1. These appeals are by the assessee against the orders of the AAC both dated 16-7-1982. The assessment year involved is 1974-75. IT Appeal No.1768 (Ahd.) of 1982 relates to the issue regarding validity of partition under Section 171 of the Income-tax Act, 1961 ('the Act') and IT Appeal No. 1768 (Ahd.) of 1982 has a consequential effect that if partition is valid then the income from the various firms should not be assessed in the hands of the assessee. First we take up the appeal bearing IT Appeal No. 1768 (Ahd.) of 1982 regarding the validity of partition. Before the ITO the assessee claimed that a partial partition has taken place insofar as the right, title and interest of the family in Hasmukhlal Patel & Co. is concerned as at the beginning of the Samvat Year 2029, it is claimed that capital of Rs. 73,926 with the firm of Hasmukhlal Patel & Co. has been equally divided amongst the three members of the family by passing entries in books of the family.
It is further claimed that the members of the family before the partition were as under : The confirmation of the members regarding partial partition was filed before the ITO. According to the ITO, there was no valid partial partition as there was only one coparcener in the family. He relied on CITv. Shantikumar Jagabhai  105 ITR 795 (Guj.). The assessee has tried to distinguish the facts before the ITO that in that case the father of the assessee died after 1956, i.e., after commencement of the Hindu Succession Act, 1956, while in the case of this assessee the father and uncle died before 1956. Therefore, the right obtained under the Hindu Women's Rights to Property Act, 1937, remained with the widows even after commencement of the Hindu Succession Act. Therefore, the widows still had right to claim partition under (3) of Section 3 of the Hindu Women's Rights to Property Act. The ITO did not agree with the assessee. According him, after the Hindu Succession Act, the limited ownership of the women was replaced by full ownership and this has a retrospective effect. Therefore, the death of the husband before the commencement of the Hindu Succession Act or after the commencement of the said Act does not make any difference. He, accordingly, refused to accept the claim of partial partition. Being aggrieved, the assessee went in appeal before the AAC. The AAC also confirmed the view taken by the ITO holding that since there was only one coparcener in the family, there could not be any valid partial partition. Being aggrieved, the assessee came in appeal before us.
2. The submission of the learned counsel for the assessee, Shri K.C.Patel, was that there was a single coparcener in the family. There is no dispute on this fact but since the husbahd of Smt. Mangalaben, one of the widows, had died prior to the commencement of the Hindu Succession Act, she acquired the right to claim partition under Section 3(3). That remains even after commencement of the Hindu Succession Act and when she has a right to claim partition, the partition was valid.
His alternative submission was that following the view taken by the Punjab and Haryana High Court in the case of CIT v. Narain Dass Wadhwa  123 ITR 281, the partition should be taken as valid by way of family arrangement. He filed a copy of the order of the Tribunal wherein the said decision of the Punjab and Haryana High Court is followed bearing IT Appeal No. 1757 (Ahd.) of 1981 dated 31-8-1982. On the other hand, the learned departmental representative, Shri Harne, supported the orders of the authorities below and submitted that when there was a sole coparcener in the family, there cannot be a valid partition under Section 171. He further relied on the decision of the Gujarat High Court in the case of Shantikumar Jagabhai (supra).
3. We have heard the rival submissions and considered the material on record. Shri Gokuldas. husband of Smt. Mangalaben, died on 17-3-1954, i.e., before the commencement of the Hindu Succession Act, leaving behind him Shri Hasmukhlal Chhotalal, Smt. Mangalaben, widow of Shri Gokuldas and widowed mother of Shri Hasmukhlal, Smt. Lilawatiben. Under Hindu Women's Rights to Property Act, any widow before the commencement of the Hindu Succession Act, acquired a right of partition under (3) of Section 3. For ready reference we reproduce (3) of Section 3 as under : Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women's estate, provided however that she shall have the same right of claiming partition as a male owner.
4. From the plain reading of the above , it is clear that as Shri Gokuldas, husband of Smt. Mangalaben, died on 17-3-1954, Smt.
Mangalaben acquired the right of partition under the Hindu Women's Rights to Property Act. Thereafter, on the commencement of Hindu Succession Act she became the absolute owner of the property. Now the narrow question that remains with us is whether she lost the right of partition after commencement of the Hindu Succession Act and if so, can the sole coparcener claim the partition under Section 171 In the case of Shantikumar Jagabhai (supra) the issue before their Lordships was that in case of a widowed mother and a minor son, can there be a partition. Their Lordships held that as there was only a sole coparcener, no valid partition has taken place. In that case the husband of the widow expired on 1-9-1961, i.e., after the commencement of the Hindu Succession Act while in the present case, the husband expired before the commencement of the said Act. Therefore, in the prior case, the widow of the deceased had not acquired any right under the Hindu Women's Rights to Property Act as that Act was not in force at the time of death of Shri Shantikumar, husband of the widow.
Therefore, their Lordships held that the widow of Shri Shantikumar cannot claim partition but while in the case under consideration, the widow acquired the right of partition under Section 3(3). A similar issue was considered by their Lordships of the Supreme Court in the case of CED v. Alladi Kuppuswamy  108 ITR 439. There, the facts were similar to the facts of the case under consideration. The husband had expired before commencement of the Hindu Succession Act. The issue before their Lordships was whether the widow was an absolute owner and had the right acquired under the Hindu Women's Rights to Property Act.
Their Lordships have taken the view that the fact that before the Hindu Succession Act, she had the characteristic of a widow's estate in her interest in the property, does not detract nonetheless from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has a coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Hindu Women's Rights to Property Act. Section 6 of the General Clauses Act, 1897, provides that in case of repeal of any enactment then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed. Therefore, the right which the widow has acquired under the Hindu Women's Rights to Property Act is still available even after commencement of the Hindu Succession Act. Further, there is nothing provided under the Hindu Succession Act that the right which the widow acquired under (3) of Section 3 is taken back under any section of the Hindu Succession Act.
Therefore, when the widow acquired the right of partition under (3) of Section 3, the right continues even after commencement of the Hindu Succession Act. Therefore, the partition between coparcener and a widow whose hasband was expired before 1956 was a valid partition and the authorities below should not refuse such partition under Section 171.
When we hold that the partition was valid, the income assessed in the hands of the assessee-HUF was not justified and the income of Rs. 18,434 from Hasmukhlal Patel & Co., Rs. 1,882 from Manmohan Construction, income of Rs. 4,706 from Vinay Construction Co. and income of Rs. 3,799 from Vinay Construction Co. should not be assessed in the hands of the assessee-HUF but should be assessed in the hands of the persons in the light of partition taken place under Section 171.