1982 (8) TMI 42

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..... the assessee (hereinafter referred to as " the assessee and his wife, Vidyaben (mother of the assessee). The assessee married one Jyotiben on May 20, 1956. There was a partition of the properties of the HUF on 24th July, 1956, in which the assessee received shares worth Rs. 25,516 and cash amount of Rs. 75,000. On the next day, i.e., on July 25, 1956, the assessee settled certain properties which included the shares which he had received on the partition as aforesaid and other shares which he had received by way of gift on a trust. He executed a deed of trust settling these properties on a trust. The trust was created for the benefit of the settlor and his wife, each of whom was to be paid Rs. 100 per month out of the income of the trust up .....

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..... the property he had a wife who was entitled to claim maintenance out of the HUF property. The Tribunal negatived this contention and confirmed the view taken by the lower authorities. The assessee has challenged the view taken by the Tribunal and at his instance, the following question has been referred to us for our opinion: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that that person who, for the time being, is the sole surviving coparcener is entitled to dispose of the coparcenary properties as if it were his separate property, even though he had got a married wife and, therefore, in holding that the alienation by settling the property in trust was legal and valid ? " The man .....

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..... was made. Existence of such female member does not in any way curtail or restrict the right of the sole surviving coparcener to alienate the coparcenary property as if it were his separate property. It must, therefore, be held that the Tribunal was right in taking the view which it took. Before we part with the reference we may mention that Mr. J. P. Shah, learned counsel for the assessee, sought to challenge the alienation also on grounds other than the ground on which it was challenged before the Tribunal. We have not permitted him to do so since, as stated above, challenge to the alienation was confined to only one ground stated above. In the result, we answer the question referred to us for our opinion in the affirmative, that is, .....

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