TaxTMI 
TaxTMI 
TaxTMI 
2005 (8) TMI 46
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....ct, and also in directing him to record the finding relating to the partition as claimed by the assessee?" The dispute relates to the assessment year 1985-86. Briefly stated the facts giving rise to the present reference are as follows: M/s. Charan Dass (HUF) consisted of Sri Charan Dass, karta, Smt. Kans Rani, the wife of the karta, and two sons, namely, Sri Somnath and Sri Chandra Mohan. The wives and children of Sri Somnath and Chandra Mohan were also members of the said Hindu undivided family. Sri Charan Dass made a will dated April 30, 1984. The relevant portion of the will is reproduced below: "I further bequeath my total interest in my coparcenary property that I may be possessed of at the time of my death to the Hindu undivided ....
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....n the share of the deceased's widow in the coparcenary property. In this case the joint Hindu family consisted of karta, his wife, two sons and three daughters. On the death of the karta his widow claimed 7/24ths share in the joint Hindu family property in which her husband had a coparcenary interest. The Supreme Court observed that for the purpose of determining the share of the plaintiff (widow), two things become necessary to determine, first her share in her husband's share and second her husband's own share in the coparcenary property. The proviso to section 6 contains the formula for fixing the share of the applicant, while Explanation 1 contains a formula for deducing the share of the deceased. Interpreting the scope and width of Exp....
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....btedly 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 ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had ....
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....1981] 129 ITR 440 (SC); AIR 1978 SC 1239, the Supreme Court clarified the matter by making explicit observation that it is not concerned as to whether in reality a partition had taken place between the plaintiffs husband and his sons. The relevant portion is quoted below: "Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact 'a partition of the property had taken place', the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share." The real controversy in the above case before the Supreme Court was about the ext....
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....r volition to separate herself from the family". Further it has been held that the ownership of a defined share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. Thus, the gist of the aforesaid pronouncements of the Supreme Court is that there is no ipso facto partition of joint Hindu family properties immediately after the death of a male coparcener of the Mitakshara school having coparcenary interest in the coparcenary property. The fiction given by Explanation 1 has nothing to do with the actual disruption of the status of a Hindu undivided family. It freezes or quantifies the share of a female heir in the coparcenary property on account of the death of a copa....