TMI Blog1962 (6) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. The said Nirmal Chandra Sarvadhikary, who was governed by the Dayabhaga school of Hindu law, died intestate on the 29th January, 1940, leaving him surviving the petitioner, Biswa Ranjan Sarvadhikary, as his only son, and his widow, Sm. Satadal Bashini Sarvadhikary. They are his only heirs and legal representatives and became jointly seized and possessed of the said property. It is stated that ever since 1940 they had verbally effected a partition of the said immoveable properties, although there was no separation by metes and bounds. Since 1940 both the petitioner and his mother were separately assessed for payment of income-tax. The petitioner, Biswa Ranjan Sarvadhikary, has been assessed on that footing up to 1954-55 and his mother ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re definite and ascertainable, such persons shall not in respect of such property be assesssed as an association of person, but the share of each such person in the income from the property as computed in accordance with this section shall be included in his total income. In this case, the property is owned by two persons and are in their joint possession. The next question is whether their respective shares are definite and ascertainable. The position in the case of a Dayabhaga family is quite clear. This is how it has been summarised by Mulla in his Hindu Law, 12th edition, page 520: According to the Dayabhaga law,...each coparcener has, even whilst the family remains undivided, a certain definite share in the joint property of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1937, and the Hindu Succession Act, 1956, he was of the opinion that the property income should be assessed as in the hands of a Hindu undivided family. Under the Hindu Women's Right to Property Act, 1937, the mother got a half-share, but a limited estate. Under the Hindu Succession Act, 1956, the limited shares of Hindu women have become absolute shares. This rather goes to destroy the proposition that the income can be assessed as of a Hindu undivided family. A judgment of the Income-tax Appellate Tribunal, Calcutta Bench, has been cited before me: Sm. Bani Rani Rudra v. Income-tax Officer, District I(2), Calcutta. In that case, the same issue arose. The Income-tax Officer and the Appellate Assistant Commissioner held that sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their shares therein were definite and ascertainable. The section is not attracted to the case of a mere severance of status of the members by partition, in a joint Hindu family. So long as there no partition in definite portions, the Hindu undivided family is the owner of the property for the purposes of assessment to tax of the income of the property. It was held that section 9(3) could not override the special provisions under section 25A. Therefore, the decision turned on the particular facts of the case and was considering the question of a joint Hindu family governed by the Madras school of Hindu law. These principles are not applicable to a Dayabhaga Hindu family and in any event it rather supports than destroys the case of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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