AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2005 (4) TMI 12
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....a Hindu undivided family comprising of Sri Prem Sundar as karta, his wife, Smt. Meera Prem Sundar and his minor son Master Sunil Prem Sundar. Sri Prem Sundar expired on June 23, 1978. The assessee claimed that on account of the death of the karta, her right in the Hindu undivided family property was defined and as per the provisions of section 6 read with Explanation 1 of the Hindu Succession Act, it was not necessary for her to claim any partition in the property of the Hindu undivided family as per section 171(9) of the Income-tax Act. The assessee claimed to be governed by the Mitakshara coparcenary law. The claim of the assessee was ultimately accepted by the Tribunal. The controversy involved according to the assessee in the present reference is covered by the judgment of the Supreme Court in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440. We have heard Sri A.N. Mahajan, learned standing counsel for the Department, and Sri Suyash Agrawal, learned counsel for the assessee-respondent. Section 6 of the Hindu Succession Act provides devolution of interest in the coparcenary property. It say that when a male Hindu dies after the commencement o....
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....y is a narrower body than the joint family. Only males acquire by birth an interest in the joint and coparcenary property and can be members of a coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcener property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of share of a coparcener cannot be definitely ascertained since it is always capable of fluctuating. It increases by the death of coparcener and decreases on the birth of a coparcener. A joint family, however may consist of female members. It may consist of a male member, his wife, his mother and unmarried daughters. It has been held by the Supreme Court in the case of Gowli Buddanna v. CIT [1966] 60 ITR 293 and Smt. Sitabai v. Ramchandra, AIR 1970 SC 343 that the Hindu joint family may consist of a single male member, his wife and daughters. It is not necessary that there should be two male members who constitute a joint family vide N.V. Narendranath v. CWT [1969] 74 ITR 190 (SC). Under Mitakshara Hindu law there is continuity of own....
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....gine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs'. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascer....
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....dow in the coparcenary property. It was not concerned as to whether a partition takes place immediately after the death of a member of a coparcenary of the coparcenary property. Therefore, this case cannot be treated as an authority for the proposition that a partition takes place in the joint Hindu family, as soon as a male coparcener dies. In the case in hand, the question involved is whether there is necessarily a disruption of the joint Hindu family immediately after the death of a coparcener. The above case was examined by the Supreme Court in a subsequent judgment in State of Maharashtra v. Narayan Rao Sham Rao Deshmukh [1987] 163 ITR 31, wherein it has been observed that its judgment in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 (SC) is an authority for the proposition that when a female member who inherits an interest in the joint family property under section 6 of the Hindu Succession 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 o....