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TMI Blog1983 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... llows : " We have decided that part of the agricultural land of the HUF shown in the sketch in Black Colour plot No. 5, measuring 1,910 sq. yards (1,596.93 sq. metres) to be kept as undivided and the remaining land is divided between us as per plot Nos. 1 to 4 as shown in the sketch. " On the basis of the above partition deed, the assessee-family put in its claim for partial partition, in terms of section 171 of the Income-tax Act, 1961 ('the Act') in respect of the 4 plots of agricultural lands referred to above. The ITO rejected the above claim of the assessee by pointing out that the mother did not have the right to effect partition. He relied for the above proposition, on the decision of the Madhya Pradesh High Court in CIT v. Seth Gopaldas (HUF) [1979] 116 ITR 577. 2. On appeal, the learned AAC confirmed the aforesaid order of the ITO by relying on the decision of the Hon'ble Gujarat High Court in the case of Apoorva Shantilal Shah v. CIT [1982] 135 ITR 158. 3. The above order of the learned AAC has been assailed by the learned counsel before us by pointing out that the aforesaid decision of the Hon'ble Gujarat High Court has since been reversed by the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1956 Act read with proviso thereto and Explanation 1 thereof. 5. The matter was carried in appeal, on behalf of both the parties to the suit to the Hon'ble High Court of Bombay, who held that the widow was entitled not only to 1/24th share, being her 1/6th share in the 1/4th part of her husband's share in the HUF property, which passed on his death in terms of section 6 above referred to, but that she was also entitled to 1/4th part in the HUF property, which came to her share at the time of notional partition which took place in a accordance with Explanation 1 to section 6. [Emphasis supplied] 6. Against the above decision of the Hon'ble High Court of Bombay, the matter was carried in appeal to the Hon'ble Supreme Court. After examining the provisions of section 6, referred to above, and the proviso thereto and Explanation 1 thereof, their Lordships summarized the position as follows : " Two things are thus clear : One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th share, that is to say, 1/24th. So far there is no difficulty. The question which poses a somew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. "[Emphasis supplied] 7. From the above observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased karta and his wife, Smt. Nirmalaben Harshadrai. Each of them, therefore, got 1/5th share in all the properties of the HUF, whether movable or immovable. 1/5th share pertaining to the deceased karta devolved on his legal heirs in accordance with the provisions of the 1956 Act. There were four legal heirs to him, namely, his three minor sons and his wife. Each of them, therefore, became entitled to 1/4th share in the 1/5th share of the deceased, i.e., 1/20th of the properties of the HUF. Taking her original 1/5th share in the said properties, the share of the widow Smt. Nirmalaben Harshadrai in the properties of the HUF on the date of the death of the karta would be 1/5th plus 1/20th, i.e., 5/20ths or 1/4th. Similar would be the shares of the three minor sons. All the properties of the erstwhile HUF, thus, stood divided in equal shares amongst the widow of the deceased Smt. Nirmalaben Harshadrai and her three minor sons on the death of the karta for the purposes of Hindu law by the operation of the 1956 Act as explained by their Lordships in Gurupad Khandappa Magdum's case. 11. The aforesaid severance of the status, however, would not be of any effect for the purposes of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee put forward before the ITO, is not regarding total partition. It is only with regard to partial partition of the agricultural lands and that too with regard to four parts, out of five into which the agricultural lands have been divided. The ITO has, therefore, to satisfy himself only with regard to this claim as to whether it is genuine or not, and as to whether agricultural lands have been divided by metes and bounds between the various sharers. On the facts of the present case, as noted above, it has to be held that a partition of agricultural lands has taken place by metes and bounds and each sharer has been allotted a specified share in the agricultural lands. The condition of the division by metes and bounds, thus, stands fulfilled. That being so, the claim of the assessee with regard to partial partition of the agricultural lands cannot be denied on the ground that the partition is not valid. As noted earlier, the actual partition in the family came about by the operation of law. The mother has not effected the partition as presumed by the ITO. Severance was already there. The mother has merely put forward before the ITO the claim on behalf of the HUF consisting of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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