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TMI Blog1978 (5) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... e negative, whether the bequest made by the testatrix in respect of the amount due to her from the firm M/s. Rameshwar Dass Hari Shankar, Ahmedabad, the joint family property of the HUF consisting of Shri Ghansham Dass, his wife and his daughter ? (iv) If the answer to question No. (ii) is in the negative, whether the bequest made by the testatrix in respect of the amount due to her from the firm, M/s. Rameshwar Dass Hari Shankar, Ahmedabad, the property of the individual, Shri Ghansham Dass ? The assessee is an individual having, according to his return, share income from three partnership firms, two namely, M/s. Rameshwar Dass Ram Saran Dass and M/s. Kirori Mal Devi Sahai, carrying on business at Delhi, and one, namely, M/s. Bharat Metal Industries, carrying on business at Bhiwani. The assessee's share in the said three firm's profits was 17%, 25% and 15%, respectively. The relevant previous years, as contemplated under s.3(1)(f) of the I.T. Act (hereinafter referred to as " the Act "), ended on March 31, 1969, and March 31, 1970, respectively, in respect of the said sources of income. The assessment was completed by the ITO on January 24, 1970, at a total income of Rs. 28,36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l amount due to her thus came to Rs. 31,332.57. The said amount stood transferred to the account of the HUF of Messrs. Ghansham Dass Gaja Nand on November 16, 1967. After taking into consideration the law and the facts, the Tribunal held that the will, annex. " J ", was to be treated as having been executed by Smt. Manbhawati Devi, that the said will suffered from no legal infirmity ; that Ghansham Dass, the respondent, formed a HUF along with his wife and minor daughter ; that the property bequeathed by Smt.Manbhawati Devi, as per her will, annex. " J " in favour of the HUF headed by Ghansham Dass as karta, did not become the joint family property inasmuch as Smt.Manbhawati Devi not being a coparcener of the said family could not convert the property into joint family property of that family ; that the property bequeathed became the joint property of the three individuals, namely, Ghansham Dass, his wife and their minor daughter in equal shares ; that the one-third portion of the property bequeathed by Smt.Manbhawati Devi (to the extent of the amount due to her from M/s. Rameshwar Dass Hari Shankar, Ahmedabad) which came to belong to Ghansham Dass was thrown by him into the hotc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter could not, in law, acquire the character of joint family property in the hands of the said HUF. Thus, the case before the Tribunal proceeded on the assumption that there existed a HUF of Ghansham Dass, his wife and unmarried daughter. Moreover, even legally, such a plea is untenable as the plain truth is that the joint and undivided family is the normal condition of Hindu society. The presumption, therefore, is that the members of a Hindu family are living in a state of union unless the contrary is stated. Generally speaking, the normal state of every Hindu family is joint and, in the absence of proof of division, such is the legal presumption. According to para. 212 of the Hindu Law by Mulla, the joint and undivided family is the normal rule. On this aspect of the matter, the observations of their Lordships of the Supreme Court in Surjit Lal Chhabdha v. CIT [1975] 101 ITR 776, 781, may be quoted With advantage : " There is no substance in the contention of the respondent that in the absence of an antecedent history of jointness, the appellant cannot constitute a joint Hindu family with his wife and unmarried daughter. The lack of such history was never before pleaded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by pasting over the wider phrase of the Act the words "Hindu coparcenary", all the more that it is not possible to say on the face of the Act that no female can be a member. ' Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. 'The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Hindu undivided family as an assessable entity must consist of at least two male members.' In N. V. Narendranath v. Commissioner of Wealth-tax [1969] 74 ITR 190 (SC), the appellant filed returns for wealth-tax in the statuts of a Hindu undivided family which at the material time consisted of himself, his wife and two minor daughters. The claim to be assessed in the status of a Hindu undivided family rested on the circumstance that the wealth returned consisted of ancestral property received or deemed to have been received by the appellant on partition with his father and brothers. The High Court held that as the appellant's family did not have any other male coparcener, the assets must be held to belong to him as an individual and not to the Hindu undivided family. That decision was set aside by this court on the ground that a joint Hindu family could consist under the Hindu law of a single male member, his wife and daughters and that it was not necessary that the assessable unit should consist of at least two male members. In both of these cases, Gowli Buddanna [1966] 60 ITR 293 ; [1966]3 SCR 224 and Narendranath [1969] 74 ITR 190 ; [1969] 3 SCR 882, the assessee was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e HUF was the creation of the will is wholly untenable. In this view of the matter, the answer to question No. (i) is returned in the affirmative, i.e., against the revenue. Having recorded the above answer on question No. (i), it has now to be found out whether the Tribunal was legally justified in holding that the property in question, though legally bequeathed by Smt. Manbhawati Devi in favour of Ghansham Dass, his wife and their minor daughter, did come to belong jointly to the said three individuals and it did not acquire the character of joint family property of the HUF constituted by the said three individuals. The contention of Mr. Awasthy, learned counsel for the revenue, was that the property bequeathed by Smt. Manbhawati Devi would be deemed to be joint family property and that the same could not be treated as the joint property of the three individuals, i.e., Ghansham Dass, his wife and their unmarried daughter. This contention of the learned counsel for the revenue was not controverted by Mr. B. S. Gupta, learned counsel for the assessee. Even otherwise, we find that the property bequeathed by Smt. Manbhawati Devi would become the joint family property. Smt. Manbha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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