S.P Goyal, J.:— The question refened to this Court in this case is as to whether the Tribunal was justified in holding that the karta being the sole surviving co-parcener could not effect partition of the family property bteween himself and his wife. As there was a conflict on this question between the two Division Bench decisions of this Court in Kundan Lai v. Commissioner of Income-tax-cum-Wealth-Tax, Patiala,1 and Commissioner of Income-Tax, Amritsar-I v. Narain Dass Wadhwa,2 the case was referred to the Full Bench.
2. The assessee is a Hindu Undivided Family (for short called H.U.F) consisting of Set Pal Bansal and his wife, Smt. Sat Pal Bansal. During the course of the assessment proceedings relating to the year 1973–1974. a claim was made before the Income-Tax Officer 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 it could be effected by the karta, he being the sole surviving male member of the HUF. Having failed before the Assistant Appellate Commissioner, the assessee went in further appeal before the Tribunal who affirmed the order of the authorities below holding that neither the wife could demand partition under the Hindu law nor the husband who was the sole surviving co-oparcener of the HUF could divide the family property between himself and his wife at her instance.
3. The answer to the question referred to us obviously depends upon the nature of the rights of the wife in the property of the HUF. It is not disputed that the female members of the HUF, according to the Hindu Law, have no share in the joint family property and their interest is confined to maintenance only. As stated in para 315 of the Hindu Law by Mulla, a wife cannot herself demand a partition of the HUF property, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. The share which is allotted to the wife or the mother, as held by the Full Bench of the Gujarat High Court in Commissioner of Gift-Tax, Gujarat-1 v. Mrs. Taramati Hariprasad Vasa,3 is in lieu of her right of maintenance and the allotment of such a share does not show that she had any right or interest in the HUE property. Before one can visualise or think of a partition, the property has to be owned by more than one person. Obviously the sole owner cannot divide the property. The grant of any share in the property by the sole surviving male member of the HUF to the wife or to the mother would be only in the nature of settlement of the property upon them in lieu of their right of maintenance and cannot by any stretch of reasoning be said to be a partition of the property amongst them. We are, therefore, of the considered view that no partition partial or otherwise would be possible in the case of HUF property consisting only of one male member or the sole coparcener. Similar view was taken by Gujarat High Court in Commissioner of Income-tax Gujarat-I v. Shantikumar Jagabhai . 1976 105 I.T.R 795. and the Madras High Court in T.J.K Raman (HUF) v. Commissioner of Income-tax . 1983 140 I.T.R 876. which we fully endorse.
4. Now, we consider the two decisions of this Court referred to above. In Kundan Lal's case (supra) 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 occassions when the three sons, separated but none was allotted to her. Later on, the 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 equal share to 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. Even none of the two learned counsel for the parties disputed the correctness of this decision.
5. In Narain Dass Wadhwa's case (supra) when the partial partition was effected, the HUF consisted of ‘K’, his mother and two sisters. The Beach upheld the said partition on the ground that the karta of HUF did not cease to be a co-parcener, and as a coparcener, he had the right to claim partition and effect the same amongst himself and his namily members. The fallacy in the reasoning is so obvious that it does not need any elaborate discussion to be refuted. As discussed above, the sole owner cannot effect partition of the property. The mother and the two sisters were not co-owners in the HUF property and they having only right of maintenance therefore, no partition could be effected by the karta of the HUF between himself and the said family members. The further observation of the Bench that even if the division of the the capital may be taken as family arrangement that would also amount to a partition, cannot be sustained. The allotment of any amount to the family members out of the HUF funds would at best be a settlement in lieu of the recognition of their right of maintenance which cannot by any stretch of reasoning be described as arrangement in the nature of partition of HUF properties. This case, therefore, was not correctly decided and is hereby overruled.
6. The learned counsel for the assessee then referred to the following observations of this Court in I.T.R No. 27 of 1977 (Ram Narain Paliwal v. The Commissioner of Income-Tax . I.T.R No. 27 of 1977.) decided on October 18, 1985:
“It would hardly matter whether mother was entitled to claim partition or not, and even if Ram Narain was the sole male-coparcener, he could effect partition. The Income-Tax law and particularly section 171 of the Act does not envisages that if members of H.U.F are mother and son, such H.U.F is debarred in law in effecting complete or partial partition of H.U.F assets.”
7. In that case when the partial partition was effected HUF consisted of Ram Narain, his mother, the wife, four minor sons and one daughter. There being thus more than one coparcener or male member of the HUF, partial partition could validly be effected by the karta. The observations noted above, therefore, are in the nature of obiter dicta. Otherwise in view of our conclusions stated above, the observation made by the Bench to the extent that the karta would not be debarred from effecting partition even if he is the sole surviving co-parcener or male members has to be overruled.
8. The learned counsel for the assessee also relied on a Supreme Court judgment in Apporva Shantilal Shah v. Commissioner of Income-tax Gujarat-I . 1983 141 I.T.R 558. and a judgment of the Allahabad High Court in Commissioner of Income-tax v. Gobind Narain . 1975 101 I.T.R 602. but we need not discuss these decisions in detail because both of them are distinguishable on facts. In each of these decisions, the HUF consisted of more than one co-parcener or male member and as such any observation made therein has no bearing on the present case.
9. In the result, the decision in Narain Dass Wadhwa's case (supra) is overruled and the question referred to us is answered in the affirmative, that is, against the assessee and in favour of the Revenue. No costs.
Sd/- Prem Chand Jain, C.J
Sd/- Sukhdev Singh Kang, J.
R.M.S
Order accordingly.