9911796707
TMI Blog1981 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... and a decree in terms of the award was passed by Balakrishna Iyer J., by his order dated December 19, 1956, in O.P. No. 202 of 1956. Under the terms of the award as entered in the decree, the properties which were acquired with the funds provided by Shyamalambal to Appa Rao were divided by metes and bounds and allotted to all the individual members of the family. Under the scheme of division the assessee got as and for his share 60 acres of land in Kollur Village, Ponneri Taluk, and a plot of vacant land in the City of Madras at Vepery. The assessee is married and has got children. On the facts aforesaid, the question arose in the assessments of the assessee for 1968-69 and 1969-70 whether the assessee had to be dealt with as an individual or as the karta of an HUF in respect of the income from his properties and business. The ITO took the view that although the assessee got a share of properties on a partition effected by arbitrators under an award which was made into a decree of court, the properties divided and allotted under that award could not be held to be joint family properties. The officer was prepared to concede to some extent, that the properties were jointly acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty alone can be joint family property. The position under the Mitakshara is, however, not so, for, property can be joint family property in other ways too, such for instance, as when it is acquired by joint labour of the family members or where it comes as a gift to the family as a whole. It is now well settled that there can be a gift or settlement of property for the benefit of a joint family as such. When this is the position, it matters not whether the giver is a male or a female, whether he or she is a member of the family or an outsider. What matters is the intention of the donor that the property given is for the benefit of the family as a whole. It is, therefore, mistake to suppose that property given by a female cannot be the nucleus of a joint family property. The legal position is summed up in the following passage in Mayne's Hindu Law, 11 th Edn., as follows: " Property may be joint property without having been ancestral. Where the members of a joint family acquire property by or with the assistance of joint funds or by their joint labour or in their joint business or by a gift or a grant made to them as a joint family, such property is the coparcenary property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired property but acting always under the guidance and help of the senior most member of the family, K. Satyanarayana, he did various transactions which were clearly intended for the benefit of the entire family. " The arbitrators awarded partition of the properties only on the basis aforesaid, and it was on that basis, their award was passed by this court into a decree. In the face of the clear finding in the award that Shyamalambal gave the funds to Appa Rao, not for his individual use or appropriation, but for the benefit of the family as a whole, there can be no mistaking the real character of the funds in the hands of Appa Rao. That Appa Rao accepted the funds on those terms and on no other, is also clear from the fact that right from the beginning, he had been disclaiming any separate dominion, not only over the funds provided by his mother but also from the other acquisitions he made by exploiting those funds. The Tribunal had expressed the view in one part of their order that Appa Rao's attitude in disclaiming any separate interest in the properties, was only a " negative " virtue. May be it was, but that is sufficient for the purposes of the law. Even for throwing a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparcener in a Mitakshara joint family, and not to a female member, who is not strictly a coparcener. She, accordingly, submitted that the initial transfer of funds by Shyamalambal cannot have the effect of rendering the funds transferred to be the nucleus of joint family property to which the subsequent acquisitions could be traced so as to make them all joint family estate. Learned counsel relied on CIT v. Dr. (Mrs.) Sita Bhateja [1973] 91 ITR 193 (Mys). In that case the Mysore High Court expressed the view that the right to throw self-acquired property into the family hotchpot was available only to a co-parcener, and not to a female member of a joint family. The assessee, in the case before that court, was a female member of a joint family. On a question which arose in connection with her assessment, the court held that she cannot ask the I.T. authorities to treat her own separate property as joint family property merely because she had purported to throw that property in the joint family hotchpot. In so far as the Mysore High Court held that a female member of Mitakshara family cannot purport to throw her own separate property into the joint family hotchpot as a means of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such a gift beneficial to the family in its entirety, merely because she happens to be a member thereof. In such a case, if the intention were clear, the gift would be regarded as a gift to the joint family as such and not merely to the collection of individuals, who happen to make up the joint family at the moment of the gift. If the property thus becomes the property of the joint family, it is susceptible to all the incidents of coparcenary property thereafter, including such incidents as right by birth, right to partition, the amenability of the property to constitute itself as nucleus for further acquisitions to the joint family estate and the like. Having regard to the legal position, which we have summarized above, and on a plain reading of the order of this court in 0. P. No. 202 of 1956, we are satisfied that the funds which Shyamalambal gave to Appa Rao was joint family property even at its inception. It follows that the other properties which Appa Rao acquired with those funds also partook of the character of the properties belonging to the joint family. The partition under the arbitrators' award was thus a partition of joint family properties. That any property all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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