TMI Blog1995 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... o, being assessed in the status of Shri Ram Kalyan Jain (Individual). 3. The returns for both the years were filed in status of HUF (non-specified). In the footnotes in the returns it was mentioned that the reason for change of status from individual to HUF (Non-specified) have been filed in the IT returns. The copy of such reasons, as filed before us, shows that Shri Ram Kalyan Jain was being assessed to income-tax in the status of individual for the last so many years for his being the sole surviving member of the HUF. But since he adopted one Sri Pukhraj Jain as his son vide a registered adoption deed dt. 31st Jan., 1980, the status of HUF got revived and the returns were being furnished in the changed status of HUF(NS). The AO, however, noted that Smt. Ram Piyari Devi, the wife of Shri Ram Kalyan, was also a member of the assessee-HUF and since she possessed taxable wealth as on the relevant valuation dates, the correct status of the assessee HUF, should be that of HUF (specified). Though the assessee appears to have contended that Smt. Ram Piyari has severed her status as a member of the HUF long back and was being separately assessed under the WT Act, 1957 (the Act) in her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-88. Mr. Kasliwal further submitted that the long established position of the assessee vis-a-vis the Department was not to be disturbed irrespective of the fact whether the orders passed in earlier or subsequent assessment proceeding operate as res judicata or not. In support of his contentions Mr. Kasliwal has relied upon the relevant assessment orders passed in the case of the assessee under the Act as also under IT Act, 1961, the computation of taxable incomes in those years and the declaration by Smt. Ram Piyari Devi. 7. After having given our thoughtful consideration to the arguments advanced before us and on study of the material brought on our record we are of the opinion that the orders under appeals are justified in the facts and circumstances of the case and call for no interference by us. 8. The concept of "joint Hindu family" or undivided Hindu family, (henceforth called HUF) is quite different from the concept of "Hindu coparcenery" under the Hindu Law. An HUF consists of all persons lineally descended from a common ancestor and includes their wives and the unmarried daughters. The HUF is the normal condition of Hindu family. Such a family is ordinarily joint not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's father's father is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great grandsons, they become joint owners with him. They become entitled to it by reason of their birth. Here it is to be kept in mind that the Mitakshra School of Hindu Law, which generally governs the parties in this State, divides property into two classes, namely, unobstructed heritage and obstructed heritage. Property in which a person acquires an interest by birth is called unobstructed heritage because the accrual of right to it is not obstructed by the existence of the owner. Property the right to which accrues not by birth but on death of the last owner without leaving a male issue is known as obstructed heritage because the accrual of the right to it is obstructed by the existence of the owner. Another distinction between the two is that whereas unobstructed heritage devolves by survivorship, obstructed heritage devol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for their lifetimes. Such added right of retention of the property inherited by them from their husbands, for their lifetimes. Such added right of retention of the property created their interest in the property and the property held by them with such interest therein during their lifetimes was known as "life estate" or "Hindu woman's estate". That was the position of the rights or interest of a Hindu female in the HUF property before the changes brought about by certain legislative enactments enacted from time to time. 16. In the present appeal we are concerned with the right of a Hindu wife in the HUF, constituted by herself and her husband, in the HUF property including the joint family business of Kirana merchandise and her alleged relinquishment of her rights in such property. The question arises as to what she could have relinquished. If she had any rights to or interest in the HUF property, she could have relinquished her such rights or interest. But as stated above, her being the member of the HUF did not confer upon her the status of a coparcener. Property is not an essential requisite for the constitution of the HUF though of the coparcenary. Since she was having no sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Hindu Law. The admixture of religion and ethics with legal precepts, however thin it might be, ultimately led to the consideration of the Hindu Law and original concepts of marriage, inheritance, adoption, etc. stood materially and substantially altered under the Hindu Marriage Act, 1956, the Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act. 18. The sacramental aspect of the Hindu marriage conferred upon the woman the status of a member of the HUF, constituted with the man she married. But the secular aspect did not confer upon her the status of a "co-paracener". The rule propounded by Medhatithi that "a girl should be married after giving her raiments (sic) and ornaments and she should also be given a portion" enabled her to form her "Stridhan" which could be fattened by inheritance, purchase, partition, seizure finding. But in relation to the "coparcenary" the share obtained by her as a widow on partition of the joint family property or acquired by inheritance on death of her husband did not go to make her "stridhan". Though a member of the HUF yet not a coparcener she could not blend her "Stridhana" with the common stock and the doctrine of blending di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased to be such in law, it may still be deemed to be an HUF for the purposes of s. 25A of the Act of 1922 and s. 171 of the present Act. The reason is obvious, s. 171 of the Act obliges the AO to give a finding after proper enquiry regarding the partition of the HUF. If no such finding is recorded under s. 171, an HUF, hitherto assessed as undivided, shall be deemed for the purposes of the Act to continue to be an HUF despite partition total or partial. The deeming provision of s. 171, however, do not adversely affect the status of the members of the partitioned family in other areas of liability of the members of HUF under other laws. 22. In the instant case it is not disputed that upto asst. yr. 1953-54 the assessee was being assessed to income-tax as an HUF. The assessment order for asst. yr. 1950-51 dt. 13th Jan., 1954 corroborates this position. But, thereafter, the assessee was, undisputedly, assessed to income tax in its status of individual. That is found to be the position of the assessee at the time of coming into force of the present Act and appears to have continued upto the present assessment year. Even after the adoption of Shri Pukhraj Jain by Shri Ram Kalyan an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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