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TMI Blog1986 (8) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 129 ITR 755 and CIT v. Narain Dass Wadhwa [1980] 123 ITR 281. In the former case, it was held that a wife cannot claim partition of the Hindu undivided family as a matter of right but the partition made by the karta was upheld on the ground that there was an earlier partition between the father and his son and as the wife had not given up her share, she was entitled to claim it even later on. On the contrary, in the later case, where the Hindu undivided family consisted of " K ". his mother and two sisters, it was held that " K " being a coparcener could claim partition and the partition made by him was upheld. In this case, " K " was the sole coparcener and there being no other person having proprietary interest in the property, partition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal who affirmed the order of the authorities below holding that neither could the wife demand partition under the Hindu law nor could the husband who was the sole surviving coparcener of the Hindu undivided family divide the family property between himself and his wife at her instance. The answer to the question referred to us obviously depends upon the nature of the rights of the wife in the property of the Hindu undivided family. It is not disputed that female members of a Hindu undivided family, according to the Hindu law, have no share in the joint family property and their interest is confined to maintenance only. As stated in para 315 of the Hindu law by Mulla, a wife cannot herself demand a partition of the Hindu un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to above. In Kundan Lal's case [1981] 129 ITR 755 (P H), the Hindu undivided family originally consisted of the father, three sons, the wife and a daughter. The three sons separated from the family on different dates and got their share out of the Hindu undivided family properties. After their separation, the Hindu undivided family consisted of the husband, his wife and their unmarried daughter. Although the wife was entitled to a share on each of the occasions when the three sons separated, none was allotted to her. Later on, a partial partition was effected by Kundan Lal between himself and his wife which was the subject matter of dispute. The Bench upheld the partial partition on the ground that when the partition took place between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffected by the karta of the Hindu undivided family between himself and the said family members. The further observation of the Bench that even if the division of the capital may be taken as a family arrangement that would also amount to a partition, cannot be sustained. The allotment of any amount to the family members out of Hindu undivided family funds would at best be settlement in lieu of the recognition of their right of maintenance which cannot by any stretch of reasoning be described as an arrangement in the nature of partition of Hindu undivided family properties. This case, therefore, was not correctly decided and is hereby overruled. Learned counsel for the assessee then referred to the following observations of this court in I. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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