- (1.) THE facts in this case are shortly as follows : Sir Deva Prasad Sarvadhikary was a well known solicitor of this Court. He died on 10th Aug., 1935, leaving his entire assets to his wife, Lady Sarvadhikary, absolutely. On or about the 15th June, 1938, Lady Sarvadhikary by a deed of gift disposed of certain immoveable properties in favour of her eldest son, Nirmal Chandra Sarvadhikary. The said Nirmal Chandra Sarvadhikary, who was governed by the Dayabhaga school of Hindu law, died intestate on the 29th Jan., 1940, leaving him surviving the petitioner, Biswa Ranjan Sarvadhikary, as his only son, and his widow, Sm. Satadal Bashini Sarvadhikary. They are his only heirs and legal representatives and became jointly seized and possessed of the said property. It is stated that ever since 1940 they had verbally effected a partition of the said immoveable properties, although there was no separation by metes and bounds. Since 1940 both the petitioner and his mother were separately assessed for payment of income-tax. The petitioner, Biswa Ranjan Sarvadhikary, has been assessed on that footing up to 1954-55 and his mother has been assessed on the same footing up to 1957-58. On or about the 10th Dec., 1959, the petitioner received a letter from the ITO, F-Ward, District II(2), Calcutta, a copy whereof is annexure "A" to the petition. In this letter it has been stated, inter alia, as follows : "After taking into consideration the provisions of the Hindu Women's Right to Property Act, 1937, and the Hindu Succession Act, 1956, I am of the opinion that the property income should have been assessed in the hands of the HUF. You are hereby requested to produce evidence in support of your contention on or before 15th Dec., 1959, failing which I shall be constrained to complete the assessments in the status of an HUF."
(2.) THE petitioner thereupon objected to the proposal of assessing the property income in the hands of the petitioner as in the case of a Hindu undivided family and this application has been made. The rule issued was a restricted rule and, in fact, only one point needs consideration in this case and has been pressed before me. The question is whether the income of the property in the hands of the petitioner, in the circumstances of the present case, can be assessed on the footing of income in the hands of an HUF. In my opinion, it is clear that it cannot be so assessed. Sec. 9(3) of the IT Act runs as follows : "(3) Where property is owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an assocition of persons, but the share of each such person in the income from the property as computed in accordance with this section shall be included in his total income."
(3.) IN this case, the property is owned by two persons and are in their joint possession. The next question is whether their respective shares are definite and ascertainable. The position in the case of a Dayabhaga family is quite clear. This is how it has been summarised by Mulla in his Hindu Law, 12th edition, page 520 : "According to the Dayabhaga law,... each coparcener has, even whilst the family remains undivided, a certain definite share in the joint property of which he is the absolute owner. The property is held in defined shares, though the possession is the joint possession of the whole family. Partition, according to that law, consists in separating the shares of the coparceners, and assigning to the coparceners specific portions of the property." ;