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TMI Blog1984 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... b Sahay Kapur. The case of the assessee was that the said property belonged to the HUF of which he was the karta and so the same could not be included in his total income assessed in his individual capacity. The ITO did not agree. He observed that late Shib Sahay Kapur died intestate in 1971 leaving behind the aforesaid house which was his self-acquired property. The assessee inherited a portion of the said property under the Hindu Succession Act, 1956. According to the ITO, the assessee became the absolute owner of the said property in his individual capacity and his son or grandson did not have any interest in that property. In this view of the matter, he included the income from the aforesaid property in the total income of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this further appeal before us, Shri J. Pathak, the learned representative for the assessee urged before us that the revenue authorities erred in their decision. He stated that section 4 of the Hindu Succession Act lays down that the well recognised principles of Hindu law remained unaffected except in respect of the matters enacted in the said Act. That Act, especially sections 6, 8 and 30 were to deal with the persons who were entitled to succeed the property of a Hindu male dying intestate and the quantum of their shares. The said Act does not deal with the character of the property in the hands of the person who inherits the same. Hence, the old principle of Hindu law will apply to determine the nature of the property in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue in favour of the assessee. He also pointed out that the decisions of the Allahabad High Court in the case of Ram Rakshpal Ashok Kumar as well as the decision in the case of Malchand Thirani Sons were distinguishable on facts because in those cases the son was already separated from the father on the date of the death of the father. According to Shri Pathak, the son was not separate from his father in the instant case. If the son is not separated, be argued that he got an unobstructed heritage. Further, he urged that in the case of unobstructed heritage, the property belongs to the joint Hindu family. In support of this contention, he also referred to the fact that section 31 of the Hindu Succession Act has repealed the Hindu Women's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent. Again, he urged that it has not been found as a matter of fact that the assessee before us in fact was living jointly with his father on the date of the death of the latter. Even otherwise, the decision of the Calcutta High Court in the case of Malchand Thirani Sons laid down the general law and it did not rest upon the fact that the assessee therein was separated from his father on the crucial date. Finally, he stated that even if the son remains unseparated on the crucial date, still that case will apply and the property will have to be held as individual property, because of the observations of their Lordships to the following effect: "Under the Mitakshara law a coparcener cannot dispose of his interest in the coparcenary pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord to suggest that the assessee was living jointly with his father on the date of the death of his father vis-a-vis the property under consideration, Quite apart from the above, we must say that we are unable to see any distinction between the facts of this case and in Malchand Thirani Sons' case on the ground that the son was joint with his father on the crucial date in the instant case. The decision of the Calcutta High Court did not turn upon the fact that the son was separate from his father. If the said judgment of the Calcutta High Court is read as a whole, it would be quite apparent that the decision therein is based on the interpretation of the provisions of the Hindu Succession Act. Insofar as they determine the nature of self- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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