Satish Ciiandra, J.
1. This reference relates to the assessment years 1962-63, 1963-64 and 1964-65. The question of law referred for our opinion is :
'Whether the finding of the Tribunal that the minors had been admitted to the benefits of the partnership as individuals and, therefore, their share income was liable to be included in the total income of their mother under Section 64(2) of the Income-tax Act, 1961, was valid ?'
2. One Sheo Behari Avasthi was a partner in Messrs. Sheo Behari Avasthi and Company along with his wife Smt. Kalawati Devi and another person. He had a 6 annas share while his wife, Smt. Kalawati Devi, had a four annas share. He died on 13th March, 1952, Soon after, on 2nd April, 1952, the partners of the firm executed a fresh partnership deed under which Smt. Kalawati became the owner of 10 annas share. Though Sheo Behari Avasthi had left a minor son, no share was granted to him by this partnership deed. It appears that another son was born to Smt. Kalawati Devi some time after the death of Sheo Behari Avasthi, but even after that event no share was given to the minor sons. From 1952 to 1956 the share income representing 10 annas share in relation to the firm was being assessed in the hands of Smt. Kalawati Devi as an individual. On 13th October, 1956, the share capital of Rs. 45,172 originally belonging to Sheo Behari Avasthi, but which till then had been entered in the name of Sheo Behari Avasthi, was divided into two parts, each half being entered in the name of the two sons. On 11th August, 1958, the two minors were admitted to the benefits of the partnership with 19 p. share each. This fact is recorded in the partnership deed dated 20th September, 1958. Since 1958 till 1962 the share income of the two sons was assessed in their hands individually while the share income of the mother was assessed in her hands.
3. Under Section 64(2) of the Income-tax Act, 1961, the share income of the miners was liable to be added to the income of the mother. In view of the provisions of law the share income of the minors was added by the Income-tax Officer to the income of the mother in respect of the three assessment years now in dispute. This view was challenged by the assessee, namely, the mother, in appeal. The Appellate Assistant Commissioner accepted the contention of the lady that the minors were admitted to the benefits of the partnership as representatives of their Hindu undivided family and, therefore, their share of the income from the firm was not liable to be added to the income of the mother. The Commissioner of Income-tax went up in appeal to the Tribunal. The Tribunal held that on the death of the father the 6 annas share belonging to him, which was a self-acquired property, was inherited by his two sons by succession as tenants-in-common. In 1956 the capital, which had originally been invested by the father, was partitioned between his two sons and the two sons were admitted to the benefits of the partnership in their individual capacity. The plea that they were admitted to the benefits of the partnership as representatives of their joint Hindu family was repelled. Since they were held to have been admitted to the benefits of the partnership as individuals their income was liable to be added to that of their mother.
4. At the instance of the assessee the Tribunal has referred the question of law mentioned above for the opinion of this court. Assuming for the sake of argument that the learned counsel for the assessee is justified in his submission that on the death of the Sheo Behari Avasthi his share in the property (his 6 annas share along with the capital contributed by him) was inherited and came to his two sons by virtue of survivorship it cannot change the ultimate decision of the case because the crucial finding of the Tribunal is that a partition was effected in 1956 as a result whereof the two sons become separate owners in relation to the share capital invested by their father in this firm.
5. The Tribunal has relied upon the following points in support of this finding :
(1) On the death of the father the entire share capital was entered in the books of the firm as belonging to his widow. No share was allotted to the sons.
(2) For four years, that is, between 1952 to 1956 the entire income pertaining to the 6 annas share of Sheo Behari Avasthi was inherited by his widow and was assessed in her hands as her individual income.
(3) In 1956 the share capital originally invested by Sheo Behari Avasthi was divided into two equal shares, one-half each being allotted to the two minors sons.
(4) The two minor sons were allotted specific shares of 19 p. each.
(5) For several years after this event the share income from the firm pertaining to the 19 p. share each of the two minors was assessed in the hands of the two sons as an individual.
6. If on these facts the Tribunal came to the conclusion that there had been a partition between the two sons in or about the year 1956, we are unable to agree with the learned counsel for the assessee that the finding of the Tribunal suffers from any error of law. The finding is based on relevant material. On this finding of fact there can be no manner of doubt that the share income pertaining to 19 p. share belonging to each of the two sons was their individual income. It cannot possibly be the income of any joint Hindu family. It being their individual income, it was liable to be added to the income of their mother under Section 64(2) of the Income-tax Act.
7. The Tribunal was justified in upholding this action of the Income-tax Officer.
8. Our answer to the question referred to us is in the affirmative, in favour of the department and against the assessee. The Commissioner of Income-tax will be entitled to costs which are assessed at Rs. 200,