Citation Codes

Equivalent Citations

citation codes

Case Number

Income-tax Reference No. 436 of 1974

Judges

S.C Deb
Sudhindra Mohan Guha, JJ.

Acts

provisions of s. 11 of the Hindu Adoptions and Maintenance Act, 1956.
HINDU SUCCESSION ACT 1956
SECTION 6 HINDU SUCCESSION ACT 1956
s. 8 of the Hindu Succession Act, 1956,
s. 6 of the Hindu Succession Act, 1956,
s. 9 of the Hindu Succession Act, 1956,
s. 25A of the Indian I.T Act, 1922.3.
s. 256(1) of the I.T Act, 1961,
Hindu.27. Section 8

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Smart Summary

Concise Analytical Summary of the Legal Opinion

Factual and Procedural Background

This reference under s. 256(1) of the Income-tax Act, 1961 poses a question whether, on the facts, the Tribunal was right in holding that the shares of income from (a) property at Nohar (Rajasthan), (b) the Thirani building (Darjeeling), and (c) the assessee's share of income from the firm M/s. Maheswari & Co. could be included in the assessment of the assessee in the status of a Hindu Undivided Family (HUF).

Relevant facts as recorded in the opinion: - The house properties (Nohar and Thirani building) were originally Mitakshara coparcenary properties of Iswardas Thirani, his three sons (including the assessee Malchand Thirani) and the brothers; Iswardas also held a separate property in the form of a partnership share in M/s. Maheswari & Co. - A registered deed of partition dated 23 February 1959 divided the undivided family; the partition was recorded under s. 25A of the Indian Income-tax Act, 1922. Under the deed, Iswardas received the two house properties and was thereafter assessed as an individual in respect of the income from those houses; his wife and daughters received other provisions and some relinquished interests by disclaimer in favour of the sons. - Iswardas died intestate on 3 June 1963. The ITO held that the heirs (widow, sons and daughters) inherited under s. 8 of the Hindu Succession Act, 1956, and concluded that one-third shares of the properties and of the firm had become properties of the HUF of the assessee and his sons; accordingly the ITO assessed one-third of the income of these properties as income of the HUF, rejecting the assessee's claim that such income was not includible in the HUF assessment. - The appellate authorities dismissed the assessee's appeals. The reference now reaches the court, which frames the legal question identified above.

Legal Issues Presented

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share of income from the Nohar property, the Thirani building (Darjeeling), and the one-third share of income from the firm M/s. Maheswari & Co. could be included in the assessment of the assessee in the status of a HUF.

Arguments of the Parties

Revenue (Mr. B. K. Bagchi) — principal contentions as recorded

Argued that the one-third income of the properties and firm was includible in the HUF assessment.
Contended that the Hindu Succession Act, 1956 did not apply to the two house properties because, after the partition, Iswardas became the sole coparcener of those houses and they remained ancestral in his hands; consequently, on his death they passed by survivorship to his sons (Mitakshara rule).
Argued that after partition Iswardas, his wife and unmarried daughters constituted a Hindu joint family which continued after his death and that adoption (or adoption by the widow) could operate to create coparcenary interests, so that sons and grandsons held interests as coparceners.
Alternatively argued that the proviso to s. 6 of the Hindu Succession Act, 1956 applied, producing devolution under the Act but still resulting in the sons' coparcenary/ancestral interests.
As to the firm share, argued that the widow, sons, grandsons and daughters inherited under s. 9 of the Act, and that the share was ancestral in the sons' hands, bringing grandchildren into coparcenary interest.
Cited authorities in support (for example, CIT v. Dr. Bahubhai Mansukhbhai) and urged the court to follow those decisions rather than contrary authorities (e.g., Ram Rakshpal).
Conceded at one point that the department's pleaded case in earlier proceedings was that the Hindu Succession Act did apply to the properties left by Iswardas.

Assessee's Position

The record shows the assessee's claim before the ITO and below was that the income of the properties was not includible in the HUF assessment; however, the opinion does not set out a detailed account of the assessee's legal arguments in support of that claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
CIT v. Dr. Bahubhai Mansukhbhai [1977] 108 ITR 417 (Guj)	Adduced by the revenue in support of the proposition that the properties remained ancestral / devolved by survivorship or otherwise supported revenue's interpretation of succession.	The court noted the revenue relied on this authority but did not follow it; the court rejected the revenue's arguments and answered the reference in favour of the assessee.
Commissioner of Income-Tax, U.P. v. Ram Rakshpal, Ashok Kumar [1968] 67 ITR 164 (All)	Identified in the opinion as taking a contrary view to Dr. Bahubhai Mansukhbhai on relevant succession questions.	The court recorded the existence of the conflict among High Court decisions but did not follow the line of authority relied upon by the revenue.
Addl. CIT v. P.L. Karuppan Chettiar [1978] 114 ITR 523 (Mad) (Full Bench)	Full Bench followed Ram Rakshpal (All) and differed from Dr. Bahubhai Mansukhbhai (Guj).	The court noted this decision but, given its statutory analysis and reliance on Supreme Court authority (Arunachalathammal), did not adopt the position urged by the revenue.
Arunachalathammal v. Ramachandran Pillai — Civil Appeal No. 115 of 1967 (Supreme Court), judgment dated 20 Feb 1970	Held that s. 6 of the Hindu Succession Act has no application to property received by a member of a joint family on partition.	The court relied on this Supreme Court statement as authoritative support for the conclusion that s. 6 (and its proviso) could not be invoked where the property was received on partition; it treated this precedent as removing any argument that s. 6 applied to the house properties in this case.
Tirupurasundari Ammal v. Srinivasam Pillai, AIR 1972 Mad 264	Madras High Court decision which quoted the Supreme Court judgment in Arunachalathammal regarding non-application of s. 6 to partition-received property.	The court referred to this Madras decision as consistent with Arunachalathammal and relied on the same principle to hold s. 6 inapplicable to the house properties here.

Court's Reasoning and Analysis

The court's reasoning proceeds step-by-step from the facts and statutory text as follows:

Characterisation of properties after partition: The court emphasised that after the registered deed of partition (23 Feb 1959) the two house properties ceased to be coparcenary properties; Iswardas received them in the partition and was not thereafter a coparcener with any surviving coparcener in respect of those properties.
Limitations on novel pleas: The court observed that the department (and Mr. Bagchi) had not previously contended below that a new joint family of Iswardas, his wife and the unmarried daughters continued such that the properties remained joint family properties; the court held that the revenue could not take this new plea at the reference stage (para 14), though it proceeded to consider it "assuming" it could be raised.
Adoption not available to create coparcenary: The court relied on s. 11 of the Hindu Adoptions and Maintenance Act, 1956 and concluded that Iswardas could not validly adopt a son during his lifetime, nor could a son be adopted to him by his widow after his death so as to create a coparcener in respect of those properties (para 17).
Interpretation of the Hindu Succession Act, 1956 as a code: The court noted the Act "amends and codifies" intestate succession law; s. 4 of the Act renders earlier inconsistent Hindu law ineffective where inconsistent (para 19). The Act's structure treats coparcenary interest (s. 6) separately from "all other properties" (s. 8) (paras 20–21, 26).
Narrow construction of s. 6: The court emphasised that s. 6 uses the phrase "Mitakshara coparcenary property" and operates by survivorship only where, at the time of death, there is an interest in a Mitakshara coparcenary property and there is at least one surviving coparcener. Consequently s. 6 cannot apply where the deceased left no coparcener or where the property had ceased to be coparcenary by partition (paras 21–23).
Inapplicability of proviso to s. 6: The proviso to s. 6 applies only when specific pre-conditions exist (a coparcener survives and specified female relatives are present). The court found those pre-conditions were not met here because Iswardas had no surviving coparcener and the properties were not coparcenary at his death (para 24).
Reliance on Supreme Court authority: The court relied on the Supreme Court's decision in Arunachalathammal v. Ramachandran Pillai (and its quotation in Tirupurasundari) for the proposition that s. 6 has no application to property received by a member on partition (para 25). That authority removed any tenable argument that s. 6 or its proviso applied to the house properties here.
Application of s. 8 and s. 19: With s. 6 inapplicable, the court held that s. 8 governs devolution of "the property of a male Hindu dying intestate"; s. 19 makes heirs in Class I take per capita, simultaneously, as tenants-in-common and not per stirpes or as joint tenants. Thus, the widow, sons and daughters inherited absolutely in equal shares per capita (paras 27–31, 29–30).
Effect of female heirs' disclaimers: The widow and daughters had relinquished their interests by deeds of disclaimer in favour of the sons; accordingly each son became absolute owner of one-third share in all the properties (para 38).
Consequence for coparcenary/ancestral character: Because the daughters' inherited shares were not ancestral in their hands and had been relinquished, and because the sons became absolute owners of one-third shares, the respective sons' sons (i.e., grandsons) had no interest during the lifetimes of their fathers. The Mitakshara survivorship rule and the concept of ancestral property (as it operated prior to the Act) were held to be abrogated to the extent the Act (ss. 6 proviso, s. 8, s. 19 etc.) applies (paras 31–38).
Income inclusion conclusion: On the statutory and factual findings—partition recorded, properties received on partition, no surviving coparcener in respect of those properties at Iswardas's death, and disclaimers by female heirs—the court concluded that no part of the income of the properties was includible in the assessment of the assessee in the status of a HUF (paras 38–39).

Holding and Implications

Holding: The court answered the reference question in the negative and in favour of the assessee. The court concluded that the share of income from the Nohar property, the Thirani building, and the one-third share in the firm M/s. Maheswari & Co. were not includible in the assessment of the assessee in the status of a HUF. The court delivered this result and made no order as to costs (para 39).

Core Ruling: The reference is answered in the negative; the shares of income in question are not to be included in the assessee's HUF assessment.

Implications / Consequences: - Direct effect on the parties: Each son became the absolute owner of a one-third share in the properties following the disclaimers by female heirs; consequently their respective sons (grandsons) had no interest in those properties during the lifetimes of their fathers and no part of the income of these properties is includible in the assessment of the assessee in the status of a HUF. - Costs: The court expressly made no order as to costs. - Precedential impact: The court's analysis applied the statutory code (notably ss. 6, 8 and 19 of the Hindu Succession Act) and the Supreme Court's authority in Arunachalathammal. The opinion does not purport to announce a novel general principle beyond its statutory interpretation and application to the facts; it resolves the reference by applying the Act and existing authority to the factual matrix before it.

This summary is based exclusively on the content of the provided opinion and does not add or infer facts or arguments beyond those contained in the opinion.

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Malchand Thirani And Sons v. Commissioner Of Income-Tax, West Bengal.

Deb, J.:— The question in this reference under s. 256(1) of the I.T Act, 1961, reads as follows:

“Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the share of income from property at Nohar in Rajasthan, share of income from Thirani building, Darjeeling, and share of income from the firm, M/s. Maheswari & Co., could be included in the assessment of the assessee in the status of the HUF?”

2. Prior to the partition hereinafter stated, the properties at Nohar and the Thirani building (hereinafter referred to as the “house properties”) mentioned in the question were the Mitakshara coparcenary properties of the assessee, Malchand Thirani, his two brothers and his father, Iswardas Thirani, since deceased. Iswardas had a separate property, namely, a share in the firm, M/s. Maheswari & Co., in which he was a partner. He was assessed as an individual in respect of his share of income from this firm during his lifetime. Iswardas, his wife, his three sons, and two unmarried daughters were members of a HUF. This undivided family was divided and all the properties were duly partitioned by a registered deed of partition dated February 23, 1959, in which Iswardas, his wife, his aforesaid sons and daughters were parties. This partition was duly recorded by the ITO, Darjeeling, under s. 25A of the Indian I.T Act, 1922.

3. Under this deed Iswardas got the aforesaid house properties and was thereafter assessed as an individual in respect of the income of these two house properties.

4. His wife got some other properties under this deed. Similarly, his three separated sons also got some other properties and provision for maintenance was also made for his two unmarried daughters.

5. Iswardas died intestate on June 3, 1963. He left the aforesaid persons and two other married daughters. Thereafter, the widow and the four daughters relinquished their interests in all the properties which are the subject-matter of this reference in favour of the sons of Iswardas by executing deeds of disclaimer.

6. In the assessment proceedings, the ITO held that on the death of Iswardas, his widow, three sons and four daughters inherited in equal shares the properties left by him under s. 8 of the Hindu Succession Act, 1956, and the sons became the owners of one-third share in these properties in view of the aforesaid deeds of disclaimer. He further held that the house properties were ancestral properties and the one-third share of the firm became the ancestral property in the hands of the sons and, therefore, under the Mitakshara law one-third share of all these properties became the properties of the HUF of the assessee and his sons. He, therefore, assessed the one-third income of all these properties as income of the HUF of the assessee and his sons by rejecting the claim of the assessee that the income of these properties was not includible in the assessment of the assessee in the status of a HUF.

7. Both the appellate authorities have dismissed the appeals filed by the assessee. As Mr. B.K Bagchi, learned counsel for the revenue, has discarded the reasons given by the Tribunal as untenable in law and has argued the case from his, own point of view, we will, therefore, deal only with his arguments, for, in our opinion, the question should be answered in favour of the assessee.

8. Mr. Bagchi argues that the one-third income of all these properties is includible in the assessment of the assessee in the status of a HUF. In support of this contention, he argues that the Hindu Succession Act, 1956, does not apply to these two house properties, for, according to him, Iswardas became the sole coparcener of these two house properties after the partition and these two house properties did not become the separate properties of Iswardas but remained as ancestral properties in his hands, and, therefore, on his death these two properties have passed by survivorship to his sons and the grandsons under the Mitakshara law.

9. He also argues that after the partition Iswardas, his wife and the unmarried daughters constituted a Hindu joint family and this joint family continued after the death of Iswardas who could adopt a son during his lifetime or a son could be adopted to him by his widow and, therefore, on the death of Iswardas, his sons and grandsons became equally interested in these two house properties along with the widow and the unmarried daughters of Iswardas under the Mitakshara law.

10. Mr. Bagchi alternatively argues that the proviso to the main s. 6 of the Hindu Succession Act, 1956, is applicable to these two house properties and, therefore, these two properties have devolved upon the widow, sons, grandsons and the daughters of Iswardas in equal shares on his intestate death. In any event, these two properties, he argues, are ancestral properties in the hands of the sons and, therefore, their sons have acquired interest in these properties as coparceners of their respective fathers.

11. As to the share in the aforesaid firm, Mr. Bagchi argues that the widow, sons, grandsons and the daughters of Iswardas have inherited it under s. 9 of the Hindu Succession Act, 1956, and, in any event, this property is an ancestral property in the hands of the sons and, therefore, their sons are also interested in it as coparceners of their respective fathers and accordingly the conclusion reached by the ITO was correct.

12. As the arguments of Mr. Bagchi are fully supported by the case of CIT v. Dr. Bahubhai Mansukhbhai, [1977] 108 ITR 417 (Guj), he submits that we should follow it in which the Gujarat High Court has differed from the case of Commissioner Of Income-Tax, U.P v. Ram Rakshpal, Ashok Kumar, [1968] 67 ITR 164, decided by the Allahabad High Court. He further submits that we should differ from the case of Addl. CIT v. P.L Karuppan Chettiar, [1978] 114 ITR 523, in which the Full Bench of the Madras High Court has followed the case of Ram Rakshpal, Ashok Kumar, [1968] 67 ITR 164 (All) and has differed from the case of Dr. Babubhai Mansukhbhai, [1977] 108 ITR 417 (Guj).

13. As a joint family continues with two female members after the death of a male member of that family and in view of his aforesaid arguments we will not refer to the other cases cited by Mr. Bagchi as those cases do not at all deal with the Hindu Succession Act, 1956.

14. It may now be noted here that Mr. Bagchi rightly concedes before us that it was not the case of the department at any stage of the proceedings below nor it has been found by the Tribunal that, after the partition, Iswardas, his wife and the unmarried daughters constituted a joint family or that these two house properties were the joint family properties of that family. Therefore, in our opinion, Mr. Bagchi is not permitted to take this new plea.

15. Assuming, however, that he can take this new plea, we will deal with his arguments. In our opinion after the partition Iswardas was not a coparcener with anyone. His sons separated from him and also from each other. These two house properties ceased to be the coparcenary properties after the partition. His wife got certain properties under the deed of partition in lieu of her claim against the joint family properties and, therefore, she had no further claim against these two properties received by Iswardas.

16. Provision for maintenance was also made for the unmarried daughters and although they could enforce their claim for maintenance, if any, against these two house properties in view of the provisions of the deed of partition, yet after the death of Iswardas, in our opinion, they have inherited these two house properties in equal shares along with their mother, brothers and two other married sisters under s. 8 of the Hindu Succession Act, 1956. These female heirs have relinquished their interests in these two house properties in favour of Iswardas and, therefore, they ceased to have any claim whatsoever against these two house properties.

17. Further, Iswardas was not competent to adopt any son during his lifetime nor a son could be adopted to him by his widow in view of the mandatory provisions of s. 11 of the Hindu Adoptions and Maintenance Act, 1956. Iswardas also did not become a father of any other son after the partition. Therefore, no one could be or become a coparcener of Iswardas relating to these two house properties.

18. Mr. Bagchi argues that the Hindu Succession Act, 1956 (hereinafter referred to as “the Act”), does not apply to these two house properties, but at the same time concedes that the case of the department all through was that this Act was applicable to all the properties left by Iswardas. The only argument made before the Tribunal by the departmental representative was that having regard to the provisions of s. 6 of the Act, the properties left by Iswardas must be treated as properties belonging to the HUF of the assessee and when the assessee would come under s. 6 of the Act, it is not necessary to look forward and see whether the assessee's case would be covered by s. 8 of the Act. The Tribunal, however, held that s. 8 of the Act was applicable. Therefore, this new plea is not also available to Mr. Bagchi. Even on the merits, we are not impressed by his arguments.

19. This Act amends and codifies the law relating to intestate succession of Hindus. The provisions of Hindu law which are in any way inconsistent with or contrary to the provisions of this Act ceased to have any effect in new of s. 4 of the Act.

20. So far as a male Hindu dying intestate is concerned, the Act deals with his interest in a coparcenary property and also with his other properties.

21. The main s. 6 of the Act says that when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members and not in accordance with this Act.

22. This section uses the words “Mitakshara coparcenary property” and not the words “joint family property”. The Mitakshara rule of survivorship comes into play only where there are at least two coparceners and one of them dies leaving the other coparcener. Therefore, the main s. 6 of the Act cannot apply where a male Hindu dies without leaving a coparcener, for it is elementary that inheritance can never remain in abeyance.

23. The wife and the unmarried daughters of Iswardas were not coparceners of Iswardas under the Hindu law. Iswardas and his sons separated from each other. They ceased to be the coparceners after the partition. These two house properties also ceased to be the coparcenary properties after the partition and, therefore, the main s. 6 of the Act cannot apply to these two house properties.

24. Similarly, the proviso to main s. 6 of the Act has no application because at the time of his death Iswardas had no coparcener, nor these two house properties were his coparcenary properties. Moreover, the proviso to main s. 6 applies only where a male Hindu dies intestate leaving at the time of his death an interest in a coparcenary property and leaving behind him a coparcener and a female relative specified in Class I of the Schedule or a male relative claiming through a female relative specified in that class. It is only when these pre-conditions are fulfilled his interest in the Mitakshara coparcenary property shall under the proviso devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

25. Further, “section 6” of the Hindu Succession Act, 1956, “has no application to property received by a member of a joint family on partition” as said by the Supreme Court in its judgment dated February 20, 1970, in Civil Appeal No. 115 of 1967 (Arunachalathammal v. Ramachandran Pillai) and quoted by the Madras High Court in Tirupurasundari Ammal v. Srinivasam Pillai, AIR 1972 Mad 264 and, therefore, it can no longer be argued that s. 6 or the proviso to it is applicable to these two house properties.

26. Barring s. 5, this Act is a comprehensive and self-contained code on all matters relating to intestate succession of all the Hindus. Section 6 deals with the coparcenary interest in the Mitakshara coparcenary property. Section 8 deals with all other properties of a male Hindu.

27. Section 8 says that the “property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter”. It uses the words “the property of a male Hindu”. No word of limitation is attached to this expression. Therefore, this expression includes all properties, whatever their nature and character may be, except the interest of a male Hindu in a Mitakshara coparcenary property which has been taken out of the purview of this section by the main s. 6 of the Act where it applies. But, again, where the proviso to the main s. 6 is applicable, the interest of a male Hindu dying intestate in a coparcenary property must devolve by intestate succession under this Act, that is to say, under s. 8 of the Act and not by survivorship.

28. In other words, the Mitakshara rule of survivorship does not apply where the proviso to main s. 6 is applicable. Further, the interest of a coparcener in the coparcenary, property is his property during his lifetime and, therefore, it falls squarely within the word “property” used in s. 8 which does not make any distinction between a property received by a coparcener on partition and his self-acquired property.

29. Under s. 8 of the Act property of a male Hindu on his intestate death devolves, firstly, upon his heirs specified in Class I of the Schedule and if there is no such heir then upon the heirs specified in Class II and if there is no such heirs then upon his agnates and in the absence of the agnates upon his cognates.

30. The heirs specified in Class I of the Schedule take the property simultaneously and to the exclusion of all other heirs as stated in s. 19 of the Act. Section 19 further provides that if two or more heirs succeed together to the property of an intestate, they shall take the property per capita and not per stirpes and also as tenants-in-common and not as joint tenants.

31. The proviso to main s. 6 and s. 8 read with the Schedule and s. 19 of the Act clearly show that the nature and the character of an ancestral property under the Mitakshara law have been completely abrogated where these provisions of the Act are applicable. An ancestral property inherited by a son on the intestate death of his father under these provisions of the Act cannot, therefore, be a coparcenary property at all in his hands.

32. Generally speaking, under the Mitakshara Law, a father, his sons, grandsons and great grandsons are the coparceners in respect of the coparcenary property. On the death of any one of them his interest in the coparcenary property passes not by succession but by survivorship to the surviving coparceners. A separate property of the father inherited by a son on the intestate death of his father is an ancestral property and he, his sons, grandsons and great grandsons are interested in it as coparceners. On the death of any one of them his interest in that property passes by survivorship and not by succession under the Mitakshara law.

33. A grandson whose father is alive and a great grandson whose father or grandfather is alive are not the heirs under s. 8 read with the Schedule to the Act. In other words, they are totally excluded from inheritance not only in respect of a separate property of a male Hindu but also in respect of his interest in the coparcenary property where the proviso to the main s. 6 applies which abrogates the rule of survivorship.

34. A married daughter and also a married daughter of a predeceased daughter of a male Hindu are heiresses under s. 8 read with class I of the Schedule to the Act. They are members of the joint family of their respective husbands. The property inherited by them either under the proviso to the main s. 6 or under s. 8 of the Act is not an ancestral property in their respective hands. They are also not coparceners of anyone in respect of any property whatsoever, for a female can never be a coparcener under the Mitakshara law.

35. As a property inherited by a female relation is neither an ancestral property nor a coparcenary property in her hands, her sons do not acquire any interest whatsoever in that property during her lifetime. Further, s. 14 says that any property possessed by a??? male Hindu, whether acquired before or after the commencement of th???Act, shall be held by her as full owner thereof and not as a limited owne???

36. Under the Mitakshara law a coparcener ???annot dispose of his interest in the coparcenary property by a will, but ???is bar has been totally removed by s. 30 of the Act and where the provi???to the main s. 6 applies his interest in the coparcenary property on his ???ath devolves by testamentary succession and not by survivorship.

37. Under the Mitakshara law a property ???erited by a daughter on the intestate death of her father is not an ancest ??? property in her hands, as already stated. Similarly, under the Act a ??? operty inherited by a female relation of a male Hindu is not an ancestral roperty in her hands. Under the Act it is her absolute property and no or has any right whatsoever in it during her lifetime. She is entitled to ???spose of this property in any manner she likes and the property so transfi???red by her does not become the ancestral property in the hands of th??? transferee. And it is beyond dispute that relinquishment of the entire int???est in a property is a transfer of that property.

38. Where a father is alive his male and fen ??? issues are totally excluded from inheritance by s. 8 and also by the provi??? to main s. 6 of the Act for the obvious reason that they will inherit the pr???erty absolutely and in equal shares on the intestate death of their fathe??? in terms of the provisions of the Act. And, in view of the aforesaid pro??? sions, including ss. 4(1)(a), 14 and 19 of the Act and the Schedule, it will be ??? orrect to say that the rule of survivorship and the Mitakshara rule of inte??? ate succession to the separate property of a male Hindu including the natu??? and character of an ancestral property and the capacity of a son in which ???inherits the property of his deceased father under that law are still appli??? able where the aforesaid provisions of the Act are directly applicable. Therefore, on the facts and circumstanc ??? of the case, it must be held that the widow, the sons and all the daughte??? of Iswardas have inherited all these properties absolutely under s. 8 of t???Act in equal shares and per capita and not per stirpes, and as tenant ???in-common and not as joint tenants in terms of s. 19 of the Act. The wow and the daughters have relinquished their interest in all these prop??? ties in favour of the sons of Iswardas as admitted by Mr. Bagchi before ???s and, therefore, each son of Iswardas became the absolute owner of one-t???rd share in all these properties. Hence, their respective sons have ??? interest whatsoever in these properties during the lifetime of their respec???e fathers and no part of the income of these properties is includible in the assessment of the assessee in the status of a HUF.

39. In the premises, we are not impressed by the arguments of Mr. Bagchi and answer the question in the negative and in favour of the assessee without making any order as to costs

Sudhindra Mohan Guha, J.:— I agree.

Malchand Thirani And Sons v. Commissioner Of Income-Tax, West Bengal.

Concise Analytical Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revenue (Mr. B. K. Bagchi) — principal contentions as recorded

Assessee's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Malchand Thirani And Sons v. Commissioner Of Income-Tax, West Bengal.

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