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TMI Blog1983 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... at by agreement dated 28-3-1964 they have divided the one-eighth share of the bigger HUF and they shall be the absolute owners of the one-third share each of one-eighth share of the bigger HUF. 2. In the wealth-tax returns filed by the respondent-family only the property let out to New Stores situated at Mahatma Gandhi Road, Chickmagalur, was shown. It was contended that the one-eighth share in the properties of the bigger HUF has been partitioned by Shri Janardhana Setty and his two sons as per the agreement dated 28-3-1964 and so they do not belong to the respondent smaller HUF. The WTO did not accept these submissions. He held that the actual partition of the bigger HUF by metes and bounds took place on 6-1-1969. The declaration of the partition made on 28-3-1964, therefore, proceeded on a wrong presumption that property was in the absolute possession of the smaller branch and could be partitioned. Because of this no partition can be said to have taken place on 28-3-1964. Referring to the agreement dated 28-3-1968, between Shri Janardhana Setty and his two sons, the WTO held that the properties that were allotted to this family were not taken possession of and the actual par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee that these properties no longer existed as on the valuation dates 31-3-1970 to 31-3-1972 relevant to the assessment years 1970-71 to 1972-73 and that they have been divided inter se by virtue of the document dated 28-3-1968. There is substantial reason to admit the assessee's claim that so far as the assessee's one-eighth share in the bigger HUF is concerned, there has been a further division of that right share between the father and his two sons. It can be reasonably inferred that at least by 27-3-1970 the assessee and his two sons held the properties to be derived from the bigger joint family in severalty and tenants-in-common and such a right of tenancy-in-common was inter se subjected to partition between the assessee and his two sons as is clear from the agreement dated 28-3-1964 and the agreement dated 28-3-1968. Thus, he held that the WTO was not correct in law in bringing to charge the assets of the value of Rs. 9,28,300 for the purpose of assessment on the assessee-joint family as on the valuation dates 31-3-1970 to 31-3-1972, he directed the WTO to exclude the same from the assessments. Against the same, the revenue has preferred these appeals. 3. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.). 4. We have considered the rival submissions. It is well settled that a partition can be effected by a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Once the shares are defined, the partition is complete. In Smt. Krishnabai Ganpatrao Deshmukh v. Appasaheb Tuljaramrao Nimbalkar AIR 1979 SC 1880 the Supreme Court observed as under : " ....The parties are, admittedly, governed by Mitakshara school of Hindu law. In an hindu undivided family of Mitakshara concept, no member can say that he is the owner of one-half, one-third or one-fourth share in the family property, there being unity of ownership and commensality of enjoyment while the family remains undivided. Such unity and commensality are the essential attributes of the concept of joint family status. Cesser of this unity and commensality means cesser or severance of the joint family status, or, which under Hindu law, is 'partition' : irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds. Disruption of joint status, itself, as Lord Westbury put it in Appovier v. Rama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by ratification deed dated 30-10-1975. All these facts were noticed by the ITO in his order under section 171 and accepted the partition dated 6-1-1968. 6. Shri Janardhana Setty and his two sons partitioned the said one-eighth share as per the agreement dated 28-3-1964. This is valid and they had the right to partition the one-eighth share which Shri Janardhana Setty got under the agreement dated 29-5-1955. Even after the regular deed of partition dated 6-1-1968 was executed, Shri Janardhana Setty and his two sons executed an agreement dated 28-3-1968 wherein it was reiterated that there has been a division in the family of Shri Janardhana Setty and his two sons as evidenced by the agreement dated 28-3-1964 and that they are entitled to one-third share each in the one-eighth share for which Shri Janardhana Setty is entitled to in the bigger HUF which they held as absolute owners. Thereafter also another partition deed dated 27-3-1970 was executed between Shri Janardhana Setty and his two sons which also makes it clear as to the division of one-eigth share got from the bigger HUF. These three agreements clearly indicate the division of the one-eighth share in the bigger HUF i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Wealth-tax Act had, therefore, to decide these cases without any regard to section 20 of the Act, but with due regard to Mitakshara law. It is well settled that it is open to the members of a HUF to agree to enter into a partial partition and to hold the properties which were the subject-matter of such partial partition, as tenants-in-common, while continuing to be joint in respect of other properties of the family. The Tribunal was, therefore, right in holding that section 20 of the Act did not apply to cases of partial partition as to property, that the properties in question did not belong to the HUF on the valuation dates and further that it was not necessary to divide the estates by metes and bounds. The three questions referred to us in T.R.C. Nos. 158 to 160 of 1977 are answered in the affirmative and in favour of the assessee-HUF. " In this decision it was noticed that section 20 of the 1957 Act is similar to section 25A of the Indian Income-tax Act, 1922, which did not specifically deal with cases of partial partition as it has been done under section 171 of the 1961 Act. A reference was made to the decision of the Privy Council in Sir Sunder Singh Majithia v. CIT [194 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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