SATPAL BANSAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE question referred to this Court in this case is as to whether the Tribunal was justified in holding that the Karta being the sole surviving coparcener could not effect partition of the family property between himself and his wife.

(2.) LEARNED counsel for the parties are agreed that on this matter there is an apparent conflict between the two Division Bench decisions of this Court, namely, Kundan Lal vs. CIT/CWT (1980) 14 CTR (P&H) 115 : (1981) 129 ITR 755 and CIT vs. Narain Dass Wadhwa (1980) 14 CTR (P&H) 99 : [1980] 123 ITR 281. In the former case, it was held that a wife cannot claim partition of the HUF as a matter of right but the partition made by the Karta was upheld on the ground that there was an earlier partition between the father and his son and as the wife had not given up her share, she was entitled to claim it even later on. On the contrary, in the later case, where the HUF consisted of " K ". his mother and two sisters, it was held that " K " being a coparcener could claim partition and the partition made by him was upheld. In this case, " K " was the sole coparcener and there being no other person having proprietary interest in the property, partition could not be effected according to the rule laid down in the former case. As it is necessary to resolve the conflict between the two decisions, this case is ordered to be placed before my Lord the Chief justice for referring the same to a larger Bench. S. P. GOYAL ,J: (13-8-1986) The question referred to this Court in this case is as to whether the Tribunal was justified in holding that the Karta being the sole surviving coparcener could not effect partition of the family property between himself and his wife. As there was a conflict on this question between the two Division Bench decisions of this Court in Kundan Lal vs. CIT/CWT (supra) and CIT vs. Narain Dass Wadhwa (supra), the case was referred to the Full Bench. 2. The assessee is an HUF consisting of Sat Pal Bansal and his wife, Smt. Banti Bansal. Daring the course of the assessment proceedings relating to the year 1973-74, a claim was made before the ITO that a partial partition had been effected qua the family business capital at the instance of the wife of the Karta and each of them was credited with Rs. 30,374.78. The assessing authority rejected the claim on a number of grounds including the one that the wife could not claim partition nor could it be effected by the Karta, he being the sole surviving male member of the HUF. Having failed before the AAC, the assessee went in further appeal before the Tribunal who affirmed the order of the authorities below holding that neither could the wife demand partition under the Hindu law nor could the husband who was the sole surviving coparcener of the HUF divide the family property between himself and his wife at her instance.

(3.) NOW , we may consider the two decisions of this Court referred to above. In Kundan Lal's case, (supra) the HUF originally consisted of the father, three sons, the wife and a daughter. The three sons separated from the family on different dates and got their share out of the HUF properties. After their separation, the HUF consisted of the husband, his wife and their unmarried daughter. Although the wife was entitled to a share on each of the occasions when the three sons separated, none was allotted to her. Later on, a partial partition was effected by Kundan Lal between himself and his wife which was the subject matter of dispute. The Bench upheld the partial partition on the ground that when the partition took place between the father and the sons, the wife was entitled to a share and she, never having acquiesced or relinquished her right, could legitimately claim her share in the HUF property. As is evident from these facts, the HUF, when the partition took place for the first time, consisted of more than one coparcener or male member. When the partition amongst them took place, the wife was entitled to a share equal to that of the son. No share having been allotted, she was entitled under the law to claim her share and the partial partition made to recognise that right was, therefore, rightly sustained. Neither of the two learned counsel for the parties disputed the correctness of this decision.