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TMI Blog1986 (8) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... s dispute was common to both the years 1980-81 and 1981-82 and identical grounds were raised by the assessee, both these appeals were heard together and are disposed of by this consolidated order for the sake of convenience. 2. In order to appreciate the issue, it will be of immense assistance in case we briefly state the facts. One Shri Bakhshi Mulk Raj Chhibbar, an advocate, was father of the assessee. He had two houses, being Nos. 681 and 721 both in Sector 8-B, Chandigarh, besides bank deposits and library, etc. He executed a will on 4-7-1980 in respect of his entire property. He had four daughters and three sons. He observing about his four daughters that they are very well placed in life, hardly gave anything to them. The eldest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajinder Kumar Chhibbar. My second son Rajindar Kumar Chhibar will have a right to continue to reside in the ground floor of house No. 721, as he has been practising here as an advocate. He had his office and residence here. In the interest of his profession, he needs the ground floor for residence and his office. He shall pay Rs. 200 per month to each of his two brothers by way of rent. This amount is about the same as he can realise as rent of house No. 681. The repairs, white-washing, etc., will be got done by my second son in house No. 721. I have intentionally given house No. 721 to my eldest and youngest sons for life as, I think, they can pull on together and it may not be possible by any of them to pull on with my second son who unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO for both the years. 5. The learned counsel for the assessee Shri D.S. Gupta disputing the said finding, read out at length the will and submitted that unless it is specifically, written therein that whatever is given is to the individual, and not to his wife and children then alone he will not be entitled to the same, and then alone it will be individual's property, otherwise, it has to be HUF's property. He relied on Janakiram Chetty v. G.C. Nagamony Mudaliar AIR 1926 Mad. 273 and C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar AIR 1953 SC 495. He also relied on the order passed by the Estate Officer, as per which the said property was transferred in the hands of the assessee-HUF and, therefore, he submitted that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting of the above members." In response to the said letter of request, the Estate Officer wrote back to the assessee on 16-10-1981 as under : " In order to finalise your case for the transfer of above mentioned property, you are requested to give sufficient proof in support of your claim for treating the property mentioned above as HUF. Any legal decisions in support may also be mentioned." In compliance to the said requirement, a detailed note was placed by the assessee before the Estate Officer on 19-10-1981, who agreed to transfer the said property in favour of the assessee-HUF. Therefore, it cannot be said, as observed by the AAC, that the Estate Officer accepted the assessee's claim without looking into any reasoning. We are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny property may nevertheless be joint.... ... Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family." When we go through para 218 of the Mulla's Hindu Law, the same reads as under : " Obstructed and unobstructed heritage.---(1) The Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage. Property in which a person acquires an interest by birth is called unobstructed heritage. It is called unobstructed, because the accrual of the right to it is not obstructed by the existence of the owner. Property, the right to which accrues not by birth but on the death of the last owner without leaving male ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " . . . where the will is silent as to the nature of the estate conferred, that they would take it as unobstructed heritage with the same incidents as would follow if there was no will ...." Naturally it will become that of HUF. In short, since the father of the assessee nowhere wrote that it is exclusively given to the assessee, and his children, will not be having benefit of the same, in the light of the two decisions cited by him and the finding of the Estate Officer, who was also a quasi-judicial authority, the assessee's claim that the said property belonged to the HUF has got to be admitted. 9. We shall be failing in our duty in case we don't deal with article 380 of Mulla's Hindu Law, on which reliance was placed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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