9911796707
TMI Blog1981 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... udev. They constituted a joint family of Mathurdas Mansukhram. Govindbhai has four sons, namely, Kandarp, Sudbir, Pankaj and Pradeep and his wife, Ramaben. It appears that partition of the Hindu undivided family (hereinafter referred to as " the HUF ") of Mathurbhai Mansukhram was effected on April 6, 1950, in pursuance of which the aforesaid two pieces of land, inter alia, came to the share of Govindbhai. Since there was a smaller HUF of Govindbhai comprising of himself, his four sons and wife, the two pieces of land belonged to his smaller HUF. It appears further that out of the aforesaid land, a portion of land admeasuring about 5,090 sq. yards was acquired by the Ahmedabad Municipality leaving to the joint family the remaining land adme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , agreeing to divide the said land and for that matter the sale proceeds of the said land which Govindbhai had agreed to sell to Shri P. V. Patel, which he sold to the aforesaid three societies. Each one of the members was given an 1/6th share in the property which was agreed to be divided. It appears that in the course of assessments for the assessment years 1967-68 and 1968-69, a question arose relating to the aforesaid partial partition of land when Govindbhai made an application to the ITO under s. 171 of the: I.T. Act, 1961, to record a finding regarding the partial partition between himself and the members of his family. The ITO, however, rejected the application on two grounds, (i) that the amount of Rs. 2,22,950 being 5/6 ths share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of Rs. 2,22,950, which Govindbhai had agreed to pay under the said partition deed, was in fact paid to the different members as established from the different investments made by the respective members. The Tribunal, therefore, upheld the claim of the assessee that there was a valid partition effected in respect of the land in question. At the instance of the Revenue, therefore, the following two questions have been referred to us for our opinion : " 1. Whether the Tribunal was right in holding that since the assessee was not assessed prior to the assessment year 1967-68, the provisions of section 171 had no application and it was not necessary to effect physical division of the lands in question ? 2. Whether, on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion No. 1 in Income-tax Reference No. 117 of 1976 and will also consequently decide the question referred to us in Income-tax Reference No. 93 of 1976. We do not think that there is any justification for us to take any view other than what has been taken by the Tribunal on the construction of the partition deed in question. It is no doubt true that the parties did not effect a partition, by metes and bounds, of the land in question and they decided to divide the sale proceeds of the land in question which Govindbhai had agreed to sell by his agreement of September 25, 1963, to Shri P. V. Patel. In our opinion, that was the only legitimate course which the parties could have adopted, inasmuch as the only right which the family had under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenor of the properties and make them joint. Partition may be effected, inter alia, by agreement or conduct which evinces an intention to sever the status of the joint family. However, merely because one member of the family severs his relations, there is no presumption, as stated above, that there is a severance between the other members too. That question, whether there is severance between the other members is one of fact to be determined on consideration of all the attendant circumstances (vide Girijanandhini Devi v. Bijendra Narain Choudhari, AIR 1967 SC 1124 and Appovier v. Rama Subba Aiyan [1866] 11 MIA 75). The real test of an instrument of partition is whether there was any property of which the parties were co-owners which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale. It is, for all intents and purposes, a change in the mode of enjoyment. We, therefore, agree with the reasoning of the Tribunal for reaching the conclusion that the transaction in question by which the parties agreed to divide the sale proceeds of the land, for purposes of effecting a partition of the land, was valid partial partition of the property in question and, therefore, the ITO was bound to recognise and record it. We have, therefore, to answer question No. 2 of Income-tax Reference No. 117 of 1976 in the affirmative, that is, in favour of the assessee and against the Revenue. Question No. 1, in Income-tax Reference No. 117 of 1976, therefore, need not be answered. Consequently, we have also to answer the question referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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