TMI Blog1979 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... f one Shri S. Narayan who died on November 16, 1968. He was a partner of the firm, M/s. Southern Mercantile Corporation, with a share worth Rs. 40,600 therein. With effect from November 17, 1968, i. e., the day after he died, the partnership was reconstituted taking the assessee as a partner in his place. The Tribunal has stated: " It appears that the capital originally contributed by Shri Narayan was transferred to the credit of the assessee and she continued to have the same share in the firm. " The Tribunal has not referred to, nor has it annexed, any account or entries on the basis of which this statement has been made. The said Shri Narayan left behind him his widow and six children, one of whom was a minor at the relevant time. The sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas the said Mr.S. Narayan died on 16-11-1968 and whereas at her request the parties of the first, second and third parts hereto have agreed to take the party of the fourth part as a partner as and from 17-11-1968, in the place of her husband (deceased): And whereas the parties hereto have now agreed to continue and carry on the said business of SOUTHERN MERCANTILE CORPORATION in partnership among themselves on the following terms and conditions. " Thus, the partnership deed itself shows that it was the assessee who represented to the other partners that she might be taken as a partner with effect from November 17, 1968, in the place of her husband. There is absolutely no mention of any of the other heirs having made any such represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and invest the same in any manner he or she liked, so long as he or she is accountable to the estate as such. In the present case, in the absence of any contemporaneous evidence to show that she entered into the partnership only for and on behalf of the other heirs of the deceased, it is to be taken that she utilised the funds available in the estate for the purpose of joining the firm. Even assuming that a firm finding can be spelt out from the order of the Tribunal, that the amount available to the credit of the deceased was taken over by her for contribution of her share of capital, it would be a question of accounting between her and other co-owners, as regards the asset employed in the firm's business and the income derived theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties so as to invest the transaction with the character of a sub-partnership, nor is there any question of trust because there is no trust, express or implied. There is nothing in the Hindu Succession Act specifying that in a case like this an heir represents only the estate and that he or she cannot be taken as a full owner of the income. We are not concerned here to find out the extent of her share in the estate. There is no diversion by overriding title of 6/7ths of the share income. In these circumstances, we consider that the Tribunal acted erroneously in holding the assessee liable to the extent of only 1/7th share of the income from the estate. Learned counsel for the assessee drew our attention to a decision of this court in CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship and that the Tribunal's view that their, shares could not be included in the assessment of the widow had to be upheld. As the minors were entitled under the Muslim law to a share in the assets of the deceased and as it was the income from the assets referable to the minors, which was first set apart and, thereafter, alone the balance was subject to division among the partners, it was held that there was to that extent an overriding title in respect of the shares of the minors. The overriding title had arisen by virtue of the manner in which the partnership came into existence. That is not the position here. In the present case, there is no mention in the deed of partnership of any person other than the assessee being entitled to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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