PADMALOCHAN PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) DECEASED , Brajamohan Panda, was assessed with agricultural Income Tax for the assessment year 1951 -52. His case was that there was a partition between him and his sons in the year 1949 and it is only the income from his share that was assessable and not the income of the entire property which belongs to all the sharers. His stand has been rejected by all the assessing authorities including the Tribunal. He died during the pendency of the second appeal before the Tribunal. His son, the present petitioner, has been substituted in his place. Being aggrieved by the order of the Tribunal, the petitioner asked for certain questions of law arising out of the order of the Tribunal to be referred to the High Court under Section 29(2) of the Orissa Agricultural Income Tax Act, 1947 (hereinafter referred to as "the Act"). Four questions were framed. The Tribunal rejected questions Nos. (2) and (3) but referred questions Nos. (1) and (4) which run thus :

(2.) THE recital of this document is clear that there was a previous partition in 1949, and the document was executed acknowledging the previous partition. In fact, a list of properties was appended to the document to show that all the properties were separately allotted to the members of the joint family in the partition of 1949. Law is well -settled that a document recording an acknowledgement of previous partition is not compulsorily registrable. (See Brajamohan Das v. Radhamohan Das and Deo Chand v. Shiv Ram Question No. (1) must, therefore, be answered in the negative, that is to say, a document recording acknowledgment of previous partition does not require registration.

(3.) THE order of the Tribunal rejecting the contention of a previous partition was based on its finding that the unregistered document of October 16, 1952, was inadmissible in evidence on account of non -registration, and on a further finding that the deed of gift executed by late Brajamohan Panda in favour of his daughter was not acted upon. That registered deed of gift contained a recital that there was a previous partition' in 1949. In the application for reference the petitioner says that as many as 35 documents were filed for consideration of the assessing authorities and the Tribunal. No counter has been filed on behalf of the State challenging this statement. At any rate, the order of the Tribunal does not show on what materials the assertion that there was a previous partition was rejected except by exclusion of the unregistered deed from consideration.