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TMI Blog1978 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... his firm during his lifetime. Iswardas, his wife, his three sons, and two unmarried daughters were members of a HUF. This undivided family was divided and all the properties were duly partitioned by a registered deed of partition dated February 23, 1959, in which Iswardas, his wife, his aforesaid sons and daughters were parties. This partition was duly recorded by the ITO, Darjeeling, under s. 25A of the Indian I.T. Act, 1922. Under this deed Iswardas got the aforesaid house properties and was thereafter assessed as an individual in respect of the income of these two house properties. His wife got some other properties under this deed. Similarly, his three separated sons also got some other properties and provision for maintenance was also made for his two unmarried daughters. Iswardas died intestate on June 3,1963. He left the aforesaid persons and two other married daughters. Thereafter, the widow and the four daughters relinquished their interests in all the properties which are the subject-matter of this reference in favour of the sons of Iswardas by executing deeds of disclaimer. In the assessment proceedings, the ITO held that on the death of Iswardas, his widow, thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... du Succession Act, 1956, is applicable to these two house properties and, therefore, these two properties have devolved upon the widow, sons, grandsons and the daughters of Iswardas in equal shares on his intestate death. In any event, these two properties, he argues, are ancestral properties in the hands of the sons and, therefore, their sons have acquired interest in these properties as coparceners of their respective fathers. As, to the share in the aforesaid firm, Mr. Bagchi argues that the widow, sons, grandsons and the daughters of Iswardas have inherited it under s. 9 of the Hindu Succession Act, 1956, and, in any event, this property is an ancestral property in the hands of the sons and, therefore their sons are also interested in it as coparceners of their respective fathers and accordingly the conclusion reached by the ITO was correct. As the arguments of Mr. Bagchi are fully supported by the case of CIT v. Dr. Babubhai Mansukhbhai [1977] 108 ITR 417 (Guj), he submits that we should follow it in which the Gujarat High Court has differed from the case of CIT v. Ram Rakshpal, Ashok Kumar [1968] 67 ITR 164, decided by the Allahabad High Court. He further submits that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Iswardas also did not become a father of any other son after the partition. Therefore, no one could be or become a coparcener of Iswardas relating to these two house properties. Mr. Bagchi argues that the Hindu Succession Act, 1956 (hereinafter referred to as " the Act "), does not apply to these two house properties, but at the same time concedes that the case of the department all through was that this Act was applicable to all the properties left by Iswardas. The only argument made before the Tribunal by the departmental representative, was that having regard to the provisions of s. 6 of the Act, the properties left by Iswardas must be treated as properties belonging to the HUF of the assessee and when the assessee would come under s. 6 of the Act, it is not necessary to look forward and see whether the assessee's case would be covered by s. 8 of the Act. The Tribunal, however, held that s. 8 of the Act was applicable. Therefore, this new plea is not also available to Mr. Bagchi. Even on the merits, we are not impressed by his arguments. This Act amends and codifies the law relating to intestate succession of Hindus. The provisions of Hindu law which are in any way incons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l v. Ramachandran Pillai) and quoted by the Madras High Court in Tirupurasundari Ammal v. Srinivasam Pillai, AIR 1972 Mad 264 and, therefore, it can no longer be argued that s. 6 or the proviso to it is applicable to these two house properties. Barring s. 5, this Act is a comprehensive and self contained code on all matters relating to intestate succession of all the Hindus. Section 6 deals with the coparcenary interest in the Mitakshara coparcenary property. Section 8 deals with all other properties of a male Hindu. Section 8 says that the " property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter ". It uses the words " the property of a male Hindu ". No word of limitation is attached to this expression. Therefore, this expression includes all properties, whatever their nature and character may be, except the interest of a male Hindu in a Mitakshara coparcenary property which has been taken out of the purview of this section by the main s. 6 of the Act where it applies. But, again, where the proviso to the main s. 6 is applicable, the interest of a male Hindu dying intestate in a coparcenary property must devolve by intestate success ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Schedule to the Act. In other words, they are totally excluded from inheritance not only in respect of a separate property of a male Hindu but also in respect of his interest in the coparcenary property where the proviso to the main s. 6 applies which abrogates the rule of survivorship. A married daughter and also a married daughter of a predeceased daughter of a male Hindu are heiresses under s. 8 read with class I of the Schedule to the Act. They are members of the joint family of their respective husbands. The property inherited by them either under the proviso to the main s. 6 or under s. 8 of the Act is not an ancestral property in their respective hands. They are also not coparceners of anyone in respect of any property whatsoever, for a female can never be a coparcener under the Mitakshara law. As a property inherited by a female relation is neither an ancestral property nor a coparcenary property in her hands, her sons do not acquire any interest whatsoever in that property during her lifetime. Further, s. 14 says that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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