TaxTMI 
TaxTMI 
1994 (8) TMI 266
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....bers of the family. A declaratory suit was filed on October 12, 1976, to put the matter beyond any doubt or dispute in future. The declaratory suit was decreed by an order of SubJudge, First Class, Muktsar, on December 14, 1976. On these facts, the assessee moved an application before the Income-tax Officer to pass an order under section 171. The Income-tax Officer examined the claim of the assessee, but he could not persuade himself to accept that the claim of the assessee should be allowed. In his view, there were no coparceners to claim partition of the property in September, 1974. What he meant was that the minors could not claim a partition. The partition could only be decreed through a suit which the minor could file through a legal guardian or the next friend, appointed by a court. According to him, this suit had been filed by Shri Kishore Chand, acting as the next friend of the minors, who was a maternal grandfather. He could not be the guardian, in law, for the two minors. He further held that, in any case, no division of Hindu undivided family has taken place in September, 1974, as alleged by the assessee. Accordingly, he rejected the claim of the assessee. The Appellate ....
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....ght of the provision, contained in the Hindu Succession Act, which the assessee had reiterated, again and again, before the authorities. Since a consideration of the provision is necessary for reaching a finding in this appeal, we would reproduce section 6 and section 14 of the Hindu Succession Act : "6. 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 of the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.'' "14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. " A careful perusal of these sections woul....
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.... judgment reads as under : "The suit of the plaintiff is for declaration to the effect that the plaintiffs are owners-in-possession of the properties, mentioned in paragraph A of the heading of the plaint and defendant No. 2 is owner-inpossession of the properties as mentioned in paragraph B of the heading, of the plaint. . . . " Without noticing that the court has not passed on the title by its judgment to the respective parties, they failed to notice that what was done, was that the court had declared the title and the right of the respective parties, which they already possessed. A question arises as to when this title or right passed as a result of the judgment of the court. According to the assessee, the respective rights and title passed to them as a result of the partition, effected through the auspices of the panchayat of relatives in September, 1974. The Income-tax Officer, if he did not want to accept this claim of the assessee, should not have only relied on the judgment passed in the declaratory suit, but should have shown that the rights and the title if they did not pass from the date on which panchayat was held in 1974, passed as a result of some other agreement or....
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....u undivided family till August 31, 1974. The Appellate Assistant Commissioner in his order, however, states that Shri Ved Parkash Loona had been assessed in the status of Hindu undivided family till March 31, 1974, and the Appellate Assistant Commissioner's statement appears to be based on the facts of the case annexed with the grounds of appeal in which it was mentioned that Shri Ved Parkash Loona had been assessed in the status of Hindu undivided family till assessment year 1974-75. In the statement of facts included in the appeal papers before the Tribunal, it is mentioned that the appellant was assessed in the status of Hindu undivided family till August 31, 1974, relevant to the assessment year 1975-76. It is apparent from this that it is not clear up to what assessment year Shri Ved Parkash Loona, Hindu undivided family, has been assessed as such, i.e., up to the assessment year 1974-75 or the assessment year 1975-76, but one thing is clear that even after the death of the karta on November 23, 1973, the assessment in the status of Hindu undivided family has been made for the assessment year 1974-75. The material question, therefore, is that as Shri Ved Parkash Loona died lea....
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.... the entire property of the Hindu undivided family has been subjected to partition without segregating the share of the deceased-karta, Shri Ved Parkash Loona, which was subjected to rule of succession, as provided in section 6 of the Hindu Succession Act. It has to be ascertained and debated as to what property of the Hindu undivided family has been subjected to partition and if it is found as a fact that the entire property of the Hindu undivided family including the share of the deceased-karta has been partitioned its effect on the validity of the partition sought to be recognised by the Incometax Officer under section 171 is to be considered and decided upon. In view of the above discussion, I feel that the question of partition has not been correctly gone into by the two lower authorities nor relevant facts found. Consequently, I consider it proper to set aside the orders of the Appellate Assistant Commissioner and the Income-tax Officer under appeal and restore the issue to the Income-tax Officer's file for fresh determination. I order accordingly. I may also take this opportunity to point out that the suit for partition filed before the Sub-Judge, First Class, Muktsar, appe....
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.... accordance with law. " The facts of the case are given in the proposed orders of the learned Members. My decision is to be read conjunctively with the proposed orders and, therefore, I deem it unnecessary to give the facts in detail. The facts, in a nutshell and necessary for disposal of the matter, are that Shri Ved Parkash Loona who was assessed as karta of his Hindu undivided family comprising himself, his wife, Smt. Sumitra Loona, two minor sons and two minor unmarried daughters, died on November 23, 1973. The Hindu undivided family headed by him owned movable and immovable properties. These properties were claimed to have been partitioned in September, 1974, among members through the intervention of a panchayat of relatives. Subsequently, on December 12, (sic) 1976, two minor sons of late Shri Ved Parkash, namely, Chand and Anurag, filed a suit before the Civil Judge, Muktsar, for a declaration of ownership of certain land allotted to them on the above partition. Smt. Sumitra Devi and her daughters were made defendants. The suit was decreed on December 14, 1976. The Assessing Officer was then moved under section 171 of the Act for recording a finding of partition effected in....
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....ly made before him. The learned Accountant Member disagreed with the above views. The basis of his order can be summarised as follows : (1) That as per the provisions of section 6 of the Hindu Succession Act, the interest of the late Shri Ved Parkash Loona as coparcener in the Hindu undivided family property devolved on his heirs through succession. His death did not bring to an end the Hindu undivided family. The other members continued as members of the Hindu undivided family with male coparceners governed by survivorship with their shares subject to fluctuations of increase or decrease due to changes in membership or strength of the Hindu undivided family. The aforesaid provisions of the Hindu Succession Act did not bring about a partition. (2) That even after the death of Shri Ved Parkash Loona on November 23, 1973, the Hindu undivided family was admitted to continue up to the assessment year 1974-75. This was clear from the facts stated before the first appellate authority. The claim, in the above background, that the Hindu undivided family properties were partitioned earlier needed reexamination by the lower authorities. (3) That the decree obtained from the civil court ap....
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....er as guardian of the minors, Chand and Anurag, had no right to claim partition on behalf of the minors. Thus, the alleged partition was illegal and contrary to law. Reliance in this case has been placed on article 308 of Mulla's Hindu Law (Fourteenth edition) as also on section 12 of the Hindu Minority and Guardianship Act, 1956, which prohibits appointment of a guardian in respect of undivided interest in joint family property of a minor managed by an adult member of the family. As per the proviso to the said section, the provision does not affect the power of a High Court to appoint a guardian in the above situation. In my view, there is some confusion in the order of the lower authorities as the distinction between the "guardian" and "next friend" for filing or defending a suit for and on behalf of the minors under the Civil Procedure Code has not been kept in view. Likewise, the purpose of the Hindu Minority and Guardianship Act has not been properly appreciated. The provisions of Order 32, rules 1 to 5, Civil Procedure Code, are reproduced below for a ready reference : " R. 1. Minor to sue by next friend. - Every suit by a minor shall be instituted in his name by a person wh....
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....roceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. (AP, KNT, MP, M). R. 3A. Decree against minor not to be set aside unless prejudice has been caused to his interests. - (1) No decree passed against a minor can be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor ; but the fact that by reason of such adverse interest of the next friend or the guardian for the suit, prejudice has been caused to the interests of the minor shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor. R. 4. Who may act as next friend or be appointed guardian for the suit. - (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit : Provided that the interest of such person is not ad....
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....statutory powers vested in the court. Thus any person who is a major and is of sound mind and has no interest adverse to the minor can act as a next friend and institute a suit in the name of the minor. The guardian, on the other hand, is appointed for minor defendants. Under the Hindu Minority and Guardianship Act, there are different kinds of guardians, natural, appointed by the court, etc., etc., to protect the interests of a minor in respect of his person and property. The powers of such guardian are defined in the Act. There is no mention of "next friend" who is appointed only where a minor is plaintiff and has altogether a different purpose to serve. In the present case, it is clearly mentioned in the plaint filed before the civil court that Shri Kishore Chand, maternal grandfather, has no interest adverse to the minors and is competent to file the suit on their behalf. Inadvertently, in place of "next friend" he is mentioned as "guardian" of the minors. But this mistake is not material and is irrelevant. The civil court, which under the law is bound to protect the interest of the minor, found the suit in order and decreed the same on December 14, 1976. Having regard to the ....
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....ias Taibai and Sulochanabai should be deemed to have become separated from the family. The facts of the above said case were as under. One Khandappa died leaving behind his wife, Hirabai, two sons and three daughters after the coming into force of the Act. Hirabai filed a suit for partition and separate possession of 7/24ths share in the joint family property on the basis of section 6 of the Act. She claimed that if a partition had taken place between her husband and her two sons immediately before the death of her husband, Khandappa, she, her husband and two sons would have each been allotted a one-fourth share in the family property and on the death of her husband the one-fourth share which would have been allotted in his favour had devolved in equal shares on her, her two sons and three daughters. Thus, she claimed the one-fourth share which had to be allotted in her favour on the notional partition and 1/24th share (which was onesixth of the one-fourth share of her husband), i.e., in all 7/24ths share. It was contended on behalf of the contesting defendant that she could not get the one-fourth share since actually no partition had taken place. Chandrachud C. J. rejected the sai....
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....he received or must be deemed to have received in the notional partition.' We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under section 6 of the Act files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation 1 to section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased t....
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....ysical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition ; '' Sub-sections (1) and (2) of the same section provide as under : " 171. (1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family. (2) Where, at the time of making an assessment under section 143 or section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family. '' In the case of Kalloomal Tapeswari Prasad (HUF) v. CIT [1982] 133 ITR 690, the Supreme Court after considering the above provision observed as under (headnote) : " Where there is no claim that a partition - total or partial - had taken place, or where it is made and disallowed, a Hindu undivided family which is hitherto being assess....
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....h a declaration of ownership was sought, were claimed to have been allotted to the minor plaintiffs. The suit was decreed by the civil court on December 14, 1976. The learned Judicial Member accepted the factum and validity of the partition as a family arrangement arrived through the panchayat of relatives. To the learned Accountant Member the suit before the Sub-Judge, Muktsar, appeared to be collusive. In his view, the competency of Lala Kishore Chand to file the suit should be examined afresh. He further observed, "it has to be seen as to what is the validity of a family arrangement seeking to partition the property which may have been brought about by the panchayat of relatives in September, 1974, in this case." It is clear that only the validity of partition through family arrangement was doubted by the learned Accountant Member and not its factum. After going through the relevant material, I am of the view that the facts of the present case were not properly appreciated by the learned lower authorities. No question of the claim of partition by minor coparceners or on their behalf by their grandfather in the civil suit or otherwise is involved. The partition of the joint fami....