1. This appeal is by the assessee and relates to the assessment year 1981-82. The assessment made is in the status of an HUF and the only controversy centres round the inclusion of property income from house property at 59, Mahathma Gandhi Road, Panruti, in the assessment of the HUF.2. The facts are : Shri Sivasankaran, the karta of the HUF and his brother together with their father and mother constituted an HUF. The HUF possessed several items of property out of which two items were Nos. 59 and 60, Mahathma Gandhi Road. There was a partition of the larger family on 13-10-1970. By this partition deed it was provided that the father of Shri Sivasankaran, i.e., the karta of the larger HUF would have a life interest in the properties at Nos. 59 and 60, Mahathma Gandhi Road and after his death, his wife would have the life interest in the said properties, and after her death, property No. 59, Mahathma Gandhi Road, Panruti would go absolutely with full rights of alienation to Shri Sivasankaran and property No. 60, Mahathma Gandhi Road would go also absolutely with full rights of alienation to Shri Sivasankaran's brother. Shri Sivasankaran's father passed away shortly after the deed of partition was executed and the mother died on 2-9-1973. According to Shri Sivasankaran, in the HUF of which he was the karta, the income from the property No. 59, Mahathma Gandhi Road, could not be included because it was his individual property. The ITO did not agree. According to him, since the property was received on partition, the property had the character of an HUF property. The assessee, Shri Sivasankaran, appealed but without success to the AAC.3. Before me, the learned counsel for the assessee submitted that the property has devolved on Shri Sivasankaran on the demise of his mother and, therefore, it should be treated as individual property. The learned departmental representative, on the other hand, submitted that the property came to Shri Sivasankaran by way of partition and, therefore, was ancestral property.
4- I have considered the submissions. The share which a coparcener obtained on partition of ancestral property is ancestral property as regards his male issue. They have interest in it by birth whether they are in existence at the time of partition or are born subsequently [see in this regard Mulla on Principles of Hindu Law, 15th edn. Paragraph No. 223/4]. It is also settled law that rights short of full ownership can also be the subject of partition. For example, a right of way is presumed to have remained joint, if there is no evidence that it was allotted to a particular member at the time of partition [see in this regard Mulla on Principles of Hindu Law, 15th edn. paragraph No. 303].
In the present case, what has happened is that the life interest in the property, reserving the remainderman's interest to the two sons, went first to the father and afterwards to the mother on partition. At the time of partition itself, the remainderman's interest came to the two sons. This became a complete interest on the property on the demise of the parents. The parents had only a limited interest in the property by way of partition, which interest in terms of the partition deed itself passed on to the two brothers after the interregnum of the remaining lifetime of the father and thereafter of the mother of the two brothers. Hence, what Shri Sivasankaran obtained was property by way of partition and it would partake the character of an HUF property. The orders of the authorities below are upheld.