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TMI Blog1982 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... handra Chokshi died intestate and left his separate and self-acquired property only. In or about January 1955 the widow relinquished her interest in the property left by her deceased husband as she decided to marry Shri Arvindbhai M. Shah willingly and started living with him. Income from the property inherited in the abovesaid manner was being assessed in the status of individual up to and including the assessment year 1974-75 and the income therefrom is being assessed as the income of HUF comprising of Bhai Rajen, his wife and their son with effect from assessment year 1977-78 as Bhai Rajen married on 12-5-1974 and was blessed with a son on 29-1-1977. 3. The dispute relates to the period of 12-5-1974 to 29-1-1977, i.e., for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartmental representative, on the other hand, contended that the mother and son living together, it at all, between 1947 to 1955 as tenants-in-common and not as joint tenants and, therefore, there was no HUF qua the property in dispute. Once it is so, be argued that the Supreme Court's decision in the case of Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 would apply. He also placed reliance on a recent decision of the Madras High Court in the case of CIT v. M. Balasubramanian [1981] 132 ITR 529 in support. In reply Shri Shah stated that the Supreme Court's decision in the case of Surjit Lal Chhabda was distinguishable inasmuch as the property in that case was not an ancestral property as in the present case. He also made an attempt to disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w which deals with such or a similar situation. Article 31 reads as under : "31. Co-heirs.---(1) According to the Mitakshara school two or more persons inheriting jointly take as tenants-in-common (n) except the following four classes of heirs who take as joint tenants with rights of survivorship : (a) Two or more sons, grandsons, and great-grandsons, who are living as members of a joint family (o), succeeding as heirs to the separate or self-acquired property of their paternal ancestor (p). (b) Two or more grandsons by a daughter, who are living as members of a joint family, succeeding as heirs to their maternal grandfather (q). The Madras High Court has held that in property inherited by two or more daughter's sons from their matern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur mind, thus, is to ignore the fact of widow mother having also inherited the Hindu Women's Estate under section 3(1) of the Hindu Women's Right to Property Act, 1937, as she has eventually relinquished her interest in the property in favour of her son and to proceed on the assumption that the son inherited the separate property of his father in 1947 or say in 1955 absolutely. No doubt as laid down in article 223 of Mulla's Hindu Law such a property is an "ancestral property" in the hands of the son, i.e., the assessee Shri Rajen Rameshchandra Chokshi. However, be being the lone individual until he married in 1974, the income from the said property was rightly assessed as his income in the status of "individual" as held by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cases, viz. : (a) where there was no past history of the property being owned by a HUF; (b) where the present owner had never shared the ownership of the property with any other coparcener in the past; and (c) where even during the year there is no other coparcener. No doubt the property in that case had come into being as a result of voluntary act of impressing separate property by a member with the joint family character as distinct from separate property of the father inherited in the case before us. However, that distinction will have no bearing on the character of the property so long as the aforesaid three facts continue to exist. 11. We have already held that there is no past history of the property in dispute being own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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