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TMI Blog1979 (7) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... amily and there was neither severance of status nor determination of shares of various other coparceners at that stage. On 27th July, 1958, the second son, Shri Raj Kumar, separated from the family. On 14th February, 1966, the third son, Shri Vijay Kumar. also got separated from the family. After the separation of the third son, Shri Vijay Kumar, the family was reduced, to Shri Kundan Lal, his wife, Smt. Kailash Wati and their unmarried daughter, Miss Arun. When the three sons of Shri Kundan Lal were separated from the family as mentioned above, Smt. Kailash Wati, wife of Shri Kundan Lal, was not given any share in the joint family property. On 10th March, 1967, a partial partition is alleged to have taken place between Shri Kundan Lal and his wife, Smt. Kailash Wati, vide registered deed of that date. The assessee made an application under s. 171 of the I.T. Act for recognition of the partial partition and also claimed exclusion of the income from the assets which were to have become the separate properties of both Shri Kundan Lal and Smt. Kailash Wati consequent to the alleged partial partition. In the wealth-tax proceedings, it was similarly claimed that the value of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition by agreement. (4) That Smt. Kailash Wati could not claim or obtain a partition from her husband with regard to any property in general and certainly not in regard to the property owned by the husband as a sole surviving or single coparcener. Thus, having recorded the aforesaid finding, the Tribunal rejected the assessee's pleas. The assessee then made a reference application before the Tribunal praying that the question of law which does arise, be referred to this court for its opinion. The said question has been printed in Wealthtax References Nos.1 to 5 of 1973, which is as follows: " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in rejecting the claim of partial partition between Shri Kundan Lal and his wife, Smt. Kailash Wati ? " The assessee moved this court under s. 256(2)/27(3) of the I.T. Act, 1961/W.T. Act, 1957, with the prayer that the Tribunal be directed to refer the following additional question of law to this court for its opinion., " Whether, on the facts and in the circumstances of the case, the Tribunal was right in upholding the inclusion in the assessment of the appellant (HUF) the value of house pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e settled law that it is not necessary that the wife must claim a share in the property simultaneously when the son gets the share in partition, but, if she is able to show that she did not acquiesce in the partition, she could claim a share even at some subsequent stage by way of a suit or by laying a claim which may be accepted by other members of the family. Reference in this connection may be made to a Division Bench decision of the Nagpur High Court in Mt. Radhabai v. Pandhari Nath Bapu Narayan Bapu Palar, AIR 1941 Nagpur 135, and a decision of the Allahabad High Court in Partap Singh v. Dalip Singh, AIR 1930 All 537. It is in the background of these propositions of law, which are very well established that we are required to answer the question of law referred to us for our opinion keeping in view the facts and circumstances of the case. We are inclined to agree with the contention of Shri Bhagirath Dass, the learned counsel for the assessee, that Smt. Kailash Wati was entitled to get the share in the property at, the time when the partition was claimed by her sons. We are also inclined to agree with his contention that even at a subsequent stage if she decided to assert h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the quantum of properties during the intervening period. Thus, the alleged giving of one half share of the wife as on 10-3-67 cannot be equated to the reopening of any earlier partition. Apart from this, as stated earlier in this case, no such partition has so far and at any time taken place and in any case the claim now before the Income-tax Officer for a partition between the husband and wife as on 10-3-67, could not be construed as a claim of the wife for a reopening of the earlier partition." The assessee was not satisfied with this finding and in the grounds of appeal before the Appellate Tribunal, a similar plea was again raised and the Appellate Tribunal recorded a finding of fact in the following words: " We, therefore, agree with the contention of the revenue in this connection that no evidence having been led to show that, (a) Smt. Kailash Wati had demanded a reopening of the partition, (b) erstwhile coparceners had agreed to reopen the partition, and (c) there was as a consequence readjustment of partition. On the contrary, we find that the partition dated 10-3-67 was sought to be effectuated as an independent event where not only the nature of the partition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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