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TMI Blog1983 (1) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... her than that for the individual; that is why the controversy. On appeal, the AAC agreed with the WTO that the assessee cannot be said to constitute a Hindu "undivided family merely because she had a daughter. On further appeal, the Tribunal, purporting to follow the decision of the Supreme Court in Smt. Sitabai v. Ramchandra, AIR 1970 SC 343, held that the assessee, together with her daughter, can be said to constitute an HUF and must be assessed as such. Thereupon, the Revenue asked for and obtained this reference. A fact which requires to be stated for the sake of clarity is that the assessee's husband died prior to the coming into force of the Hindu Succession Act. This fact was stated by the counsel for the assessee before us, after due verification. Once the partition took place between Chinna Ventaka Subbaiah and the assessee, she became the absolute owner of the property which fell to her share, by virtue of s. 14 of the Hindu Succession Act. According to s. 14, any property acquired by a female by way of a partition becomes her absolute property. It is true that according to s. 8 of the Hindu Adoptions and Maintenance Act, the assessee is competent to adopt a boy, but su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malabar) consisting of persons descended from female ancestress. If Parliament intended that this new type of Hindu joint family should also be recognised as a Hindu undivided family when it passed the Wealth-tax Act in 1957, it would surely have made its intention clear by giving separate definition in the appropriate section of that Act. " That was also a case where a Hindu widow succeeded to the properties which her deceased husband had obtained on partition and had become the absolute owner of such properties under s. 14 of the Hindu Succession Act. She was having a minor unmarried daughter entitled to maintenance from the assessee. Her contention was that she along with her minor unmarried daughter constituted an HUF for the purposes of the W.T. Act, 1957. On the reasoning mentioned above, the plea was negatived. We must now deal with the decision of the Supreme Court in Smt. Sitabai v. Ramchandra, AIR 1970 SC 343, from which the Tribunal has derived a principle contrary to the one we have stated above. It is necessary to briefly state the relevant facts to understand the principle enunciated therein. Dulichand and Bhagirath were brothers owning certain ancestral propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the adopting mother but also the adoptive father though the adoptive father may not have been alive on the date of adoption. But the Supreme Court had no occasion in this case to consider whether the adopted son divests the adoptive mother of the properties of which she is the absolute owner and/or whether the adopted son gets share in the properties in the hands of the adoptive mother, by virtue of the adoption. The main distinguishing fact in the Supreme Court case is that on the date the 2nd plaintiff was adopted by Sitabai, Dulichand was alive and because Sitabai was alive and was entitled to maintenance out of the properties of which her husband was a coparcener, the character of the properties in the hands of Dulichand remained to be joint family properties. If so, the 2nd plaintiff on his adoption became a coparcener entitled to half share in all the joint family properties. But that is not the situation here. Here the assessee has become the absolute owner and even if tomorrow she adopts a boy the adopted son would not, by virtue of the adoption, divest her nor would he have any rights in the assessee's properties by virtue of the adoption. We are, therefore, unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divesting and hence the widow cannot say that because she can make in adoption and thus bring a family into existence she must be assessed as an HUF. Mr. Dasaratharama Reddy, counsel for the assesses, relied upon decision of the Patna High Court in Savitri Devi v. CIT[1976] 104 ITR 385. That was also a case where a Hindu widow, who had become the absolute owner of her husband's property by virtue of s. 14 of the Hindu Succession Act, made an adoption after the coming into force of the Hindu Adoptions and Maintenance Act, 1956, and thereafter claimed that she must be assessed as ail HUF. This claim was negatived by the W.T. authorities as well as the Tribunal. On a reference, the Patna High Court held that when the widow adopted the boy and she had ail unmarried (laughter in existence a joint Hindu family came into existence, even assuming that it was not existing before. It was therefore observed that she must be assessed as an HUF. Having so held, the court went further and observed (p. 388): " I would also like to add that even without the adoption, on certain authorities of the Supreme Court and this court, a joint Hindu family was in existence consisting of the widow of Atm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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