of himself, his mother, Smt Budhi Devi, and his wife, Smt. Godabari Devi. Smt. Budhi Devi died in the year 1960 and the Hindu undivided family continued with the remaining members. In the return filed on behalf of the assessee for the assessment years in question, it was contended by the assessee that on the death of Tunki Sah, his widow, Smt. Budhi Devi, succeeded to half share in the Hindu undivided family property with limited interest but, on the coming into force of the Hindu Succession Act, 1956, she became the absolute owner of that property and that, on the death of Smt. Budhi Devi, Baidyanath Prasad Sah succeeded to her property in his individual capacity. It was further contended that, on May 3, 1969, Baidyanath Prasad made a gift of the property to which he had so succeeded on the death of his mother to his adopted son, Nand Kumar Prasad Sah. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, contended that the interest of Smt. Budhi Devi in the Hindu undivided family property, though limited prior to the coming into force of the Hindu Succession Act, 1956, became her absolute property and that the Tribunal was right in holding that her son, Baidyanath Prasad Sah, succeeded to the property left behind by her and was, therefore, competent to make a gift of that property in favour of his adopted son. As regards the applicability of section 171 of the Incometax Act, learned counsel contended that that provision was not attracted in the instant case. Now, in the instant case, it cannot be disputed that, after the death of Shri Tunki Sah in the year 1955, his widow, Smt. Budhi Devi, acquired the interest of her deceased husband in the coparcenery property, including the right to claim partition. It is also a fact that she did not claim any partition. As held by the Supreme Court in Potti Lakshmi Perumallu v. Potti Krishnavenamma, AIR 1965 SC 825, like other coparceners of a Hindu coparcenery, the interest of a widow, until separated by a partition, continued to be a fluctuating one which was liable to increase or decrease with the deaths or additions in the family. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of partition, there was no severance of the Hindu coparcenary and on her death the interest of the widow merged in the coparcenary property or lapsed to the other coparceners. It is, however, urged on behalf of the assessee that the aforesaid decisions are not applicable after the coming into force of the Hindu Succession Act, 1956. It is contended that the effect of section 14(1) of the Hindu Succession Act, 1956, is that even if Smt. Budhi Devi had not chosen to claim partition, the interest which she possessed at the time of commencement of the Hindu Succession Act, 1956, having become enlarged into an absolute estate, she became the absolute owner of half the share in the Hindu undivided family property and her son, Baidyanath Prasad Sah, succeeded to that property which could be validly gifted by him to his adopted son. Reliance was placed on the decision of the Madras High Court in M. V. Chockalingam Pillai v. Alamelu Ammal, AIR 1982 Mad 29 wherein it has been held that the decision in Parappa alias Hanumanthappa v. Nagamma, AIR 1954 Mad 576 [FB], approved by the Supreme Court in Satrughan Isser v. Sabujpari, AIR 1967 SC 272, was no longer applicable after the coming into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Hindu Women's Rights to Property Act, 1937. In the instant case, however, it is not necessary to deal with this aspect of the matter any further because, even assuming that there was a notional partition on the death of Tunki Sah and his widow succeeded to half the share in the Hindu undivided family property, as contended on behalf of the assessee, no such claim was, at any time, made before the Income-tax Officer as provided by section 171 of the Act. The relevant provisions of section 171 of the Act are as follows "171. Assessment after partition of a Hindu undivided family. -(1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family. (2) Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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