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TMI Blog1981 (9) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no element of gift. The GTO held that there should be at least two coparceners to constitute a Mitakshara coparcenary and even though a single male member along with female members can form a HUF, such a HUF cannot effect the partition of its properties. The female members have only a share on partition and they have no right to claim partition. The ancestral property in the hands of the assessee, who is the only coparcener of the HUF at the relevant time, is for all practical purposes at par with self-acquired property. Thus, he held that the partition made by the assessee was a gift made to his wife and children. 2. In appeal, the Commissioner (Appeals) held that the sole coparcener of HUF is regarded as the owner of the propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be entitled to a share on a partition of the properties of the joint family and they would have only a right to maintenance, etc., for which proper provision could be made in the course of any partition that takes place. Where there is no scope for partition, there is no possibility of making a provision therein. In that case, the partition was claimed between the assessee, who was the only coparcener, and his wife and minor daughters. The claim of partition was not accepted. On those facts, the Madras High Court held that, the department was justified in refusing to recognise a partial partition said to have been effected in the family of the assessee in which he was the only coparcener and in which properties were allotted to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it her absolute property or limited estate, in the joint family stock. " 6. The ratio laid down in the above cases squarely apply to the instant case. The decision of the Madras High Court in the case of Nattuswamy v. GTO [1973] 91 ITR 142 relied on by the assessee's counsel has no application to the facts of the instant case. That case was a case where there was a settlement in favour of the assessee's sons, whereas in the instant case, the assessee is the sole coparcener and so he had absolute rights to deal with the properties. The wife and minor daughters of the assessee have no right to claim partition. The assessee, being the sole coparcener, had absolute rights in the HUF properties. Thus, the properties given to the wife and min ..... X X X X Extracts X X X X X X X X Extracts X X X X
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