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TMI Blog1973 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment years 1959-60, 1960-61 and 1961-62, were preferred by the assessee before the Tribunal. The facts with which the Tribunal was concerned were that in January, 1941, Dalichand, the karta of the assessee Hindu undivided family, who was issueless, had adopted Tejraj, by virtue of a deed of adoption dated January 4, 1941. Some time in January, 1947, Dalichand died and Tejraj became the karta of the assessee Hindu undivided family. On October 23, 1957, a sum of Rs. 45,000 was shown as having been given to Smt. Gatkoo Bai, the widow of Dalichand, and an entry in the book was made as under: "Copy of page No. 2 Journal Samvat 2013. Dalichand Account Dr. Cr. Kartik Badi 30 Samvat 2013, dated 23-10-57 Wednesday : Mutual settlement was done agreeable to both the parties 1,86,317-13-6 To Musamat Gatkoo Bai, w/o 45,000 Dali Chand Kankaria Tejraj Kankaria 1,41,317-13-6 ------------------------------------------------------------------------------- 1,86,317-13-6 1,86,317-13-6 ------------------------------------------------------------------------------- (Sd.) Tejraj Kankaria, Over one anna Revenue stamp (Sd.) Gatkoo Bai, Over one anna Revenue Stamp Witness : 1. Moha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of Pali, a part of the erstwhile State of Jodhpur ; that the Hindu Women's Rights to Property Act of 1937 was not in force in the former State of Jodhpur. Therefore, no right resided in Smt. Gatkoo Bai to ask for a partition on the death of Shri Dalichand, which took place in January, 1947. The relevant section of the Hindu Succession Act, which would govern this case, would be obviously section 8, urged the learned counsel, and unless it was shown that Dalichand had left some self-acquired property in which Smt. Gatkoo Bai had any claim of succession, no right to Claim partition resided in her. The question of validity of partition was a question of law and the income-tax authorities had rightly decided by reference to the law prior to the various statutory amendments in the Hindu law. He also contended that the specific case set out in the affidavit was one of separation, which is a synonym for the word "partition" There is no semblance of the contention in regard to the existence of a family arrangement. Even the concept of the family arrangement, submitted the learned counsel, has for its foundation certain rights in the parties and some disputes following them, which are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor a partition of the joint family property could be effected at her instance. Further, it has not been stated on behalf of the assessee that Smt. Gatkoo Bai, thereafter, did not continue to reside in the joint family property and her mere separate living from Tejraj could not constitute partition. Moreover, there is no material on record to show that any account of assets and liabilities of the Hindu undivided family was prepared or that the shares were defined. Mere assertion on the part of Smt. Gatkoo Bai that she separated from Tejraj having obtained a sum of Rs. 45,000 cannot constitute a valid partition according to the Mitakshara School of Hindu law inasmuch as she, being a Hindu female, at the relevant time, had no right to claim partition of the joint family property. In Hukam Chand Tek Chand v. Commissioner of Income-tax a partition or family settlement of the joint family property was claimed on the basis of a memorandum of partition on an one anna stamp recorded in an account book. The Lahore High Court held that: "The memorandum of 1928 recorded in an account book was not enforceable in law and was not per se admissible to prove a partition and the finding of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Officer, Smt. Gatkoo Bai set out a case only of separation, in other words, of partition, and she did not allege that there was any family arrangement. It is also signifi. cant to notice that the entries made in the account books of the assessee showed that the amount of Rs. 45,000 was not taken away by Smt. Gatkoo Bai, but merely a transfer entry was recorded in her name and the amount was allowed to continue to remain in the Hindu undivided family-firm. This conduct on the part of Smt. Gatkoo Bai also goes to show that there was no real dispute with reference to property or a settlement of any doubtful claim. A valid family arrangement has been described in Halsbury's Laws of England, Simond's edition : A transaction between members of the same family which is for the benefit of the family generally, as for example, one which tends to the preservation of the family property, to the peace or security of the family disputes and litigation, or to the saving of the honour of the family." The law in India in this respect is the same as in England. Reference may be made in this connection to the decision of the Privy Council in Rani Mewar Kunwar v. Rani Hulas Kunwar. A family ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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