B.S. Dhillon, J.
1. This judgment will dispose of Tax References Nos. 1 to 5 of 1973 and Nos. 12 to 16 of 1975. The said references have been made under Section 256(1)/27(1) of the I.T. Act, 1961/W.T. Act, 1957. The assessment years for the purposes of income-tax involved in these references are 1966-67, 1967-68, 1968-69 and 1969-70; whereas for the purpose of wealth-tax, the assessment year is 1967-68, Wealth-tax References Nos. 5 of 1973 and 16 of 1975 relate to wealth-tax whereas the remaining references relate to income-tax of the assessment years referred to above.
2. The relevant facts giving rise to these references are that the HUF of Shri Kundan Lal originally comprised of Sarvashri Krishan Kumar, Raj Kumar, Vijay Kumar (sons), Smt. Kailash Wati (wife) and Miss Arun (daughter). Shri Krishan Kumar separated from the family on 11th July, 1956, vide registered deed of the same date. The rest of the family continued to live as joint family and there was neither severance of status nor determination of shares of various other coparceners at that stage. On 27th July, 1958, the second son, Shri Raj Kumar, separated from the family. On 14th February, 1966, the third son, Shri Vijay Kumar, also got separated from the family. After the separation of the third son, Shri Vijay Kumar, the family was reduced to Shri Kundan Lal, his wife, Smt. Kailash Wati and their unmarried daughter. Miss Arun. When the three sons of Shri Kundan Lal were separated from the family as mentioned above, Smt. Kailash Wati, wife of Shri Kundan Lal, was not given any share in the joint family property. On 10th March, 1967, a partial partition is alleged to have taken place between Shri Kundan Lal and his wife, Smt. Kailash Wati, vide registered deed of that date.
3. The assessee made an application under Section 171 of the I.T, Act for recognition of the partial partition and also claimed exclusion of the income from the assets which were to have become the separate properties of both Shri Kundan Lal and Smt. Kailash Wati consequent to the alleged partial partition. In the wealth-tax proceedings, it was similarly claimed that the value of the assets so falling to the share of Shri Kundan Lal and Smt. Kailash Wati be excluded from the wealth-tax assessment of the HUF. These claims were investigated into and rejected by the ITO/WTO on the ground that a wife could not herself claim a partition as was stated to have been done in this case. It was held that the partition was neither validly operative nor legally enforceable.
4. Being aggrieved, the assessee appealed to the AAC, who agreed with the ITO/WTO, in spite of the fact that for the assessment years 1967-68, 1968-69 and 1969-60, it was additionally claimed that the partition should be considered on the same footing as if a share had been given to Smt. Kailash Wati on reopening of the partition between her husband and her sons.
5. The assessee appealed to the Tribunal. All the five appeals were decided by a consolidated order. The assessee took the additional plea that the partial partition be considered as nothing else but a family arrangement. Taking into consideration the facts and arguments advanced, the Tribunal framed the following issues :
(1) What was the nature of the right of ownership of property belonging to Shri Kundan Lal after separation of Shri Vijay Kumar on the 14th day of February, 1966 ?
(2) Was a change brought about in the nature of this right of ownership of property on or about the 10th day of March, 1967, or during any of the previous years relevant to the assessment year under appeal ?
(3) Could there be a family arrangement effective under taxation laws with regard to the properties held by Shri Kundan Lal ?
(4) Could there be a partition in law between a husband and his wife with regard to any property in general and with regard to the property owned by the husband as a sole surviving or single coparcener in particular.
6. The Tribunal came to the conclusion that:
(1) The properties that came to be owned by Shri Kundan Lal after the separation of Shri Vijay Kumar on the 14th day of February, 1966, were in the nature of separate property.
(2) That there was no change brought about in the nature of the property at any time up to 14th day of February, 1966.
(3) Since the family and the properties had not reverted to the status of a multiple member coparcenary and coparcenary property, respectively, there could be no family arrangement which, under the Hindu law, is nothing other than a partition or re-partition by agreement.
(4) That Smt. Kailash Wati could not claim or obtain a partition from her husband with regard to any property in general and certainly not in regard to the property owned by the husband as a sole surviving or single coparcener.
7. Thus, having recorded the aforesaid finding, the Tribunal rejected the assessee's pleas. The assessee then made a reference application before the Tribunal praying that the question of law which does arise, be referred to this court for its opinion. The said question has been printed in Wealth-tax References Nos. 1 to 5 of 1973, which is as follows:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in rejecting the claim of partial partition between Shri Kundan Lal and his wife, Smt. Kailas Wati '
8. The assessee moved this court under Section 256(2)/27(3) of the I.T. Act, 1961/W.T. Act, 1957, with the prayer that the Tribunal be directed to refer the following additional question of law to this court for its opinion :
' Whether, on the facts and in the circumstances of the case, the Tribunal was right in upholding the inclusion in the assessment of the appellant (HUF) the value of house property that fell to the share of Shri Kundan Lal, individual, and Smt. Kailash Wati, under a deed dated March 10, 1967, registered with the Sub-Registrar, Amritsar, on March 13, 1967?'
9. The said petitions were allowed by this court and in pursuance of the order of this court dated 18th April, 1974, the Tribunal drew up the supplementary statement of the case and also referred the above-mentioned question to this court for its opinion.
10. We have heard the learned counsel for the parties and have very carefully gone through the records of the case. It is a well established proposition of law that under the provisions of the I.T. Act an HUF is one of the assessable entities and not a Hindu coparcenary. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family, it includes only those persons who acquire by birth an interest in the joint or coparcenary property, those being the sons, grandsons and great-grandsons of the holder of the joint property for the time being ; whereas under the Hindu system of law, a joint family may consist of a single male member and widows of deceased male members. The I.T. Act does not indicate that an HUF as an assessable entity must consist of at least two male members. It is, therefore, obvious that the property of a joint family does not cease to belong to the family merely because the family was represented, after the three sons of Shri Kundan Lal got separated, by Shri Kundan Lal, his wife and an unmarried daughter. The answer to proposition No. 1 framed by the Tribunal, that after the separation of Shri Vijay Kumar on 14th February, 1966, the property left in the hands of Shri Kundan Lal was in the nature of a separate property, is not correct. Merely because all the sons left the caparcenary, it would not change the nature of the property owned by the HUF and thus the Tribunal, in our view, misdirected itself in recording this finding.
11. It is further well settled that a wife cannot claim partition of the HUF property as a matter of her own right. However, it is equally settled that if a son claims a share in the property by way of partition, the wife is entitled to claim and get property equivalent to the share of the property given to the son in the partition. It also appears to be settled law that it is not necessary that the wife must claim a share in the property simultaneously when the son gets the share in partition, but, if she is able to show that she did not acquiesce in the partition, she could claim a share even at some subsequent stage by way of a suit or by laying a claim which may be accepted by other members of the family. Reference in this connection may be made to a Division Bench decision of the Nagpur High Court in Mt. Radhabai v. Pandhari Nath Bapu Narayan Bapu Palar, AIR 1941 Nagpur 135, and a decision of the Allahabad High Court in Partap Singh v. Dalip Singh, AIR 1930 All 537. It is in the background of these propositions of law, which are very well established that we are required to answer the question of law referred to us for our opinion keeping in view the facts and circumstances of the case.
12. We are inclined to agree with the contention of Shri Bhagirath Dass, the learned counsel for the assessee, that Smt. Kailash Wati was entitled to get the share in the property at the time when the partition was claimed by her sons. We are also inclined to agree with his contention that even at a subsequent stage if she decided to assert her right to get the share from the HUF property, she having not been given any share when Vijiy Kumar separated and if she was able to show that she had not acquiesced in the partition and had not waived her right to claim her share from the HUF property, and if she in fact laid her claim on the above-mentioned basis and got a share in the property, in that case, if she got the partition reopened and got a share out of the property, the property given to her would have been treated as her own property and not part and parcel of the HUF property. Therefore, on the facts and circumstances of the case, we have to see as to whether Smt. Kailash Wati did lay her claim to reopen the partition by which her sons had got the share from the HUF property. In this context, it may be pointed out that the plea, that since Smt. Kailash Wati was not allotted any share at the time of the partition between the sons and the father, and, therefore, she was entitled to the property, was not raised before the ITO. Before the AAC, this additional plea was raised pertaining to the proceedings regarding the assessment years 1967-68, 1968-69 and 1969-70. The AAC, while dealing with this plea, recorded a finding of fact in the following terms :
'Further, again the A/R's contention that Smt. Kailash Wati was always entitled to a share and she claimed it now, is not supported by any evidence whatsoever, and his further contention that Shri Kundan Lal now agreed to concede this demand of his wife has no basis and in any case it is not supported by the documents relied upon by the appellant, namely, the partition deed dated 10-3-67, which says that it is a partition between Shri Kundan Lal and his wife, Smt. Kailash Wati, as on 10-3-67, and there is absolutely no mention of either her claim of a share on account of any earlier partition or her claiming it now, because of the earlier partition. Also a careful perusal of the two cases cited by the A/R himself, referred to hereinbefore, will indicate that the courts were merely of the view that the wife would be entitled to reopen the partition in case her share is not allotted or given to her on partition between the father and his sons. And it must be made clear that the reopening of the earlier partition would be materially different from the partition now made because of the possibilities of the variations in the number of members or even the quantum of properties during the intervening period. Thus, the alleged giving of one-half share of the wife as on 10-3-67 cannot be equated to the reopening of any earlier partition. Apart from this, as stated earlier in this case, no such partition has so far and at any time taken place and in any case the claim now before the Income-tax Officer for a partition between the husband and wife as on 10-3-67, could not be construed as a claim of the wife for a reopening of the earlier partition.'
13. The assessee was not satisfied with this finding and in the grounds of appeal before the Appellate Tribunal, a similar plea was again raised and the Appellate Tribunal recorded a finding of fact in the following words :
'We, therefore, agree with the contention of the revenue in this connection that no evidence having been led to show that, (a) Smt. Kailash Wati had demanded a reopening of the partition, (b) erstwhile coparceners had agreed to reopen the partition, and (c) there was as a consequence readjustment of partition. On the contrary, we find that the partition dated 10-3-67 was sought to be effectuated as an independent event where not only the nature of the partition was different (on 14-2-66, it was a complete partition as to properties but partial as to persons ; on 10-3-67, it was claimed to be a partition as to properties without any partition as to persons), but even the incidence was claimed to be different (on 14-2-66, Shri Kundan Lal got what was claimed to have remained as HUF property; on March 10, 1967, he is supposed to have got property which he claimed to have become his individual property). Factually, therefore, the conclusion is inescapable that there was no change broughtabout in the nature of the property at any time after the 14th day ofFebruary, 1966.'
14. We may also refer at this stage to the statements made by Shri Kundan Lal and Smt. Kailash Wati on 28th August, 1969, and reference may also be made to the partition deed executed between Shri Kundan Lal and Smt. Kailash Wati on 1st March, 1969. In none of the statements either of them ever claimed that Smt. Kailash Wati claimed the property by way of reopening of the partition is she did not get any share when Vijay Kumar separated and that she had not acquiesced in the partition and had not waived her right when her sons got the property by partition. Nor there is any mention in the partition deed to that effect. As already observed, the AAC and the Appellate Tribunal recorded firm findings of fact that Smt, Kailash Wati did not lay claim to the partition of the property on the basis that she had not been given any share from the property when her sons got their share in the property during the partition. Smt. Kailash Wati, of her own right, has no right to claim partition of the HUF property and thus the findings arrived at by the Appellate Tribunal, on the facts and circumstances of the case, have rightly been returned.
15. In view of our above findings, the answer to the question referred by the Tribunal in Wealth-tax References Nos. 1 to 5 of 1973 is returned in the affirmative, in favour of the revenue and against the assessee. Similarly, the answer to the additional question of law referred to this court in Wealth-tax References Nos. 12 to 16 of 1975 is also returned in the affirmative in favour of the revenue and against the assessee. However, there will be no order as to costs.
16. I agree.