RAM DULARI T Vs. COMMISSIONER OF INCOME TAX
LAWS(DLH)-1983-9-31
HIGH COURT OF DELHI
Decided on September 21,1983

T.RAM DULARI Appellant
VERSUS
COMMISSIONER OF INCOME TAX Respondents




JUDGEMENT

S.S.CHADHA, J. - (1.)THESE references under s. 256(1) of the IT Act, 1961 (hereinafter called "the Act"), at the instance of the assessee, raise a common question for the asst. yrs. 1963-64, 1964-65, 1965-66 and 1966- 67. The question formulated for the opinion of this Court is this :
"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the status of the assessee in respect of the estate left by her husband, late Shri Om Parkash, was that of an individual and as such one-half income therefrom was assessable in her hands ?"

(2.)THE assessee, Smt. Ram Dulari, claimed the status of an HUF, but she was assessed as an individual. She is the widow of late Shri Om Parkash, son of late Shri Jwala Prasad. Shri Jwala Prasad died on September 20, 1957, while Shri Om Parkash passed away on June 24, 1960. THEy were survived by their widows, namely, Smt. Jhando Devi and Smt. Ram Dulari. In the assessment years under reference, the income that has been assessed in the hands of Smt. Ram Dulari as an individual is in respect of the estate of her late husband, Shri Om Parkash. THE ITO observed that on the death of Shri Om Parkash, there was no male member in the family and, therefore, the status of the assessee had to be taken as that of an individual. He further held that the adoption of Shri Rishi Kumar made on May 1, 1960, by Shri Om Parkash which was declared void by the civil Court on February 12, 1967, had the effect that there was no male member in the family. THE appeals of the assessee before the AAC succeeded and the ITO was directed to take the status of the assessee as that of an HUF. THE Revenue took the matter in appeal to the Tribunal. THE Tribunal expressed the view that the self-acquired property of the husbands, which is inherited by the widows, does not become the joint family property as originally it was never the property of the joint family, that there is no presumption that the property is a joint family property, that, therefore, it has to be presumed that the property left by late Shri Om Parkash was his self- acquired property and that in the order for the asst. yr. 1962-63, the Tribunal assumed that the estate of Shri Om Parkash was his self- acquired property but took the view that it became HUF because he had adopted a son. THE Tribunal further noticed the fact that the adoption had been declared void by the civil Court and that had the effect of making the adoption void from its very inception. It held that where a male dies leaving self-acquired property, his widow, in the absence of other heirs, gets it by intestate succession and it is her absolute individual property.
Sec. 2(31) of the Act defines a person and includes an HUF. The expression "HUF" has not been defined in the Act. The reason for the omission evidently is that the expression has a well-known connotation under the Hindu law and for this reason the Legislature did not want to define the expression separately in the Act. The expression "HUF" is, therefore, to be construed in the sense in which it is understood under the Hindu law. The joint Hindu family, with all its incidents, is a creature of law. A joint Hindu family property normally is joint in food, worship and estate. The property of a joint family may consist of ancestral property, joint acquisition and of self- acquisition thrown into the common stock but, in its absence, the family may still be joint Hindu family. In determining whether a particular property belongs to the HUF or is individual property, there are two classes of cases, each requiring a different approach. In one class of cases, the question to be considered is whether the property which already belonged to a subsisting HUF ceased to have that character merely because the family was represented by two widows. In this class would come the estate of late Shri Jwala. Prasad. On the death of Shri Jwala Prasad, the estate left by him would become ancestral in the hands of his son, Shri Om Parkash, and, consequently it was ancestral property in the hands of Shri Om Parkash. In CIT vs. Veerappa Chettiar (1970) 76 ITR 467 (SC), it was held that it is not predicated of a Hindu joint family that there must be a male member in existence. Even after the death of the sole male member, so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues. It is for this reason that the status of the assessee who is the widow of late Shri Om Parkash has rightly been taken as that of an HUF for the asst. yr. 1965-66 in respect of the estate of late Shri Jwala Prasad. So long as the property which was originally of the joint family remains in the hands of the widows as the members of the family and was not divided among them, the property would be joint family property.

In the other class of cases, the question would be whether the property, which did not belong to a subsisting undivided family, has truly acquired the character of a joint family property in the hands of the assessee. It is open to a coparcener or a member of an HUF to own individual property. He is at liberty to impress his self-acquired property with the character of HUF property. Where self-acquired property is an immovable property or even a share in a firm, the member can impress it with the character of HUF property. There is no legal bar or impediment against such conversion but it has to be established as a fact in each case. There is no presumption in law that a particular property is a joint family property. No material was placed on record before the IT authorities that the properties which were never the properties of a joint Hindu family, had been impressed with the character of HUF property. In the assessment order for 1962-63, the Tribunal assumed that the estate of Shri Om Parkash was his self-acquired property; even then no attempt was made by the assessee in the assessment years in question to show that it was HUF property in the hands of the Karta, Shri Jwala Prasad, or, it was ever impressed with the character of HUF property by late Shri Om Parkash. It is not refuted before us that the declaration of the adoption of Shri Rishi Kumar was void ab initio. The property thus devolved on the assessee by intestate succession and the assessee cannot be assessed in the status of a member of HUF. For the above reasons, we answer the reference in the affirmative i.e., against the assessee but on the facts and circumstances of the case, we make no order as to costs.

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