HANUMANMAL PERIWAL Vs. COMMISSIONER OF WEALTH TAX

JUDGEMENT

(1.) THE question referred by the Income-tax Appellate Tribunal, Patna Bench, Patna, under section 27(1) of the wealth-tax Act, in relation to the assessment year 1960-61, the corresponding valuation date being the 31st October, 1959, is :

(2.) THE point for determination is whether, after partition effected in a Hindu undivided family, the assets that come to a separated member, who had no male issue at the time, can be said to belong to him absolutely. It cannot be disputed in respect of such assets, when a son is subsequently born to or adopted by the separated member, the coparcenary consisting of the father and the son will own them and the son by his birth will have an interest and share in those assets; he can also claim partition if he so likes. In other words, those assets will belong to the coparcenary or Hindu joint family. THE wealth-tax authorities have taken the view that the assets received by the assessee on partition belong to him absolutely, although they were capable of being owned by a Hindu undivided family consisting of the assessee and his son or sons that may be born or adopted subsequently. This finding is now under attack.

(3.) IN the Ceylon case referred to above, the distinguishing features were not only that the temporary reduction of the coparcenary unit to a single individual did not convert what was previously the joint family property of the undivided family into separate property of the surviving coparcener but also the female members of the family had the right of maintenance and other rights to that the potentiality in respect of addition of another coparcener to the family by a predeceased coparceners widow is not different from that of a separated coparcener himself, for he can beget or adopt a son to himself. Apparently it may be so, but in the former case, the potentiality is not dependent upon the coparcener and, therefore, of a binding nature upon him. To me, it appears that the main difference between a sold surviving coparcener in possession of ancestral property and a coparcener getting a moiety of ancestral property on partition lies in the character of the property held by such person; with one, it is unbroken ancestral property of the joint family, and with the other, it is a part of it after the coparcenary is broken. IN the former case, the coparcenary unit is reduced to a single individual; and in the latter case, the coparcenary unit is broken to different units. The Ceylon case, therefore, cannot provide a complete comparison with the present case.