9911796707
TMI Blog1981 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... he estate of the deceased and that the wife of the deceased had no interest in the estate brought to tax ? " At the time of hearing of this reference, the learned Advocate-General appearing for the assessee raised the following two contentions: (1) On a true construction and effect of the deed of partition effected between the assessee, Saremal, and his two sons of July 25, 1957, the deceased and his wife took the remaining properties other than those allotted to the sons as tenants-in-common and, therefore, on the death of Saremal the interest of his widow in the properties could not and did not pass and, therefore, could not be brought to tax. (2) Assuming without admitting that the document in question constituted a deed of relinquishment of the rights and interests of two sons, the remaining properties being joint family properties she would be entitled to 1/2 share in the properties under section 6 of the Hindu Succession Act. Before we deal with the contentions urged by the learned Advocate General on behalf of the accountable person, it would be profitable to refer to what the Tribunal has decided in its order while it rejected the appeal of the accountable person. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1958-59, the ITO had recognised this partition in question effected on July 25,1957, and an order in that behalf had been made under s. 25A of the Indian I.T. Act, 1922. In our opinion, the first contention of the learned Advocate-General is well founded and, therefore, we are not inclined to go into the second contention urged in the alternative by him. If the document entitled as the partition of the joint family properties executed on July 25, 1957, is recognised by the ITO as a partition under s. 25A of the Indian I.T. Act, 1922, we do not think that any exception could be raised on the first contention of the learned Advocate-General. In Addl. ITO v. A. Thimmayya [1965] 55 ITR 666 (SC), as to what is the scheme of s. 25A of the Indian I.T. Act, 1922, has been considered and Shah J. (as he then was), speaking for the Supreme Court, analysed it as under (p. 671): " The scheme of section 25A is therefore clear: A Hindu undivided family hitherto assessed in respect of its income will continue to be assessed in that status notwithstanding partition of the property among its members. If a claim is raised at the time of making an assessment that a partition has been effected, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the expression 'group of members' will be meaningless in relation to a Hindu family governed by the Dayabhaga school of Hindu law. But an order recording partition can be made only if the properties of the joint family are partitioned in 'definite portions', that is, the properties are physically divided if they admit of such division, otherwise, in such division as they admit of. In Gordhandas T. Mangaldas v. Commissioner of Income-tax [1943] 11 ITR 183, the High Court of Bombay held that section 25A contemplates a physical division of the joint family property; a mere division of interest in such property is not enough. Beaumont C. J., in delivering the judgment of the court, observed at page 195 : I think that the expression " definite portions ", indicates a physical division in which a member takes a particular house in which he can go and live, or a piece of land which he can cultivate, or which he can sell or mortgage, or takes particular ornaments which he can wear or dispose of and that the expression " definite portions " is not appropriate to describe an undivided share in property., where all a particular member can claim is a proportion of the income, and a divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that there is no presumption either way, when one member separates from the others, about the status of the remaining members of the family. There is no presumption that they remain united or not. It must be decided on the facts of each case (vide Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287). Partition of a joint Hindu family consists in ascertaining and defining the shares of the coparceners in the joint property and actual division of the property by metes and bounds is not necessary to constitute partition. The division of the said properties by metes and bounds may take place subsequently. Even their residing together after such partition and enjoyment the properties jointly would not change 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 a severance between the other members is one of fact to be determined on a consideration of all the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been divided by metes and bounds between them, the said group could not be assessed as members of an HUF because such a relationship did not exist between them after severance of the joint family status of which Chinubhai was the karta. Having realised this difficulty, the learned counsel for the revenue urged that at the time when actual partition by metes and bounds was effected by the deed of July 25, 1957, all the remaining properties other than cash, shares,etc., allotted to the two sons were allotted as the sole and exclusive properties of deceased Saremal, and his wife was not allotted any share or interest therein. This contention had not been urged in terms before the Tribunal. However, we have considered this contention as an aspect of the larger question; whether the remaining properties in question were, under the said deed of partition, allotted to deceased Saremal alone. We are of the opinion that even on a reading of the deed of partition we do not think that this contention is warranted. In para. 1 of the deed of partition, the names of the members of the family have been mentioned. In para. 2 the properties of the family have been specified. Para. 3, which is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in connection with the business concerns of the joint family that the business of Saremal Bhimraj was to be managed by Saremal and all the liabilities in connection with the said business were that of Saremal; while the other joint family business under the name and style of Ratanchand Jethmal together with all the pending litigations in connection therewith were to be converted into a partnership firm consisting of the deceased Saremal and his two sons, Bhimraj and Jugraj, as partners with effect from Ashad Vad 14, S.Y. 2013. Another para. on which reliance has been placed in this behalf is para. 11 of the partition deed. It provided that all the immovable properties would be of the ownership of Saremalji irrespective of the fact as to in whose name they stood. We do not think that either of the paras relied upon can lead us to the conclusion that Bai Varju the widow of deceased Saremal had no right or interest in the properties. On a true construction of the partition deed, we are of the opinion that para. 3 of the said deed provides for the allotment of the properties between each of the two sons on the one hand and the deceased Saremal and his wife on the other. The provision m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
