1957 (2) TMI 77

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....rtition. At the date of the partition the assessee had sons and therefore on the partition taking place the property became joint family property as between the assessee and his sons. There was a partition between the assessee and his sons on the 9th of June, 1944, and on that partition again the property came to the share of the assessee. On the 22nd of August, 1947, the assessee sold the property and made admittedly a capital gain of Rs. 97,251. The Department seeks to bring this capital gain to tax. It is not disputed by the assessee that he is liable to pay the tax, unless his case falls within the second proviso to sub-section (1) of section 12B ; and that proviso runs as follows : "Provided further that the tax shall not be paya....

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....ld be said that the assessee was in possession of this property when he was not the sole owner or exclusive owner of this property and the property belonged to the joint family. Now it is well settled law as to the rights of coparceners in a joint Hindu family that it cannot be predicated of any property of any joint Hindu family that a particular share in it belongs to a particular coparcener. Hindu law recognises both community of interest and unity of possession in the joint family properties between all the members of the family. In other words, all coparceners are owners of the property and all coparceners are entitled to possession of the property. Could it, therefore, be said that during this period, when the joint family was the ....

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.... the property. It is perfectly true that, when you have a father constituting a joint family with his sons, he has a right to be in possession of joint family property and exclude the possession of the sons and the sons cannot have any grievance against any such exclusion so long as the joint family continues. But the possession here is not juridical, but actual possession. Although the father may be in actual possession, the juridical possession is still with the father and the sons jointly : it is not solely with the father. If we are right in the view that we take-and that aspect of the case is not challenged by Mr. Palkhivala-that the possession that we are dealing with here is juridical and not actual possession, then we fail to see....