TaxTMI 
TaxTMI 
1972 (6) TMI 14
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.... the net wealth of the assessee must be taken to be the amount of tax as finally determined on assessment and not the amount of tax computed on the basis of the return filed by the assessee. So far as the second question of law referred for our opinion is concerned, it is necessary to state a few facts in order to appreciate this question. The assessee is a Hindu undivided family and prior to 15th August, 1958, it consisted of Kantilal Manilal, his wife, Pushpavati, a son, named Dinesh, Usha, wife of Dinesh, and an unmarried daughter, Rupande. Dinesh died in a car accident in the United States of America on 15th August, 1958. Since the parties were Hindus, governed by the Hindu Succession Act, 1956, the interest of Dinesh in the coparcenary property devolved on his wife, Usha, and his mother, Pushpavati, by virtue of section 6 of that Act. It appears that Dinesh was also possessed of some separate property at the time of his death and this property too came to be inherited by his wife, Usha, and his mother, Pushpavati, under section 8 of the Hindu Succession Act, 1956. Soon after the death of Dinesh, Usha filed a suit against Pushpavati and other members of the Hindu undivided fam....
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....ds share belonged to the assessee and since that two-thirds share was of the value of less than Rs. 25,000, it was exempt from tax under section 5(1)(xiv), can be said to be incorrect. Now it is common ground that at the date of death of Dinesh, the assessee Hindu undivided family consisted of Kantilal Manilal, Pushpavati, Dinesh, Usha and Rupande. Dinesh being a male coparcener had interest in the properties of the Hindu undivided family. On the death of Dinesh, his interest in the properties of the Hindu undivided family would have ordinarily, under Hindu law as it stood prior to the enactment of the Hindu Succession Act, 1956, gone by survivorship to the other coparceners. But, the Hindu Succession Act, 1956, made a radical departure in the devolution of interest of a coparcener in coparcenary property on his death. There are two sections of the Act which speak on this subject: Section 6 and section 30. Section 6 is very material and since the determination of the question before us turns almost entirely on the true interpretation of that section, we may reproduce it in full. It reads, omitting portions immaterial: " 6. When a male Hindu dies after the commencement of this Act....
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....ceased coparcener in coparcenary property shall devolve not by survivorship but by testamentary or intestate succession, as the case may be, under the Act. If for example the deceased coparcener leaves him surviving a female relative specified in class I of the Schedule-and class I specifies both wife and mother-his interest in the coparcenary property would, according to the proviso, devolve by intestate succession. That is how the interest of Dinesh in the properties of the assessee Hindu undivided family devolved on Usha and Pushpavati on the death of Dinesh. But the question is: What would be the nature or quality of the interest which devolves? Would it be of the same nature and quality as that possessed by the coparceners whilst alive ? Would there be unity of interest between the surviving coparceners and the heirs on whom the interest of the deceased coparcener devolved ? Would that interest be a fluctuating interest as in the case of a coparcener ? Would the heirs step into the shoes of the coparcener wholly so far as his interest in the coparcenary property is concerned ? This spectrum of questions is answered by Explanation 1 which provides that, for the purposes of sect....
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....ere are two or more co-owners of property, the co-ownership may assume one of several forms : it may be coparcenary or joint tenancy or tenancy-in-common. These are the main three forms of co-ownership which are commonly in use in legal relationship in this country. Here coparcenary is out of question because the heirs in their capacity as such would indubitably not be coparceners with the other members of the Hindu undivided family. The only question, therefore, can be whether the Hindu undivided family and the heirs hold as joint tenants or as tenants-in-common. Now the two main features of a joint tenancy are the right of survivorship and the four unities, namely, unities of possession, interest, title and time. Both these features are absent in the case we are considering. There is neither right of survivorship nor unity of interest. The interest of neither the Hindu undivided family nor the heirs extends to the whole of the properties and there is no community of interest between them. What the Hindu undivided family and the heirs have are only defined shares in the properties which belonged to the Hindu undivided family at the date of death of the coparcener. There is common ....
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....ascertained properties belonging to the Hindu undivided family at the date of death of Dinesh, it must mean that they were tenants-in-common in respect of each of those properties. Each one of them had an undivided share in every item of those properties. It is true that none of them could predicate at any point of time that a particular identified part of any property belonged to him. So also it is equally true that if any of them sought to ascertain and separate his share in the properties, he would not get one-third share in specie from each of the properties : some properties may be given to him in lieu of his one-third share in the properties while some others may be given to the other tenants-in-common. But until partition takes place and common enjoyment is converted into enjoyment in severalty, each tenant-in-common has an undivided share in every one of the properties. There can, therefore, be no doubt that the assessee Hindu undivided family had only two-thirds share in the jewellery and the remaining one-third belonged to Usha and Pushpavati in equal shares. We may also look at the question from a slightly different angle. The whole of the jewellery could be taken into ....