COMMISSIONER OF INCOME TAX Vs. PARAMESWARI DEVI SULTANIA

JUDGEMENT

(1.) THE petitioners in this revision are the Commissioner of Income-tax and the Union of India represented by its Secretary in the Ministry of Finance. THEy as defendants Nos. 6 and 7 in Title Suit No. 6 of 1992 pending in the court of the Subordinate Judge, Sonepur, commenced by opposite party No. 1, filed a petition calling upon the learned trial judge to decide the preliminary issue as to whether the suit is maintainable being hit by Section 293 of the Income-tax Act, 1961. THE learned judge having decided the issue against the petitioners by the impugned order, this revision has been filed challenging its validity.

(2.) A brief narration of certain basic facts is necessary to appreciate the contention raised. The case of opposite party No. 1 is that she is the daughter of Banshidhar Agarwal through his first wife, Mani Debi, whereas opposite parties Nos. 2 to 6 (defendants Nos. 1 to 5) are the sons and daughters of the said Banshidhar Agarwal through his second wife, Kamil Debi. Mani Debi, the mother of opposite party No. 1 died in the year 1958, She had stridhari property of about 200 tolas of gold ornaments. She left behind a will bequeathing the gold ornaments to opposite party No. 1 and other children of Banshidhar in proportion to the number of daughters of each of such children to meet the dowry demand and marriage requirements of the daughters. After the death of Mani Debi, the gold ornaments were in the custody of Banshidhar till February 10, 1990, when he died. After the death of Banshidhar, the ornaments came to remain in the custody of his eldest son (opposite party No. 2--defendant No. 1) because they were not partitioned. Following the death of Banshidhar, opposite party No. 1 and other legatees decided for partitioning the ornaments, and agreed to divide the same into 14 parts in view of the fact that Banshidhar had 14 daughters and she (opposite party No. 1--plaintiff) would get 5 parts out of 14 parts as she herself has five daughters and opposite parties Nos. 2 to 6 (defendants Nos. 1 to 5) would get equal parts of ornaments having regard to the number of daughters they have. It is her allegation that before the partition was effected, the Income-tax Officers raided the house of opposite party No. 2 on March 23, 1990, and seized the gold ornaments in question weighing 2,128 grams. A petition was filed by opposite party No. 1 before the Income-tax Officer for the return of the seized gold ornaments but the prayer was refused. Thereafter she issued notice to petitioner No. 1 which yielded no result. Therefore, the suit has been filed for partition of suit properties.