TMI Blog1970 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... family consisting of Sir Shadi Lal and his sons. There was a partial partition in the family on August 18, 1959. The shares worth Rs. 2,20,000 were divided among the different members of the family as follows : Sri Rajendra Lal, son of Shadi Lal 10,000 Smt. Sushila Devi, wife of Rajendra Lal 1,00,000 Narendra Lal, son of Shadi Lal 10,000 Smt. Kamla Devi, wife of Narendra Lal 10,000 Km. Rupa Rani (minor) 45,000 Km. Manjula Rani (daughter) 45,000 At the time of assessment for 1961-62, the Income-tax Officer noticed certain income received by Smt. Sushila Devi towards interest or dividend on Rs. 1,00,000. The Income-tax Officer included this income in the assessment of Rajendra Lal on the footing that the sum of Rs. 1,00,000 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Lal were the two coparceners, who were entitled to receive shares in the property worth Rs. 2,20,000. Each of the two brothers was entitled to a share worth Rs. 1,10,000. But the two brothers decided to allot certain shares to other members of the family. According to that plan, a sum of Rs. 1,00,000 was allotted to Smt. Sushila Devi from the total share of Rs. 1,10,000, to which Rajendra Lal was entitled under the partition. This was an indirect transfer by Rajendra Lal in favour of his wife of assets worth Rs. 1,00,000. The main contention of the learned counsel for the assessee is that the sum of Rs. 1,10,000 did not belong to Rajendra Lal in his individual capacity, but as karta of the smaller joint family consisting of himself an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int family property. In Mulla's Hindu Law, thirteenth edition, it is stated at page 365, under section 315 that : "A wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband." That passage does not support the contention that a coparcener's wife is entitled to a separate share in the joint family property even if that coparcener has no son. This is not a case where Smt. Sushila Devi was entitled to a share in the property as a matter of right. It was as a result of a special arrangement in the family that a share of Rs. 1,00,000 was allotted to her. There was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the partition. Section 64 of the Indian Income-tax Act, 1961, corresponds to section 16 of the Indian Income-tax Act, 1922. In the Law and Practice of Income-tax by Kanga and Palkhivala, sixth edition, volume 1, the learned authors have observed at page 530 that section 64 of the 1961 Act applies only to the computation of the total income of any individual. The section does not cover the case of the karta of a joint family gifting coparcenery property to his wife or minor son. The learned authors have relied upon two decisions of the Allahabad High Court and the Patna High Court. The decision of the Allahabad High Court is Hirday Narain v. Commissioner of Income-tax . In that case the assessee was a Hindu undivided family. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate consideration. Details of the relevant entries relating to the partition have been quoted in the statement of the case. Against the share of Rs. 1,00,000 allotted to Smt. Sushila Devi in the partition, there was a note that this sum was the capitalised consideration for her maintenance finally. If the sum of Rs. 1,00,000 represented a genuine consideration towards Smt. Sushila Devi's claim for maintenance, it could probably be said that the consideration was inadequate. But there is no indication on the record that relations between Rajendra Lal and his wife were strained in 1959. There is no suggestion that she had filed any suit for maintenance against her husband. There are similar notes against the shares allotted to Smt. Kamla Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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