RANGALAL MODI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under the Income -tax Act. This Court by its order dated 3rd January 1949, directed the Income -tax Appellate, Tribunal to state a case under Section 66 (2) of the Act. In pursuance of that order the question that has been referred for decision of this Court is stated by the Tribunal in the following terms:

(2.) TO appreciate the question at issue, the facts and the circumstances of the case as they appear from the records require to be elucidated. They are as follows:

(3.) ONE Hariram was the father of Rangalal. The original joint family consisting of Hariram and bis sons including Rangalal appears to have saperated some years previously, i.e., in or about 1934, and we are not directly concerned with the same. After the disruption of the original joint family, Rangalal with his sons constituted s joint family and it is with the alleged disruption thereof we are at present concerned, This family owned or had interest ia properties described in Sohs. A to E of the registered partition -deed dated 25th October 1943. They consist of lands, buildings and mills. It would appear that one of the sons of Rangalal by name Manalal had brought a suit for partition and got his share in the family property by a decree dated 10th August 1942. The present partition is therefore concerned with the remaining properties of the joint family and is between Rangalal and his three other sons, Basudev, Kanhailal and Chaturbhuj. The partition -deed recites that on 9th November 1942, that is, the day following the Dewali, in 1942, the parties namely, Rangalal and his three sons had divided all business in four equal shares and that since then they were carrying on business in four equal shares and that since then they were carrying on business in partnership, with defined shares and on terms specified in separate deeds of partition executed by the said parties. It also recites that the parties had divided ornaments, utensils, etc., amicably as between themselves and that since 9th November 1942, they were completely separated in interest, mess and property, from each other and that each of the parties is separately dealing with their respective properties and separately managing their respective families. The partition -deed accordingly deals with only immovable property of the family and it recites that parties 1 to 4 have amicably divided the same, some by metes and bounds and some by ascertainment of definite shares as set forth in the Schedules. A reference to the schedules shows that the properties in Schedule (A) were alloted to party No. 1 namely, Bangalal, those in Schedule (B) to party no. 2, Basudev Praead, Schedule (c) to party No. 3, Kanhailal and in Schedule (D) to party no. 4 Chaturbhuj. Properties in Schedule (E) however were not partitioned by metes and bounds and it is stated in the partition -deed para. 6 as follows: