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TMI Blog1982 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ty only. In or about Jan., 1955 the window 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 above said manner was being assessed in the status of individual upto and including the asst. yr. 1974-75 and the income therefrom is being assessed as the income of HUF comprising of Bhai Rajen, his wife and their son w.e.f. asst. yr. 1977-78 as Bhai Rajen married on 12th May, 1974 and was blessed with a son on 29th Jan., 1977. 3. The dispute relates to the period from 12th May, 1974 to 29th Jan., 1977, i.e. for asst. yrs. 1975-76 and 1976-77. In other words, the dispute is whether after Bhai Rajen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 947 to 1955 were tenants-in-common and not joint tenants and, therefore, there was no HUF qua the property is dispute. Once it so, he argued that the Supreme Court's decision in the case of Surjit Lal Chhabda vs. CIT 1976 CTR (SC) 140 : (1975) 101 ITR 776 (SC) would apply. He also placed reliance on a recent decision of the Madras High Court in the case of CIT vs. M. Balasubramaniam, (1981) 132 ITR 529 (Mad) 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 distinguish the Madras decision. 6. Having hear the parties and after going through the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing jointly take as tenants-in-common (n) except the following four classes of heir 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' sons from their maternal grant mother there can be no right of survivorship and the daughter's sons take as tenants in common (z). The decision in Venkayyamma vs. Venkataramnayyamma (q) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Art. 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, he 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 Court in the case of C. Krishna Prasad vs. CIT 1975 CTR (SC) 7: (1974) 97 ITR 493 (SC). 9. So far so good. Now, we come to the point to issue involved in this appeal. We have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ownership of the property with any other coparcener in the past; and (iii) 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 3 facts continue to exist. 11.We have already held that there is no past history of the property in dispute being owned by an HUF or the present owner having shared the ownership of the property with any other coparcener. There is admittedly no other coparc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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