STATE OF TAMIL NADU Vs. GANESA ODAYAR P

JUDGEMENT

(1.) A Division Bench of this Court referred the following question for the opinion of the Full Bench :

(2.) THE abovesaid question arose from the following facts. One Muthusamy Odayar of Pillarnathan Village was the grandfather of the assessee. THE assessee's father was one Palanisamy Odayar. Muthusamy Odayar had admittedly some ancestral property. Subsequently, from the income of that ancestral property as also from the personal earnings of grandfather, father and the assessee, some further properties were acquired. THE original ancestral properties as well as the subsequently acquired properties were the subject matter of partition between Muthusamy Odayar. Palanisamy Odayar and the assessee in an oral partition on 5-8-1954 and each one of them was thereafter enjoying the properties allotted to them separately. To confirm the oral partition, a partition deed came to be executed on 7-8-1959. According to the said partition deed, Muthusamy Odayar got 27.26 acres, Palanisamy Odyar 25.15 acres and the assessee got 37.98 acres. Certain lands were give away to five sisters of the assessees. Out of the lands got by the partition, the assessee settled 13.96 acres in the name of his minor daughter. Parimalam, and 13.34 acres in the name of another minor daughter, Vimala, under a document dated 25-11-1959. THE settlement deed stated that the settlement have been made by the assessee for the purpose of providing for the education, marriage etc., of the minor daughters. THE deed also stated that the title and possession have been given to the settle with immediate effect. Muthusamy Odayar settled the properties obtained by him in the partition in a settlement deed dated 15-5-1960, under which an extent of 13.10 acres had been settled in favour of his brother. Appathurai Odayar, and an extent of 14.21 acres in favour of his wife. Subbammal. Subsequent to these documents, the grandfather Muthusamy Odayar, grandmother, Subbammal and the father, Palanisamy Odayar have all died. THE assessee's father, Palanisamy Odayar, appears to have acquired 3.50 acres before his death. THE assessee also acquired 9.38 acres and 9.29 acres and held them in the benami names of Anthonisamy and Natesa Odayar. Having regard to the lands in the actual possession and enjoyment of the assessee, the assessment came to be made by the assessing authority treating the assessee as an individual.

(3.) SIMILARLY, while considering the provisions of sections 4(1), 8, 19. Sch. Class I of the Hindu Succession Act, 1956, the Supreme Court in the case of CWT v. Chander Sen [1986] 161 ITR 370/27 Taxman 330 held as under :