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V.B. Ramachandran Vs. First Gift-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Bangalore
Decided On
Judge
Reported in(1984)9ITD769(Bang.)
AppellantV.B. Ramachandran
RespondentFirst Gift-tax Officer
Excerpt:
.....the sole coparcener of the family. there was no other coparcener who could claim partition of the family properties. the wife and daughters have no right to claim partition of the huf properties.though the properties have been given by the deed called partition deed, the properties given therein would in fact amount to gift to the wife and children of the assessee.5. in v.v.s. natarajan v. cit [1978] 111 itr 539, the madras high court has held that the wife or the minor daughters of a hindu coparcener would not be entitled to a share on a partition of the properties of the joint family and they would have only a right to maintenance, etc., for which proper provision could be made in the course of any partition that takes place. where there is no scope for partition, there is no.....
Judgment:
1. By a deed of partition dated 14-3-1972 between Shri V.B.Ramachandran (the assessee), Mrs. Ammani Ramachandran (wife) and three daughters, viz., Leela Ramachandran, Lalitha Ramachandran and Lali Ramachandran who are all members of the HUF, the properties at No. 28, Sankey Road known as 'The Links' and at No. 21, Mahatma Gandhi Road known as 'The Graig' were partitioned amongst the members. The assessee claimed that since this was only the partition of the HUF properties, there was no element of gift. The GTO held that there should be at least two coparceners to constitute a Mitakshara coparcenary and even though a single male member along with female members can form a HUF, such a HUF cannot effect the partition of its properties. The female members have only a share on partition and they have no right to claim partition. The ancestral property in the hands of the assessee, who is the only coparcener of the HUF at the relevant time, is for all practical purposes at par with self-acquired property. Thus, he held that the partition made by the assessee was a gift made to his wife and children.

2. In appeal, the Commissioner (Appeals) held that the sole coparcener of HUF is regarded as the owner of the properties and, therefore, no question of its partition can arise. He held that though the properties have been given by deed called partition deed, the properties have been, in fact, gifted to the assessee's wife and children and the provisions of the Gift-tax Act, 1958 ('the Act') are applicable.

3. The learned Counsel for the assessee strongly urged that the assessee-family constituted of the assessee, his wife and three daughters. The properties belong to the HUF. Hence, the partition made between the assessee, his wife and three daughters is valid and there is no gift. The learned departmental representative submitted that the assessee was the sole coparcener of the HUF and so he had the right to deal with the property as his self-acquired property. The female members had no right to claim partition. Thus, the assessee has gifted the properties. In this connection, reliance was placed on few decisions.

4. We have considered the rival submissions. Admittedly, the assessee was the sole coparcener of the family. There was no other coparcener who could claim partition of the family properties. The wife and daughters have no right to claim partition of the HUF properties.

Though the properties have been given by the deed called partition deed, the properties given therein would in fact amount to gift to the wife and children of the assessee.

5. In V.V.S. Natarajan v. CIT [1978] 111 ITR 539, the Madras High Court has held that the wife or the minor daughters of a Hindu coparcener would not be entitled to a share on a partition of the properties of the joint family and they would have only a right to maintenance, etc., for which proper provision could be made in the course of any partition that takes place. Where there is no scope for partition, there is no possibility of making a provision therein. In that case, the partition was claimed between the assessee, who was the only coparcener, and his wife and minor daughters. The claim of partition was not accepted. On those facts, the Madras High Court held that the department was justified in refusing to recognise a partial partition said to have been effected in the family of the assessee in which he was the only coparcener and in which properties were allotted to his wife and minor daughters. In the case of S. Sadasivam v. CAIT [1979] 116 ITR 438, the Madras High Court held that as properties obtained by the petitioner in a partition between himself and his brother constituted ancestral properties in the petitioner's hands, neither his wife nor his daughter get any interest in them and no partition as known to Hindu law can really take place between the petitioner, his wife and his daughter. In the case of Pushpa Devi v. CIT [1977] 109 ITR 730, the Supreme Court has observed as under : . . .If a Hindu female, who is a member of an undivided family, impresses her absolute, exclusive property with the character of joint family property, she creates new claimants to her property to the exclusion of herself because, not being a coparcener, she has no right to demand a share in the joint family property by asking for a partition. She has no right of survivorship and is entitled only to be maintained out of the joint family property. Her right to demand a share in the joint family property is contingent, inter alia, on a partition taking place between her husband and his sons (see Mulla's Hindu Law, 14th edition, page 403, para 315). Under Section 3(2) and (3) of the Hindu Women's Rights to Property Act, 1937, her right to demand a partition in the joint family property of the Mitakshara joint family accrued on the death of her husband. Thus, the expression 'blending' is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock.

6. The ratio laid down in the above cases squarely apply to the instant case. The decision of the Madras High Court in the case of Nattuswamy v. GTO [1973] 91 ITR 142 relied on by the assessee's counsel has no application to the facts of the instant case. That case was a case where there was a settlement in favour of the assessee's sons, whereas in the instant case, the assessee is the sole coparcener and so he had absolute rights to deal with the properties. The wife and minor daughters of the assessee have no right to claim partition. The assessee, being the sole coparcener, had absolute rights in the HUF properties. Thus, the properties given to the wife and minor daughters of the assessee are only given by way of gift. Thus, we agree with the view of the lower authorities.

7. to 10. [These paras are not reproduced here as they involve minor issues.]


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