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TMI Blog1973 (11) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 of the Act the assessee's status could be taken to be as a Hindu undivided family, as shown by him in his return, or whether his status was rightly taken to be as that of an individual by the Wealth-tax Officer, as affirmed by the Appellate Assistant Commissioner. The Tribunal followed the Bench decision of this court in Miscellaneous Judicial Case No. 193 of 1962 decided on 6th December, 1965, which decision is now reported in [1967] 65 I.T.R. 592 (Panna Lal Rastogi v. Commissioner of Income-tax). This was the case of the same assessee in respect of an earlier period. Facts, as mentioned in paragraph 4 of the report, are identical. This court held that even though the family of the assessee at the time of partition consisted of himself and his wife, the assessment must be in respect of the ancestral property of the assessee in the status of a Hindu undivided family and not as an individual. Although the point was covered directly by a decision of this court, the Appellate Tribunal felt persuaded to make a second reference to this court on the same point, as perhaps the point, in its opinion, was not free from difficulty. The learned standing counsel for the revenue submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e included in the expression " joint Hindu family ", although they may not be coparceners. It has been repeatedly pointed out in various decisions, some of which will be adverted to by me later in this judgment, that a joint Hindu family does not cease to be in existence for the purposes of the Income-tax Act or the Wealth-tax Act by the death of a person, even though the death may be of the sole male member. Such a view has been taken, as it appears, because of two reasons, first, that so long as there is the possibility or potentiality of the birth or adoption of a person in the family the surviving member or members of the family which undoubtedly on such birth or adoption constitutes a joint Hindu family, a family which was in existence just before the death of a person, a family which may undoubtedly come into existence by birth of a person, should not be allowed to be ended by legal fiction for the interregnum. The second reason given in some of the decisions is that even the female members constituting the joint family before the death of a male member were entitled to maintenance, and in some cases, the property of the joint family was impressed with a charge for maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th to a son or the spouse adopting a child in future is there, but the new family which comes into existence on partition is not a joint Hindu family. In the case of N. V. Narendranath, it has been clearly laid down by the Supreme Court that a family consisting of husband, wife and their two daughters at the time of partition is surely a Hindu undivided family for the purpose of taxation law. The Bench decision of this court in the case Hanumanmal Periwal is contrary to that decision. There is, therefore, no doubt that the decision in the case of Hanumanmal Periwal stands overruled by the decision of the Supreme Court in N. V. Narendranath's case. But, in this case, we are not concerned with the family in which there was a daughter of the assessee on the date of partition. Here, on the date of partition, the family consisted of the husband and wife alone. If the point would have been res integra, on a careful consideration of the matter, I would have perhaps persuaded myself to take the view that the status of the assessee could not be that of a Hindu undivided family in this case. But, I shall presently show that the Bench decision of this court finds some support from the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Hindu undivided family. The whole of the argument advanced before the Supreme Court and which was rejected was on the theory of the son's right as a coparcener from the date he is conceived in the womb : and in that connection at the end Sikri J. (as he then was), delivering the judgment on behalf of the court, said at page 40 : " When the income and profits arose, they belonged to the assessee, as no Hindu undivided family was then in existence. This position cannot be displaced by the birth of the son, which brought into existence a Hindu undivided family." The sentences extracted above would indicate that a new family coming into existence after the partition and disruption of the old joint family, if it consists only of the husband and the wife, cannot be characterised as a Hindu undivided family. But this case was distinguished by Ramaswami J. in the case of N. V. Narendranath, and Shah J. (as he then was), a member of the Bench in both the cases. The same Bench which decided T. S. Srinivasan's case on November, 29, 1965, decided the case of Gowli Buddanna on January 10, 1966. One Buddappa, his wife, their two unmarried daughters and an adopted son, Buddanna were membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the adoption of a son or birth of a son to him, it would assume a different quality. It continues to be ancestral property in his hands as regards his male issue for their rights had already attached upon it and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remain joint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again, the ownership of the dividing coparcener is such 'that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it' : [see Arunachalam's (No. 2) case]. It is evident that these are the incidents which arise because the properties have been and have not ceased to be joint family properties. It is no doubt true that there was a partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand. But the effect of partition did not affect the character of these properties which did not ceas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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