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TMI Blog1965 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... y naming the six members of the family in the receipts issued to the tenants and recording the names of all the six persons in the records of the Municipal Board ? or Whether a division by metes and bounds is necessary? The material facts are that the assessee constituted a Hindu undivided family consisting of Purushottam Das, his wife and mother and three sons. It derived income from its zamindari properties, share from Government securities, money-lending and grain business, sugar refinery business and house properties. In the present reference we are only concerned with the zamindari and house properties as the three questions set out hereinabove only refer to these two assets of the Hindu undivided family. It would here be convenient to deal first with the facts relating to the zamindari properties separately and to determine the answer to the first two questions before proceeding to the third question. In January, 1948, a suit for partition was brought against Purushottam Das by his wife, mother and sons. A consent decree was passed on the 13th May, 1948. A mutation in respect of the zamindari properties in the names of each of the erstwhile members of the family was duly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no property is held by him as a tenant-in-common. If is open to them to divide the property by metes and bounds at any time later. If the joint property consists of houses only, then on disruption each brother will have a one-third share in each of the houses. So long as the houses are not divided by metes and bounds each of them is entitled to one-third share in the income from each of the houses and the names of all three have to be entered in the municipal records. Therefore, the first limb of the question must be answered in the affirmative. The second limb being in the alternative must necessarily be answered in the negative. Hindu law recognises that a joint family can, while retaining the status of joint family, divide part of the joint family property among its members. The whole of the joint family property is owned by the joint family ; the joint family being the owner is capable of exercising its right as such in respect of any of its assets. It can alienate an item thereof without thereby affecting its status as a joint family in respect of the remaining property. Just as it can alienate it to a third person so also it can alienate it to its own members, i.e., take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disruption of the status results in fixation of the shares of the members in the joint property but that is not enough and something more must happen, it being partition in definite portions. The only thing that can happen after the disruption resulting in the fixation of the shares is the allotment of specific property to each of the members in accordance with his share. That is the "partition "referred to in section 25-A (1). If a joint family continues to be joint but divides by metes and bounds or otherwise an item of it among its members section 25-A is not applicable at all ; the joint family continues to be assessed as such in respect of its income from the remaining property and the members become liable to be assessed as individuals on their income from the property allotted to them, whether specifically or in shares. The question whether the item is partitioned among the members in definite portions or by metes and bounds is wholly irrelevant. If it is divided by metes and bounds every member will be assessed as an individual on his income from the portion specifically allotted to him ; otherwise he will be assessed on his share in the income jointly derived from the it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of partition with the alternative claim of partial partition. If partition is claimed and it is found that the property is not divided in definite or specific portions, no order contemplated by section 25-A(1) can be recorded and the family must continue by virtue of section 25-A(3) of the Act to be assessed as joint and no question of considering partial partition can arise at all. The whole of the joint family property must be divided in definite portions; it is not enough that only a part of it is so divided. " The joint family property " means the entire joint family property. On disruption of a joint family the entire joint property is held by its members as tenants-in-common and the article " the " denotes that the whole of it must be partitioned in definite portions. It is an absolute requirement that the joint family property is partitioned in definite portions. If in respect of it or any part of it, it cannot be said that it has been partitioned in definite portions, section 25-A simply is not applicable and no order contemplated by it can be passed by the Income-tax Officer. All tangible property is ordinarily capable of being partitioned in definite portions. Only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the Hindu law as by the Income-tax Act. So long as the Income-tax Act has not altered any rule of the Hindu law it must be given effect to. We have, no power to alter any rule of the Hindu law or to refuse to give effect to it. No specific provision in the Income-tax Act is required for our giving effect to any rule of the Hindu law not altered by it. If a joint family must be prevented from taking out an item from the joint family property and dividing it among its members but not in definite portions it must be done through an enactment. If it is thought desirable to check joint families from reducing their properties through a series of private partial partitions there must be a law checking it ; the court cannot legislate and refuse to enforce the law. No case has been referred to us in which a joint family has been assessed on the income of an item partitioned among its members on the ground that the partition was not in definite portions. All the cases in which the joint family has been assessed on the income of the entire joint family property are those in which partition, and not partial partition, had been claimed, but it was found to be not in definite portion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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