RAM DULARI T Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(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 :

(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.