KALWA DEVADATTAM KALWA DEVADATTAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) NAGAPPA son of Pullanna resident Nandyal carried on business in yarn, drugs and forward contracts. He acquired in that business a considerable estate which was treated by him as property of the joint family of himself and his sons. NAGAPPA and his sons were assessed by the Incometax authorities to pay income-tax and supper-tax in the status of a Hindu undivided family as set out in the following table : <FRM>JUDGEMENT_880_AIR(SC)_1964Html1.htm</FRM>

(3.) THE Trial Judge held that the properties items 1 to 45 belonged in the relevant years of assessment to the joint family of Nagappa and his sons, and in the absence of an order recording partition under s. 25A (1) of the Indian Income-tax Act, the Income-tax Officer was bound to assess the undivided family even after partition on the footing that the family still continued to be joint. He further held that by virtue of s. 67 of the Indian Income-tax Act, no action questioning the assessment could be entertained by the courts, and that there was no irregularity in the proceedings for sale. But the court held that on 14/03/1947 division of property of the undivided family was in fact made between Nagappa and the plaintiffs: that the partition was effected with the object of defeating the claims of the creditors including the Income-tax authorities, but it was nevertheless partition which was intended to be overative. THE court further held that items 46 to 51 were not proved by the defendants to be the joint family property of the plaintiffs and Nagappa. In suit No. 54 of 1949 the learned Judge held following Schwebo K.S.R.M. Firm through Partner Govindan, alias Ramanathan Chettiar v. Subbiah alias Shanmugham Chettiar (1), that after a partition between the members of the joint Hindu family the sons' share in the joint family property cannot be ' proceeded against in execution so as to enforce the pious obligation of the sons to satisfy their father's debts under a decree passed against the father alone. THE learned Judge accordingly decreed suit No. 54 of 1949 holding that the only remedy of the firm Kumaji Sare Mal was to proceed by a suit to enforce the pious obligation of the plaintiffs to discharge the pre-partition debts.