1. These five appeals, though they are against different orders the AAC, involve a common question and are, therefore, disposed of by this single order.
2. The facts leading to these matters are that there was a bigger HUF in the name and style of Vijay Kumar Malaiya (V-201). Since quite long past this bigger HUF became a partner in the firm of Vijay Oil Mills represented by its karta, Shri V.K. Malaiya, on 25-10-1973, the capital of the bigger HUF stood at Rs. 2,89,980. On that date there was a partition in the HUF to the extent that the whole invested capital was partitioned among the members of the bigger HUF. However, Smt. Premwati Malaiya, wife of Shri V.K. Malaiya, though she accepted the partition did not take any share. The rest five members got Rs. 72,495 each.
Subsequent to the partition, Shri V.K. Malaiya continued to remain a partner in the firm but claimed the status of a smaller HUF contending that even after the said partition, his wife, Smt. Premwati Malaiya., remained joint with him forming a smaller HUF as there was still an obligation on the husband to maintain her. The WTO, however, was of the opinion that since Smt. Premwati Malaiya had duly accepted the partition and taken a nil share, she cannot be treated as joint with the assessee after this partition, so far as the capital invested in this firm was concerned. As regards the maintenance of the wife after the partition, the opinion of the WTO was that it was only a case of partial partition under Section 171 of the Wealth-tax Act, 1957('the Act') and the question involved was income earned out of that capital and the order under Section 171 had nothing to do with the family relationship with the parties. The relationship and other obligation of the family members remained least affected by an order under Section 171. The mere fact that the wife had a right of maintenance under Section 18 of the Hindu Adoption--and Maintenance Act, 1956, did not have the effect of continuation of joint family since even a divorced wife had a right to maintenance under Section 125 of the Code of Criminal Procedure, or Section 25 of the Hindu Marriage Act, 1955. He, therefore, was of the opinion that the status of smaller HUF in respect of this capital claimed by the assessee along with his wife was not allowable and once the capital in the firm had been partitioned, the correct status of the assessee was that of an individual. Accordingly, the WTO completed the assessments in the case of the HUF only as a protective measure.
3. The assessee went in appeals to the AAC who was of the opinion that the WTO had rightly completed the original assessments of the assessee in the status of an individual, rejecting his claim for status of HUF.He, therefore, upheld the inclusion of the capital amount of Rs. 65,000 in the individual assessment of the assessee. Simultaneously, he cancelled the protective assessments made in the hands of the HUF of which the assessee was alleged to be karta.
4. WT Appeal No. 167 has been filed by the assessee in his individual capacity against the order of the AAC upholding the inclusion of the share of capital in his individual assessment. WT Appeal Nos. 147 and 148 have been filed by the department against the cancellation of the protective assessments made by the WTO on the HUF and WT Appeal Nos.
163 and 164 have been filed by the assessee in his capacity as the karta of the HUF which is again directed against the order of the AAC cancelling the assessments of the HUF.5. We have heard the representatives of the parties at length in all these appeals. The question as to what would be the status of the assessee qua the capital invested in the firm after a partition of the bigger HUF is not free from difficulty. On behalf of the department, reliance was placed upon a judgment of the Madras High Court in Seethammal v. CIT  130 ITR 597 for the proposition that a single person, male or female, cannot constitute a family and assessment in the status of HUF can be made only when there are more than one member, but this case would be no authority on the subject as it related to the assessment of a widow on whom the entire property had devolved whereas in the present case the assessee's claim is that the family still consisted of the assessee and his wife. Same is the position so far as the Madhya Pradesh High Court judgment in CIT v. Vishnukumar Bhaiya  142 ITR 357 is concerned. In this case again, the assessee was unmarried at the time of partition of the HUF of which he was a member and all that was held was that his status being an individual before his marriage, the fact of his marriage could not alter the position.
Further, reference was made to another authority in Ramratan v. CED  142 ITR 863 (MP) (FB) which related to the estate duty matter of the deceased. However, again this case has no bearing no the fact whether a person can constitute a HUF along with his wife because that was not the question directly involved therein, rather it has been specifically mentioned in the judgment that the deceased and his wife could constitute a HUF.6. Now, as regards a family consising of an assessee and his wife reference on behalf of the revenue has been made to a decision of the Madhya Pradesh High Court in CIT v. Dhannamal  12 Taxman 59, but in this case the wife had been allotted a share in the partition and the ground of holding that the husband was liable to be assessed in respect of his own share obtained at the time of partition as an individual and not as a HUF was only because the wife had been granted a share. Their Lordships specifically observed that had the wife not been allotted any share in the partial partition, the matter was simple and there would have been no difficulty in holding that the assessee and his wife constituted a HUF. So this case again does not fully govern the issue.
7. On behalf of the assessee reference was made to CIT v. Krishna Kumar  143 ITR 462 (MP) (FB) wherein it was held that an assessee could constitute a HUF along with himself and his wife with no other members.
The distinguishing feature in the present case, however, is that although the wife was not given any share, according to the revenue, the wife did not want to get any share and she should be deemed to have surrendered her share. We have gone through the language of the alleged partition deed and it has been mentioned therein that Smt. Prem-wati Malaiya did not want to take any share in the investment of the family in the firm. This does not, however, necessarily mean that she ceased to be a member of the HUF. Therefore, the decision in DhannamaVs case (supra) is distinguishable in the sense that there the wife had expressly been given a share in the family property. Since no share had been given to the wife in the present case, it is immaterial whether she wanted it or not because it can be legitimately argued for the assessee that the wife wanted to continue to remain joint with her husband and, therefore, did not insist upon a share. The partition deed does not show that she had expressly relinquished her share in the said capital and declared that she would not choose to remain a member of the family qua this capital. Since she still continued to live with her husband, the latter was, in our opinion, justified in claiming the status of a HUF qua the share allotted to him at the time of partition.
If the partition was between him and his brothers, naturally, he would constitute a HUF along with his wife. So the crucial test is the lady's getting a share and not her inclination to do so. She has not got a share. She can certainly be a member of the family qua the property in which the share had not been granted to her. She may have chosen to be joint and did not want the disruption of the family. Though the point is not absolutely free from difficulty considering the trend of all over authorities on the subject, we are of the opinion that the assessee could legitimately claim his status to be that of a HUF when his wife had not been given a share in the said property. Accordingly, WT Appeal No. 167 is accepted and the amount of Rs. 65,000 added to the assessee's individual wealth in respect of the share in Vijay Oil Milis is deleted. Consequently, the protective assessments msde in the case of the HUF by the WTO, which have been cancelled by the AAC, are hereby restored and made substantive ones. In other words, WT Appeal Nos. 147 and 148 are allowed for statistical purposes, while WT Appeal Nos. 163 and 164 are fully allowed.