Decided on August 12,1994



U.S. Dhusia, Judicial Member - (1.) THE only issue, which arises in this appeal, for the assessment year 1975-76, relates to a claim of partition of joint family assets.
(2.) The assessee had made a claim that the joint family assets had been partitioned in September, 1974, following upon the death of Shri Ved Parkash Loona on November 23, 1973. Up to the assessment year 1974-75, the assessee had been assessed as a joint family, consisting of Shri Ved Parkash Loona, Shri Anurag Loona, Shri Chand Loona, minor sons, Anila and Sunila, minor daughters, and Smt. Sumitra Loona, wife of Shri Ved Parkash Loona. When Shri Ved Parkash had died, it was contended that Smt. Sumitra Loona, who was the only adult member of the family, was mismanaging and trying to grab the joint family assets. Therefore, the relatives and kith and kin of the family intervened on behalf of the minor sons and got a partition effected in September, 1974, by which the assets were -partitioned between the members of the family. A declaratory suit was filed on October 12, 1976, to put the matter beyond any doubt or dispute in future. The declaratory suit was decreed by an order of Sub-Judge, First Class, Muktsar, on December 14, 1976. On these facts, the assessee moved an application before the Income-tax Officer to pass an order under Section 171. The Income-tax Officer examined the claim of the assessee, but he could not persuade himself to accept that the claim of the assessee should be allowed. In his view, there were no coparceners to claim partition of the property in September, 1974. What he meant was that the minors could not claim a partition. The partition could only be decreed through a suit which the minor could file through a legal guardian or the next friend, appointed by a court. According to him, this suit had been filed by Shri Kishore Chand, acting as the next friend of the minors, who was a maternal grandfather. He could not be the guardian, in law, for the two minors. He further held that, in any case, no division of Hindu undivided family has taken place in September, 1974, as alleged by the assessee. Accordingly, he rejected the claim of the assessee. The Appellate Assistant Commissioner, Rohtak, concurred with the Income-tax Officer when the matter went in appeal before him and he also rejected the contention of the assessee and dismissed the appeal. The assessee had raised the plea that the facts of the case called for a consideration of Section 6 of the Hindu Succession Act. But his plea was not considered by the Appellate Assistant Commissioner and, as we have already indicated, his appeal was dismissed. The assessee, having felt aggrieved, has, therefore, brought the issue in appeal before the Appellate Tribunal. Before us also, learned counsel for the assessee placed his reliance on the fact of the panchayat of relatives in September, 1974, which had brought about a family settlement by way of partition of the joint family assets, when it had been found that the widow of Shri Ved Parkash Loona was trying to grab the entire estate. It was through the auspices of Shri Kishore Chand, maternal grandfather, that the declaratory suit had been filed, which declared the assets passing into the ownership of the members according to the partition, effected in September, 1974. No doubt, it was submitted by learned counsel for the assessee that the suit was filed on October 12, 1976, and was decreed on December 14, 1976, but that would hot mean that the date of partition would be any of these dates and not September, 1974, when panchayat of the relatives and friends had brought about the family partition. On the other hand, the Departmental Representative showed authority to say that the effective date would be the date when the plaint was filed. The judgment delivered in the suit will relate back to the date of the plaint and, therefore, the partition being effected, would fall in the year 1977-78 and not the assessment year 1975-76. He also assailed the genuineness of the decree and canvassed that income-tax authorities were not debarred from looking into the facts and make their appraisal different from what was apparent from a perusal of the judgment, passed by the Sub-Judge, Muktsar.
(3.) WE have considered the facts of the case and given our very careful consideration to the submission, made by the respective parties. On a consideration of all the facts, brought on record, we are not persuaded that the authorities below have reached a correct finding on the issue. In our view, in reaching a finding, the authorities lost sight of the provision, contained in the Hindu Succession Act, which the assessee had reiterated, again and again, before the authorities. Since a consideration of the provision is necessary for reaching a finding in this appeal, we would reproduce Section 6 and Section 14 of the Hindu Succession Act : "6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship." "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.";

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