TMI Blog1973 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal, Patna Bench, which has stated a case and referred the following three questions of law for determination by this court: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deciding that the provisions of section 171 of the 1961 Act were complied with by the assessee with effect from January 1, 1961, in the course of the assessment proceeding for 1961-62 ? (2) Whether, on the facts and in the circumstances of the case, there was any material before the Tribunal to come to the conclusion that the claim of partial partition should be admitted with effect from January 1, 1961 ? (3) Whether, on the facts and in the circumstances of the case, and on a true interpretation of the deed of partition, dated February 2, 1962, the Tribunal was right in allowing partial partition as from January 1, 1961?" At the outset facts may be stated in a narrow compass. There was a Hindu undivided family consisting of several coparceners as also other members of the joint family. The names and styles under which the family carried on business or owned and managed immovable properties from which also it derived income were: (1) Messrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the coparceners, the coparceners had agreed to the award and in token thereof had signed it; it was, therefore, a clear proof of the fact that not only the family disrupted on and from January 1, 1961, but the partition of the immovable properties as made by the arbitrator was also effective from that date. On being asked by the Commissioner of Income-tax, the Tribunal has stated a case and referred the three questions of law above mentioned. In my opinion, all the three questions can be consolidated and compressed in one. The one reframed question will cover the point of law which arises from the appellate order of the Tribunal and bring out the issues indicated in the three questions. I, therefore, reframe the question in the following language: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in giving effect to the claim of partial partition under section 171 of the Income-tax Act, 1961, with effect from January 1, 1961, as against the decision of the departmental authorities that the claim was fit to be allowed with effect from February 2, 1962 ?" One of the parties to the agreement was Shrimati Janki Devi, the third party. As me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties hereto hereby agree and declare that the said first party, second party, fourth party and fifth party hereto shall henceforth be separate owners of the properties mentioned in the first, second, third and fourth schedules hereto respectively and such of them shall hold and enjoy the properties so allotted to it in severalty and free and discharged from all claims and demands of the others thereto or concerning therewith." Paragraphs 4 and 6 of the partition deed runs thus: "(4) The properties hereby partitioned amongst the first, second, fourth and fifth parties are naturally to be held jointly by the respective parties within their group. (6) In respect of the property hereby allotted to the particular party hereto, but in possession of any party other than itself, the possession of the said property shall be restored within 1962 to the party to whom it has been allotted under this deed of partition and until then, the party occupying shall not pay any rental for the use and occupation of the said property to the party to whom the said property has been allotted." Paragraph 8(b) of the deed states: "(8) It is hereby agreed among the parties as follows: - . .... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree of partition of a civil court, a registered award of an arbitrator or a registered deed of partition. If any of the documents aforesaid is produced then no further evidence or material may be necessary to prove physical division of the properties by metes and bounds as the document on its own force will have that effect. Question for consideration in this case is whether the assessee has proved in this case that the immovable properties of the erstwhile joint family were partitioned by metes and bounds as a fact or any of the two documents had the effect of proving such fact of law; if so, which of the two documents-the award or the deed of partition? I shall immediately consider the effect of the award in law. Undoubtedly, the deed of partition, since it was registered, had the effect of bringing about partition by metes and bounds of the properties mentioned therein with effect from February 2, 1962, the date of the execution of the deed, as under section 47 of the Registration Act, on its registration, the effect will relate back to the date of the execution. The effect of the award which was unregistered will be presently considered. But, before that is done, I shall di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties other than the one to whom the property was allotted has been assigned by the deed by the use of the expression " hereby assigns ". On a careful consideration of the matter, therefore, I have no doubt that on the written materials produced by the assessee in the shape of the award and the deed of partition it could not be held that partition by metes and bounds, as a matter of fact, had been effected on and from January 1, 1961 ; rather, the recitals indicate that the partition was being effected from February 2, 1962. Now comes the question of the effect in law of the award. It is unnecessary to repeat that the effect of the registered deed of partition was to bring about partition by metes and bounds of the properties mentioned in the deed of partition. But what was the effect of the award made by the arbitrator in the eye of law ? Had it been a registered award, there could have been no difficulty in taking the view that the award, by its own force, as held by the Supreme Court in Satish Kumar v. Surinder Kumar had the effect of bringing about partition by metes and bounds of the properties mentioned in the various schedules appended to the award. The recital in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, for a collateral purpose; the very purpose of filing the award was to show that by the award partition by metes and bounds had taken place. In my opinion, the Tribunal has misread and misinterpreted the various terms and recitals of the award and the partition deed. At one place in its order the Tribunal says: "The position has been made further clear showing thereby that the partition has been effected in pursuance of the award." It may be in pursuance of the award which had the effect of, so to say, an agreement to partition in accordance with it. But the partition was really effected by the deed of partition. It was not only sufficient for the parties to accept the unregistered award but it was also necessary to act upon it. In the decision of the Supreme Court in the case of Kashinathsa Yamosa Kabadi which was relied upon by learned counsel for the assessee, stress has been laid on both the aspects in paragraph 22 of the judgment at page 1083, wherein it has been said: "It may be sufficient to observe that where an award made in arbitration out of court is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
