ORDER
A. Kalyanasundharam, Accountant Member
1. This is a departmental appeal on the issue whether on the death of a male, who had taken certain shares earlier on partition of his family HUF in which partition his wife was not allotted a share and whether the share so taken by the male is held by him in his individual capacity or in the capacity of a HUF comprising himself and his wife. On behalf of the department, Mr. Ruhela was of the view that once a partition has been effected, then the members of the family hold their respective shares in their individual capacities. Further, in case the wife was not allotted a share at best it could be considered to have been relinquished by her in favour of the others. According to him, once a family has been partitioned, there could be no formation of any HUF between any member of the HUF and his wife. He relied on CIT v. K. Satyanarayan Murty [1984] 147 ITR 140 (Ori.) and also CIT v. Anil J. Chinai [1984] 148 ITR 3 (Bom.) for the proposition. He further submitted that consequent to partition the male held the property as his individual property and even assuming that there was a HUF consisting of himself and his wife, then also by the theory of sole surviving coparceners he had the right of alienation and disposal of the properties in any manner he thought fit and this particular right is at par with his individual property. Therefore, on no ground it could be held that on the death of the male only half share of the property passed. Mr. Bhandari relied on Sarabhai Tribhovandas v. CED, Smt. Dhani Devi and Jhavermal v. CED [1973] 89 ITR 96 (Raj.) and the Tribunal decision in Smt. S. Harish Chandra v. ACED [1977] Tax. 46(6)-I (All.).
2. We have heard the parties and considered the several decisions that have been relied on by both the parties. The Orissa High Court in the case of K. Satyanarayan Murthy (supra) relying on Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 (SC) held that though the husband and the wife are inseparable till either of them are dead, but by this alone it cannot be concluded that there is a HUF between himself and his wife. The Bombay High Court in the case of Anil J. Chinai (supra), was considering the matter of gift by the sole surviving coparcener, who in his family, had only daughters and the donees selling such gifted amounts and earning capital gains. The Rajasthan High Court in Smt. Dhani Devi and Jhavermal (supra), the issue was determination of the property passing on death of a sole surviving coparcener and his widow adopting a son and the issue was whether the son could be deemed to be in existence at the time of death of the karta. In this case, the date of death is 17-3-1954. This was prior to the enactment of the Hindu Adoptions and Maintenance Act, 1956. In the above-mentioned case, it was held that the adoption would relate back to the date of the karta and, accordingly, it was held that the HUF existed on the date of death. This particular case would not apply to the facts of the case in view of the enactment of the Hindu Adoptions and Maintenance Act. Section 12 of this Act provides that a child would be treated to have been adopted from the date of the adoption and on that same day the child would be deemed to have severed all his connections with his natural parents and family. Therefore, it is improbable to say that a child would be deemed to have been adopted on the date of death of a person but would be deemed to have severed his connections with his natural family from a subsequent date. Therefore, the Gujarat High Court case of Sarabhai Tribhovandas (supra) was a case of death of a lady and the effect of her death on the HUF. In that case the sole surviving coparceners was the grandson of the deceased and the issue under consideration was whether on the death of a lady there would be a notional partition or not. This particular case is of no help to the assessee as the facts in the instant case are the property passing consequent to the death of a male coparcener. However, the Andhra Pradesh High Court in the case of CIT v. Dara Seshavataram [1981] 129 ITR 339 had an occasion to consider the issue of what happens subsequent to the partition of a bigger HUF in which the wife of the karta does not receive any share and whether the karta and his wife could be said to be a HUF in respect of the share received by the karta. Their Lordships were of the view that under the Hindu law the husband is duty bound to maintain his wife throughout her life and even after the partition of the bigger HUF, the wife lives with the husband and there is every probability of a son being born to them and in view of the fact that she not having received any share in the partition with a pure intention that the husband would maintain her throughout her life goes to indicate that the property received by the husband was held by him in the capacity of the HUF. This particular decision of the Andhra Pradesh High Court is exactly opposite to the decision arrived at by the Orissa High Court. We are inclined to follow the decision of the Andhra Pradesh High Court for the reason that to our mind the reasonings given by their Lordships of the Andhra Pradesh High Court appeals to our mind. We are, therefore, of the view that the property was held by the deceased in the capacity of a karta of the HUF by himself and his wife and consequent to his death only 50 per cent of the property passes. We, therefore, uphold the order of the Controller and dismiss the appeal of the department.
H.S. Ahluwalia, Judicial Member
3. I agree.