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TMI Blog1979 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... , his two wives, Venkatammal and Seethammal, and their four sons constituted a HUF of which Sannanna Chettiar was the karta. He was being assessed in the status of a HUF for the purpose of income-tax. There was a partition in the family on 19th April, 1951, by a partition deed. Under the said partition deed all the properties were divided between Sannanna Chettiar and his four sons and there was also a provision that the properties set out in sch. 'B' to the partition deed and allotted to the share of Sannanna Chettiar would devolve, on his death, on his two wives, Seethammal and Venkatammal, to be enjoyed by them for their lives and thereafter on the four sons absolutely. The sons too effected a division of the said properties subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int family, after the partition of 1951, consisted of only Sannanna Chettiar and his two wives and on the death of Sannanna Chettiar and the other wife, the family ceased to exist. It was, therefore, submitted that there can be no assessment on the income as there was no machinery for this purpose. For the department, the submission was that the joint family continued to exist until an order under s. 171(1) of the Act recognising the partition of the family was passed and that the deeming provision of s. 171 of the Act would apply here so as to enable the assessment being made on the family as such. It is this controversy that is now to be resolved. There can be no dispute about the income being assessable in the hands of Sannanna Chettia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of the Act to continue to be a HUF, except where and in so far as a finding of partition had been given under that section in respect of the said family. As there was no finding of partition in the present case, it was contended that the family could be assessed. We do not agree. The continuity of assessment in a family can come to an end by the disappearance of the family as such and not necessarily by an order under s. 171. Moreover, s. 171 proceeds on the postulate that there exists a family which consists of more than one individual. If there is no family as such, then there is nothing in s. 171(1) to create a legal fiction of the existence of a family. The family here had been reduced to a single individual and a single individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily. It must be observed that it was the same undivided family of which the son when alive was a member and of which the continuity was preserved after the father's death by the adoptions that have been mentioned, for, his death did not put an end to the family line. Gratiaen J., in his judgment in the Supreme Court, quotes the language of this Board in two cases which appear to be apt to the present appeal. In Pratopsing Shivsing v. Agarsingji Raisingji [1918] LR 46 IA 97, 107, it was said, ' Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible' and in Anant Bhikkappa Patil v. Shankar Ramchandra Patil [1943 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to look to the relatives as they exist at present and it would not be correct to project into the matter future possibilities which might or might not materialise. This would indeed amount to speculation and the same is not permissible. Excursions to the realm of speculation may be legitimate and justified when one is engaged in the study of philosophy and metaphysics; they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this purpose we have to look to facts as they exist and emerge from the record and not to what they may or may not be in future. " Having regard to the above passage and the fact that there was single individual here in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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