9911796707
TMI Blog1989 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... d so but rejected the assessees claim of partition. The WTO do so but rejected the assessees claim for partition and included the value of that property in the assessee's wealth. 2. The property in question is fully rented out chawls. It was owned by the HUF of one Kunverji Sawaji, the father of the Karta of the present HUF Lakhaji Sawaji and his brother Dhanraji Kunwarji. The claim to the partition was that there was verebal agreement for that partition in 1968 and it was put into writing by declaration dt. 4th April, 1969. The partition could not be effected by metes and bounds because of the nature of the property. Before the WTO the assessee filed affidavits of all the coparceners of the HUF of the son of the Karta of the HUF of Lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1947 respectively. According to the provisions of Hindu Succession Act, this property could only be treated as belonging to the respective HUF's of Shri Mohanbhai, son of Lakhaji Kunvarji, revachandbhai, son of Lakhaji Kunvarji and Jawarbhai, son of Dhanaji Kunwarji. The affidavit is only confirming the legal position regarding the ownership and the survivorship in respect of this property. It is immaterial whether this partition was actually done or not because in absence of such a partition also, this property cannot be said to be owned by anybody else except the HUF status of the above named three HUFs. The WTO is, therefore, directed not to assess the aggregate value of this property in the hands of the HUF of Shri Lakhaji Kunverji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, it was for the assessee to prove that partition had in fact taken place for which there was hardly any evidence available. On the other hand, so far as the actual aspect was concerned, the assessee's advocate relied on the aforesaid affidavit and submitted that the affidavit showed that partition had already taken place among the coparceners of the HUF before us. He then made certain legal submissions. He submitted that on the death of Lakhaji Kunverji the 1/2 share of Lakhaji Kunverji in the HUF of Kunverji Sawaji went out. But we are here dealing with the HUF of Lakhaji Kunverji. Therefore, that is not relevant. According to him, in the present case, partition had taken place in the HUF of Lakhaji Kunverji the assessee before us becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factual aspect is concerned, we are of the view that the assessee has not been able to support his case for partition. The details asked for by the WTO are extremely relevant but the assessee has failed to produce them. All that the assessee has got are affidavits of the coparceners which as called by the Departmental Representative are merely self-serving documents. There is no objective data to prove the partition as per agreement as claimed by the assessee. 7. We are therefore, now left with the question of partition effected by reason of s.6 of the Hindu Succession Act. The relevant observations in the Supreme Court judgment in GURUPAD'S case have been duly explained by the Supreme Court in the case of STATE OF MAHARASHTRA vs. NA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court has placed emphasis on the rights of the female heir. At the same time it has emphasised that the female heirs do not cease to be members of the family without their volition. The tenor of this decision therefore is that there is no disruption of the family as such. The Kerela High Court decision in CHULLIKKAN's on which the learned Departmental Representative has relied also states that the said s. 6 does not operate to bring an automatic disruption of the HUF on the death of its member. Therefore, the trend of the judicial decisions is in favour of the view that automatic disruption of the assessee HUF did not take place on the death of Lakhaji Kunverji. Regarding the Gujarath High Court decision in the case of KANTILAL MANILAL it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
