S.P.GOYAL, J. - (1.) THE question referred to this Court in this case is as to whether the Tribunal was justified in holding that the Karta being the sole surviving coparcener could not effect partition of the family property between himself and his wife.
(2.) LEARNED counsel for the parties are agreed that on this matter there is an apparent conflict between the two Division Bench decisions of this Court, namely, Kundan Lal vs. CIT/CWT (1980) 14 CTR (P&H) 115 : (1981) 129 ITR 755 and CIT vs. Narain Dass Wadhwa (1980) 14 CTR (P&H) 99 : [1980] 123 ITR 281. In the former case, it was held that a wife cannot claim partition of the HUF as a matter of right but the partition made by the Karta was upheld on the ground that there was an earlier partition between the father and his son and as the wife had not given up her share, she was entitled to claim it even later on. On the contrary, in the later case, where the HUF consisted of " K ". his mother and two sisters, it was held that " K " being a coparcener could claim partition and the partition made by him was upheld. In this case, " K " was the sole coparcener and there being no other person having proprietary interest in the property, partition could not be effected according to the rule laid down in the former case. As it is necessary to resolve the conflict between the two decisions, this case is ordered to be placed before my Lord the Chief justice for referring the same to a larger Bench. S. P. GOYAL ,J: (13-8-1986) The question referred to this Court in this case is as to whether the Tribunal was justified in holding that the Karta being the sole surviving coparcener could not effect partition of the family property between himself and his wife. As there was a conflict on this question between the two Division Bench decisions of this Court in Kundan Lal vs. CIT/CWT (supra) and CIT vs. Narain Dass Wadhwa (supra), the case was referred to the Full Bench. 2. The assessee is an HUF consisting of Sat Pal Bansal and his wife, Smt. Banti Bansal. Daring the course of the assessment proceedings relating to the year 1973-74, a claim was made before the ITO that a partial partition had been effected qua the family business capital at the instance of the wife of the Karta and each of them was credited with Rs. 30,374.78. The assessing authority rejected the claim on a number of grounds including the one that the wife could not claim partition nor could it be effected by the Karta, he being the sole surviving male member of the HUF. Having failed before the AAC, the assessee went in further appeal before the Tribunal who affirmed the order of the authorities below holding that neither could the wife demand partition under the Hindu law nor could the husband who was the sole surviving coparcener of the HUF divide the family property between himself and his wife at her instance. The answer to the question referred to us obviously depends upon the nature of the rights of the wife in the property of the HUF. It is not disputed that female members of a HUF, according to the Hindu law, have no share in the joint family property and their interest is confined to maintenance only. As stated in para 315 of the Hindu law by Mulla, a wife cannot herself demand a partition of the HUF property, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. The share which is allotted to the wife or the mother, as held by the Full Bench of the Gujarat High Court in CGT vs. Mrs. Taramati Hariprasad Vasa [1969] 74 ITR 211, is in lieu of her right of maintenance and the allotment of such a share does not show that she had any right or interest in the HUF property. Before one can visualise or think of a partition, the property has to be owned by more than one person. Obviously, the sole owner cannot divide the property. The grant of any share in the property by the sole surviving male member of the HUF to the wife or to the mother would be only in the nature of settlement of the property upon them in lieu of their right of maintenance and cannot by any stretch of reasoning be said to be a partition of the property amongst them. We are, therefore, of the considered view that no partition, partial or otherwise, would be possible in the case of an HUF consisting only of one male member or the sole coparcener. Similar view was taken by the Gujarat High Court in CIT vs. Shantikumar Jagabhai [1976] 105 ITR 795 and the Madras High Court in T. G. K. Raman (HUF) vs. CIT (1982) 26 CTR (Mad) 440 : [1983] 140 ITR 876, which we fully endorse.
(3.) NOW , we may consider the two decisions of this Court referred to above. In Kundan Lal's case, (supra) the HUF originally consisted of the father, three sons, the wife and a daughter. The three sons separated from the family on different dates and got their share out of the HUF properties. After their separation, the HUF consisted of the husband, his wife and their unmarried daughter. Although the wife was entitled to a share on each of the occasions when the three sons separated, none was allotted to her. Later on, a partial partition was effected by Kundan Lal between himself and his wife which was the subject matter of dispute. The Bench upheld the partial partition on the ground that when the partition took place between the father and the sons, the wife was entitled to a share and she, never having acquiesced or relinquished her right, could legitimately claim her share in the HUF property. As is evident from these facts, the HUF, when the partition took place for the first time, consisted of more than one coparcener or male member. When the partition amongst them took place, the wife was entitled to a share equal to that of the son. No share having been allotted, she was entitled under the law to claim her share and the partial partition made to recognise that right was, therefore, rightly sustained. Neither of the two learned counsel for the parties disputed the correctness of this decision.;