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TMI Blog1983 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... war and M/s. Rameshwar Nathani & Co., the HUF had a 12 annas share in a partnership business carried on in the name of M/s. Dudwala & Co., wherein the interest of the HUF was represented by its karta, Rameshwar Nathani. In the year 1943, a suit for partition was filed by Satyanarayan, one of the members of the HUF, in the original civil jurisdiction of the Calcutta High Court and a consent decree was passed by the High Court on March 18, 1944, in terms of a settlement arrived at between the parties. The relevant clauses of the settlement, which were incorporated in the compromise decree passed by the Calcutta High Court are as under: " (1) The joint family came to an end of the 21st day of September, 1943 ...... (7) The businesses carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, were ab initio void. The Tribunal, while deciding the appeals preferred by the assessee, by its consolidated order dated September 15, 1970, in respect of the aforesaid two years, found itself in " an unenviable plight ". On the one hand, there was a finding of the Tribunal in the income-tax proceedings to the effect that the share of the HUF in M/s. Dudwala & Co. continued as an asset of the assessee HUF and that the family remained joint to carry on the partnership in M/s. Dudwala & Co. On the other hand, there was the judgment of the Calcutta High Court in a matter relating to registration of the firm, Baldeo Dass Rameshwar[1950]18 ITR 653, wherein it was held that after the consent decree for partition was passed in the year 1943, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 15, 1970: "1. Whether, on the facts and in the circumstances of the case, the Hindu undivided family of M/s. Baldeodas Rameshwar had ceased to exist as such from the date of decree in Suit No. 1436 of 1943. 2. If the answer to question No. 1 is in the affirmative, whether valid assessments under the Expenditure Tax Act could be made on the family for the assessment years 1958-59 and 1959-60 ? In respect of the first question, it may be observed that clause I of the terms of settlement, which formed part of the consent decree passed by the Calcutta High Court in the year 1944, clearly provided that the joint Hindu family of the parties came to an end on 21st day of September, 1943. While the other properties, movable and immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree to make such arrangements about the management of their properties and business in future as they may like. It is not necessary that with the disruption of the joint Hindu family, division by metes and bounds of all the joint family properties should be made. According to the principles of Hindu law, the institution of a suit for partition by a member of a joint Hindu family is an unequivocal intention to separate and consequently there is severance of his joint status from the date of the institution of the suit. Where the coparceners executed in writing with a view to effect partition and agreed to hold some of the joint properties in defined shares as separate owners, such a writing operates in law as a partition of the entire joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dissolution of the joint Hindu family, they held the said 12 annas share as tenants-in-common, and each one of them was entitled separately to 1/6th out of the said 12 annas share. In Ramalinga Annavi v. Narayana Annavi, AIR 1922 PC 201, their Lordships of the Privy Council, approving the dictum of Lord Westbury in the case of Appovier v. Rama Subba Aiyan, observed as under (p. 205): " It seems to their Lordships that in the debate before the Board the difference between a complete " partition " in a joint undivided Hindu family and a partial division of interest in respect of some specific property or part of the joint properties has been overlooked. This distinction has been clearly pointed out in the judgment of Lord Westbury in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm, according to his respective share as specified in clause 3 of the deed of settlement. The Calcutta High Court also took the same view, in the case relating to the question of registration of M/s. Dudwala & Co. and observed as under (p. 659): " After the shares have been defined the members of the Mitakshara joint family may divide the property by metes and bounds or they may continue to live together and enjoy the property in common. Yet, that would affect the mode of enjoyment but not the tenure of the property. Therefore, the mere mention that the parties would be entitled to twelve annas share of the firm of Dudwala and company according to the shares specified in the terms of settlement did not make any alteration as to the real c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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