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TMI Blog1966 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... unwar entered into a partnership ; that firm was registered under section 26A of the Act ; on October 17, 1956, Anoop Kunwar adopted Jugraj as a son to her deceased husband ; the Hindu Succession Act came into force on June 17, 1956 ; Gattu Bai died on August 9, 1959 ; on September 5, 1959, a partnership was entered into between Jugraj and his adoptive mother, Anoop Kunwar ; that partnership applied for registration under section 26A of the Act ; that application was rejected by the Income-tax Officer and the order of the Income-tax Officer was affirmed by the Appellate Assistant Commissioner holding that Anoop Kunwar had no separate interest in the assets of the partnership ; the Income-tax Appellate Tribunal reversed the order of the Appellate Assistant Commissioner and directed that the firm be registered. This reference was made at the instance of the Commissioner. The parties before us are governed by Hindu Mitakshara law. The adoption of Jugraj to Seshmull which took place on October 17, 1956, in law dates back to the date of death of Seshmull on September 15, 1955. Therefore, it must be deemed that Jugraj was in existence as the son of Seshmull at the time of death of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has a separate interest in those properties and not merely an interest as a member of a Hindu undivided family, then the partnership entered into between her and her adopted son is valid. We have earlier seen that on the death of Seshmull on September 5, 1955, his widow, Ancop Kunwar, obtained in the family properties the same interest as her husband had on the date of his death. Because of the adoption of Jugraj, it must be deemed that at the time of the death of Seshmull there were two coparceners in the family of Seshmull, namely, Seshmull and Jugraj. Each of them had a hall share in the family properties. The share of Seshmull devolved on Anoop Kunwar. It must be remembered that Anoop Kunwar was not a coparcener in the family of her husband though she was a member of that family. The interest that had devolved on her is one that has been created by the statute. It had nothing to do with Hindu law or with rules governing the Hindu coparceners. Hence, the Hindu law conception of division of status is inapplicable to such a case. The estate that devolved on her became vested in her immediately her husband died. It is true that in the estate that devolved on her, she had origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other decisions on that point. Therein the Supreme Court held that the word "possessed" in section 14 is used in a broad sense and in the context means that state of owning or having in one's hand or power. It further observed that the opening words "property possessed by a female Hindu" obviously mean that, to come within the purview of the section, the property must be in the possession of the female concerned at the date of commencement of the Act ; that possession might have been either actual or constructive or in any form recognized by law ; but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in the widest connotation, when the Act came into force, the section would not apply. Imam J., who spoke for the court, observed as follows in paragraph 11of the judgment : "In the case before us, the essential question for consideration is as to how the words any property possessed by a female Hindu, whether acquired before or after the commencement of this Act in section 14 of the Act should be interpreted. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta P. N. Mookherjee J. expressed his opinion as to the meaning of the words 'any property possessed by a female Hindu' in the following words : 'The opening words "property possessed by a female Hindu obviously mean that to come within the purview of the section the property must be in the possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word " possession" in its widest connotation, when the Act came into force, the section would not apply.' In our opinion, the view expressed above is the correct view as to how the words 'any property possessed by a female Hindu' should be interpreted. In the present case, if the adoption was invalid, the full owner of Veerappa's estate was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It does not fluctuate as a result of any change in the composition of the family. The rule of division of status is inapplicable to that estate. The separation of that estate need not be preceded by any claim for division. On the death of the widow, her estate devolves on her heirs. From our above conclusion, it follows that Seshmull's share in family properties devolved on Anoop Kunwar on the death of the former on 15th September 1955. But at that time she obtained only a life interest in the same. But she became the full owner of that interest on 17th June, 1956. Hence, when she and her adopted son Jugraj entered into a partnership on 5th September, 1959, she had a definite interest of her own in the partnership assets. That being the position, the partnership entered into is valid partnership. That would be so even if she had only a life interest in the estate taken by her. For the reasons mentioned above, our answer to the question referred to us is that, on the facts and in the Circumstances of the case, the Tribunal was right in holding that the registration should be granted to the firm. The assessee is entitled to his costs of this reference. Advocate's fee Rs. 250. X X X X Extracts X X X X X X X X Extracts X X X X
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