TMI Blog1996 (6) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ot err in holding that a valid family arrangement in the eye of law has taken place in this case ? 3. Whether the learned Tribunal did not err in law in going to decide the question that there was no question of forming of association of persons when it was not an issue in the present case for disposal of the appeal and whether it did not err in law in arriving at that conclusion ? 4. Whether the learned Tribunal did not err in law in giving a finding that no gift was involved in this case when that question was not at all necessary in deciding the present appeal ? 5. Whether the learned Tribunal did not err in law in arriving at a finding that there was no question of any gift of the property when the assessee, as sole owner of a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee submitted a copy of the family settlement agreement dated June 9, 1976, signed by all the brothers and sisters of Sri Bahar Ali, husband of the assessee, and in that settlement it was stated that the land in question was covered by Dag No. 49, Patta No. 17, Mouza-Beltola, having an area of land measuring 2K, 13L and a multi-storeyed building stood thereon. It was further contended that the said land was obtained by the assessee in exchange of the assessee's 19B 1K 17L--a village land. She received it in marriage as dower also known as " mehar ". Land measuring 2K, 13L at Ganeshguri Chariali, Guwahati, obtained by the assessee was earlier owned by Nazar Ali, Suleman Ali, Noor Ali and others. The Income-tax Officer held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax (Appeals). At that stage, the assessee produced a family agreement dated April 21, 1980, before the Commissioner of Income-tax (Appeals) in support of her case to show that the assessee was having only one-fifth share of the entire property. This was, however, not produced before the Income-tax Officer. The Commissioner of Income-tax (Appeals) held that family agreement was a special feature of a Hindu undivided family and a Hindu individual cannot execute family arrangement (?). Therefore, the spirit of family arrangement is altogether alien to Mohammedan law. The Commissioner of Income-tax (Appeals) rejected the appeal and held that the Income-tax Officer was justified in assessing the whole property in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of law but it is essential that it should be ancient, invariable, certain and reasonable. It is a settled principle that the law of the land including the law laid down by the Supreme Court must prevail. In Mohammedan law as per section 33 there are four sources of Mohammedan law, namely, (1) the Koran, (2) Hadis, (3) Ijmma, and (4) Qiyas. On going through the Mohammedan law, we do not find any custom or any customary practice of law. In the instant case also we do not find anything regarding the custom, therefore, in our opinion, the law of the land so far as applicable to Mohammedans must prevail. The concept of family settlement amongst Mohammedans is not very common. However, instances are there when agreements are made for settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of making the family arrangement, the children of the assessee had no right, title and interest over the property or any part thereof. Therefore, it cannot be said that there was a family settlement for settlement of any dispute existing or that may exist among the family members. In view of the above discussions, we hold that in the present facts and circumstances the family settlement deed dated June 9, 1976, and April 21, 1980, cannot be said to be a valid family settlement in the eye of law. In the present case, the Tribunal in its judgment in paragraph 17 observed that : " at clause 10 of the settlement deed, it has been noted that by signing of this deed all the members form an association which shall be styled as Bibijan Begu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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