TMI Blog1967 (3) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 21, 1922, issued under section 60 of the Income-tax Act, 1922. The late Raja of Bhor held certain Government securities and up to the assessment year 1953-54, he was assessed in the status of individual in respect of his income. He died on October 9, 1954. His estate including the Government securities thereupon passed to his three sons who constituted a Hindu undivided family. The eldest of them succeeded to the title of Raja of Bhor. For the assessment years 1954-55 to 1958-59 the present Raja of Bhor filed returns as a Hindu undivided family consisting of himself and of his two brothers. He claimed exemption in respect of the interest income with regard to the Government securities on the ground that it was exempt under the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was applicable. In this view of the matter he allowed the appeal of the assessee. The income-tax department took the matter in appeal to the Appellate Tribunal which affirmed the decision of the Appellate Assistant Commissioner and dismissed the appeal. At the instance of the income-tax department the Appellate Tribunal stated a case to the High Court on the following question of law : "Whether, on the facts and circumstances of the case, the interest on securities assessable under section 8 of the Income-tax Act was exempt from tax in the assessee's hands in view of the Notification No. 878F dated March 21, 1922, issued under section 60 of the Income-tax Act ? " By its judgment dated October 19 1962, the High Court of Bombay answere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch question was ever raised or argued before it. It is not therefore open to Mr. Mitra to re-agitate this point in the present appeals. It was then contended by Mr. Mitra on behalf of the appellant that the securities belonged to the Hindu undivided family which was a separate unit of assessment under the Income-tax Act. It was submitted that the Hindu undivided family was assessed to income-tax as a distinct entity or unit of assessment in contradistinction to its members. It was therefore argued by Mr. Mitra that since the securities belonged to the Hindu undivided family, the exemption contained in the notification dated March 21, 1922, will not apply to the present case. In our opinion, there is a fallacy lurking in this argument. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the deceased's lifetime a common interest and a common possession." But it is also true that no individual member of a Hindu coparcenary, while it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth-(Lord Westbury in Appovier v. Rama Subba Aiyan). His interest in the coparcenary property is a fluctuating interest which is capable of being enlarged by death in the family and liable to be diminished by birth in the family. It is only on partition that the coparcener is entitled to a definite share. But the important thing to notice is that the theory of ownership being acquired by birth has given rise to the doctrine of samudavika swatwa or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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