BISWA RANJAN SARVADHIKARY Vs. INCOME TAX OFFICER

JUDGEMENT

(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 :

(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.

(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 :