Divan, C.J.@mdashIn this reference at the instance of the revenue the following question has been referred to us :
"Whether, on the facts and in the circumstances of the case, by release deed dated September 11, 1961, a valid partition between the mother and the minor son was effected ?"
2. The facts giving rise to this reference are as follows : The assessee is a Hindu undivided family. The relevant assessment years are 1963-64 and 1964-65. One Shantikumar Jagabhai had two sons, Gautamkumar and Bhadrakumar. Gautamkumar attained majority prior to 1956, and Bhadrakumar was a minor even at the time of the relevant previous years pertaining to these two assessment years. Kalavati is the wife of Shantikumar Jagabhai. Prior to November 10, 1956, Shantikumar Jagabhai, his two sons, Gautamkumar and Bhadrakumar, and his wife, Kalavati, were members of a joint Hindu family. This family owned various properties and it was also running a business. By a deed called a "release deed" on November 10, 1956, Gautamkumar relinquished his interest in only one of the joint family assets, the joint family business run by the family. Shantikumar died on September 1, 1961. But, prior to his death Shantikumar had executed a will dated February 22, 1960, and by this will he bequeathed his share in the Hindu undivided family property including his share in the business and the bequest was in favour of his wife and his two sons, Gautamkumar and Bhadrakumar, and all the legatees were entitled to share in the bequest equally. On September 11, 1961, a document was executed. By this document, Gautamkumar released his right, title and interest in the business in favour of the other two legatees, namely, Kalavati and Bhadrakumar. The document in terms mentions that Gautamkumar who was described as a party of the second part was releasing all his right, title and interest as an heir of Shantikumar Jagabhai in the joint family firm and he had no claim or demand whatsoever in the goodwill, trade name, assets, liabilities, outstandings and stocks of the said firm and the parties of the first part, that is, Kalavati and Bhadrakumar, had become absolutely entitled thereto. By the said document of September 11, 1961, it was recited that there was a partial partition between Kalavati and Bhadrakumar of the business which was till then carried on as a joint family business and after that partition between Kalavati on the one hand and Bhadrakumar on the other, these two had become partners in the firm of Bipinchandra Gautamkumar in their separate capacities. It may be mentioned at this stage that till September 11, 1961, the joint family business was being carried on in the name of Bipinchandra Gautamkumar. Thus the document of September 11, 1961, was both a release deed so far as Gautamkumar was concerned in connection with the share which he got as a legatee under the will of Shantikumar and a record of a partition arrived at between Kalavati and Bhadrakumar of the particular asset which they were holding jointly in the joint family business. On September 12, 1961, a partnership deed was executed between Kalavati representing herself and also in her capacity as the guardian of her minor son, Bhadrakumar, on the one hand and Bhupendra Rasiklal Shah, and Bhadrakumar was admitted to the benefits of this partnership. In this partnership Kalavati had a share of 45 per cent.; Bhupendra Rasiklal Shah had a share of 10 per cent.; and Bhadrakumar was entitled to the benefit of the partnership to the partnership to the extent of 45 per cent.
3. In the course of the assessment for the relevant two assessment years, the assessee contended before the Income Tax Officer that there was a partial partition of the joint family business and, therefore, the income of the business should not be assessed in the hands of the Hindu undivided family. This claim was not accepted by the Income Tax Officer. The Income Tax Officer also mentioned in the assessment orders that there was no claim as such made by the assessee for partial partition. He also considered the release deed and held that there was no partial partition in fact. Thereafter, the matter was taken by the assessee in appeal to the Appellate Assistant Commissioner and the appellate officer held that the claim for partial partition u/s 17(2) must be deemed to have been made, inasmuch as the Income Tax Officer had examined the whole issue at great length in the assessment order and under these circumstances there was no need for any application in writing u/s 171(2). The appellate officer also held that there was a partial partition of the Hindu undivided family business and, therefore, the income of the business carried on by the Hindu undivided family by virtue of the partnership could not be treated as income of the Hindu undivided family. Thereafter, the Income Tax Officer filed an appeal against the order of the Appellate Assistant Commissioner before the Income Tax Appellate Tribunal and the Tribunal held that the Appellate Assistant Commissioner was right in holding that the claim was made for partial partition. The Tribunal also held that after the released deed of November 10, 1956, there were two coparceners entitled to the Hindu undivided family business, namely, Shantikumar and minor, Bhadrakumar. The Tribunal held that at the time of Shantikumar''s death on a notional partition as contemplated by the Explanation to section 6 of the Hindu Succession Act, Shantikumar''s share would be one-third and u/s 30 of the Hindu Succession Act, the right, title and interest in the Hindu undivided family property can be willed away by a coparcener. Shantikumar was entitled to will away his one-third share in the Hindu undivided family property according to his own desire. Hence, according to the Tribunal, the will executed by Shantikumar brought about disposition of his one-third interest in favour of his two sons and wife, each of them having one-third interests in the Hindu undivided family business as a legatee under the will. According to the Tribunal, by the document of September 11, 1961, Gautamkumar released his one-ninth interest which he got under the will of Shantikumar became entitled to one-sixth share in the Hindu undivided family business because their shares became augmented by virtue of the release. According to the Tribunal, the one-sixth share of Kalavati and Bhadrakumar each would form joint property in their hands. The remaining two-thirds portion of the Hindu undivided family business would be held by them as Hindu undivided family property. According to the Tribunal, by the document of September 11, 1961, Kalavati and Bhadrakumar had brought about a division of their interest as well as their joint interest which was one-sixth share as mentioned above and thus by reason of the partition recited in the deed of September 11, 1961, Kalavati and Bhadrakumar had brought about a division of their interest as well as their joint interest which was ones-sixth share as mentioned above and thus by reason of the partition recited in the deed of September 11, 1961, the business of the Hindu undivided family was divided into two equal shares between Kalavati and minor, Bhadrakumar. According to the Tribunal the fact that there was a partial partition between Kalavati and Bhadrakumar was confirmed by the partnership deed dated September 12, 1961, which was entered into by Kalavati representing herself and in her capacity as guardian of Bhadrakumar on the one hand and Bhupendra Rasiklal Shah on the other. The Tribunal held that the partial partition took place in respect of the Hindu undivided family property, namely, the business that was being carried on by the Hindu undivided family earlier. The Tribunal found in the alternative that the partial partition recited in the document of September 11, 1961, and the subsequent deed of partnership with Bhupendra Rasiklal was definitely for the benefit of the minor and nothing was suggested to the Tribunal that the minor would be deprived of anything. Even otherwise, according to the Tribunal, it was open to Bhadrakumar to get the transaction set aside when he attained majority. The transaction, if at all, would be voidable and could be avoided when minor, Bhadrakumar, attained majority and it was held that the revenue could not object to the transaction being given effect to. Thereafter, the question hereinabove set out had been referred to us at the instance of the revenue.
4. Before we proceed further, it will be necessary to set our certain paragraphs from the so-called released deed of September 11, 1961. This release deed was executed between two parties. The parties of the first part were Kalavati and Bhadrakumar by his guardian, Kalavati on the one hand and the party of the second part was Gautamkumar. The fourth recital in paragraph 1 is in these terms :
"AND WHEREAS there had been a partial partition between the two parties of the first part, namely, Smt. Kalavati Shantikumar Sheth and minor Bhadrakumar Shantikumar Sheth, of the business as hereinafter appearing wherein the said two a parties have become partners in the firm of Bipinchandra Gautamkumar in their separate capacities; AND WHEREAS the party of the second part does not want to continue such business, it is hereby agreed between the parties hereto as follows :".
In paragraph 3 it is mentioned :
"AND WHEREAS as the parties of the first part desire to carry on the said business in partnership with a stranger, the party of the second part both hereby released all his right, title and interest as an heir of Shantikumar Jagabhai save as hereinafter appearing in the said firm of Bipinchandra Gautamkumar and the party of the second part has now no claim or demand whatsoever in the goodwill, trade name, assets, liabilities, outstanding and stocks of the said firm of Bipinchandra Gautamkumar, and the parties of the first part have absolutely become entitled thereto." In paragraph 4 of the release deed it is mentioned that there was an account of the Hindu undivided family in the books of accounts of the business of the said firm of Bipinchandra Gautamkumar and this account showed a debit balance. Paragraph 4 mentioned that this account of the joint family shall continue to remain and be operated as the current account of the Hindu undivided family consisting of Kalavati, Bhadrakumar and Gautamkumar. Any deposits made from out of the funds of the Hindu undivided family consisting of these three persons, and any withdrawals made from out of this current account were to belong to the Hindu undivided family of all the three persons.
5. On the facts which we have hereinafter set out, it is clear that in 1956, there was a partial partition between the members of the Hindu undivided family as it existed so far as this particular asset of the joint family, namely, the joint family business, was concerned. As a result of that partition, with effect from November 10, 1956, Gautamkumar ceased to have any interest in the joint family business and that joint family business thereafter belonged to the three remaining members of the joint family, namely, Shantikumar and Bhadrakumar, who were the two coparceners and Kalavati. From November 10, 1956, till the death of Shantikumar in 1961, the joint family business which was being run in the name of Bipinchandra Gautamkumar was being run by the joint and undivided Hindu family consisting of Shantikumar, Kalavati and Bhadrakumar. On the death of Shantikumar on September 1, 1961, it is obvious that the only members of the family who had an interest in the joint family business were Kalavati and Bhadrakumar. u/s 30 of the Hindu Succession Act, 1956, it is open to and Hindu to dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, of any other law for the time being in force and applicable to Hindus. The Explanation to section 30 mentions that the interest of a male Hindu in Mitakshara coparcenary property shall, notwithstanding anything contained in the Hindu Succession Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this sub-section. Thus, with the coming into force of the Hindu Succession Act, 1956, it became possible for any Hindu to make a will to dispose of his interest in Mitakshara coparcenary property but such testamentary succession is governed by section 6 of the Act. u/s 6 of the same Act, when a male Hindu dies after the commencement of the Succession Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Hindu Succession Act. But under the proviso to section 6, if the deceased male Hindu leaves him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Hindu Succession Act and not by survivorship. The Schedule to the Hindu Succession Act mentions heirs in two classes, namely, Class I and Class II, and a widow is one of the female relatives mentioned in Class I. Therefore, since Shantikumar died after the coming into force of the Hindu Succession Act, by virtue of the proviso to section 6 of the Act, his interest in the coparcenary property devolved by testamentary succession since he had left his will executed by him of February 22, 1960. Explanation 1 to section 6 provides that for the purposes of section 6 the interest of a Hindu Mitakshara coparcenery shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. Under these circumstances a notional partition certainly took place and, as a result of that notional partition, on the facts of this case, on Shantikumar''s death, so far as the joint family business of Bipinchandra Gautamkumar was concerned, Shantikumar had one-third share in the business (the three persons in the Hindu undivided family being Shantikumar himself, Bhadrakumar and Kalavati, each one of them having one-third share in this joint family business). Since each of the three legatees under the will of Shantikumar had an equal share under the will, Bhadrakumar, Gautamkumar and Kalavati each became entitled to one-ninth share in the joint family business of Bipinchandra Gautamkumar. u/s 19(b) of the Hindu Succession Act, if two or more heirs succeed together to the property of an intestate, they shall take the property as tenants-in-common and not as joint-tenants. The same principle would also apply to the heirs taking together under the will so far as the proviso to section 6 is concerned and, Gautamkumar would each get one-ninth share. They would hold as tenants-in-common.
6. The effect of the provisions of section 6 has been considered by a Division Bench of this High Court in Commissioner of Wealth-tax v. Kantilal Manilal. In that case the facts were that one K, his wife P, their unmarried daughter, R, their son, D, and D''s wife, U, were all members of a Mitakshara Hindu undivided family owning several properties. The son, D, had some separate properties of his own. D died on August 15, 1958. U filed a suit for obtaining her share in the properties left by D including his interest in the coparcenary property u/s 6 of the Hindu Succession Act. This suit was settled and an amount of Rs. 10,70,000 was paid to U in full settlement of her claim. In the wealth-tax assessment of the Hindu undivided family for the assessment years 1960-61, 1961-62 and 1962-63, the Appellate Tribunal held that on the death of D, his one-third share in the joint family properties devolved on U and P, that is, D''s mother, and thus ceased to belong to the assessee-family and the assessee was thereafter entitled only to the remaining two-thirds share in the coparcenary joint family properties. The matter having been brought to the High Court, the High Court held that the Tribunal was right in taking the view that only two-thirds share in the jewellery belonging to the joint family was liable to be taken into account in computing the net wealth of the Hindu undivided family. The Division Bench deciding the matter held that u/s 6 of the Hindu Succession Act, D''s interest in the family property devolved in his mother, P, and his wife, U, and that share went out of the family. The heirs of the deceased, D, and the remaining members of the coparcenary held the properties as tenants-in-common. At page 294 of the report, Bhagwati C.J., as he then was, delivering the judgment of the court observed :
"It would, therefore, appear to be obvious that when the proviso (proviso to section 6) says that the interest of a deceased coparcener in coparcenary property shall devolve by intestate succession, what is meant is that the share in the coparcenary property which would heave been allotted to him on partition, if a partition had taken place immediately before his death shall devolve on the heirs. The concept of a notional partition is brought in for the purpose of defining the nature and quality of the interest which devolves by succession. It is the share which would have been allotted to the deceased coparcener on partition if a partition had taken place at that time. The quantum of share is fixed : the proportion in which the share is to be counted are also crystallized. This specific share in definite ascertained properties, subject of course, to payment of proportionate share of the debts and liabilities, devolves on the heirs by intestate succession. But, that does not affect the continuance of the Hindu undivided family. The fiction of partition is introduced for the limited purposes of defining the nature and quality of the interest which devolves by succession and it cannot be extended beyond its legitimate field. The Hindu undivided family, therefore, continues with the surviving coparceners as it would have done under ordinary Hindu law, but the share of the deceased coparcener in the properties of the Hindu undivided family having devolved on the heirs by intestate succession, that share goes out of the Hindu undivided family and the Hindu undivided family continues to be the owner of only the remaining share. The result is that in the properties which belonged to the Hindu undivided family at the date of death of the coparcener, the heirs have a defined share, namely, the share which the deceased coparcener whom they have succeeded would he had if a partition had taken place immediately before his death and the remaining share belongs to the Hindu undivided family. Now, once this position is reached, it is clear that the Hindu undivided family and the heirs hold these properties as tenants-in-common. Where there are two or more co-owners of property, the co-ownership may assume one of several forms : it may be coparcenary or joint tenancy or tenancy-in-common. These are the main three forms of co-ownership which are commonly in use in legal relationship in this country. Here coparcenary is out of question because the heirs in their capacity s such would indubitably not be coparceners with the other members of the Hindu undivided family. The only question, therefore, can be whether the Hindu undivided family and the heirs hold as joint tenants or as tenants-in-common. Now the two main features of a joint tenancy are the right of survivorship and the four unities, namely, unities of possession, interest, title and time. Both these features are absent in the case we are considering. There is neither right of survivorship nor unity of interest. The interest of neither the Hindu undivided family nor the heirs extends to the whole of the properties and there is no community of interest between them. What the Hindu undivided family and the heirs have are only defined shares in the properties which belonged to the Hindu undivided family at the date of death of the coparcener. There is common enjoyment of the properties between the Hindu undivided family and the heirs and the properties not having been divided amongst them in accordance with their respective shares neither of them is able to enjoy his share of the properties in severalty. The properties are thus clearly held by the Hindu undivided family and the heirs as tenants-in-common."
7. We may mention that this judgment in Commissioner of Wealth-tax v. Kantilal Manilal has also noted that four other High Courts, namely, Calcutta High Court, Bombay High Court, Mysore High Court and Kerala High Court had also taken a view similar to the view taken by the Division Bench in Kantilal Manilal''s case regarding the interpretation of section 6 of the Hindu Succession Act. We may mention that a Division bench of the Bombay High Court in Rangubai v. Laxman Lalji has taken a somewhat different view. According to that Division Bench consisting of Patel and Bal JJ., u/s 6 of the Hindu Succession Act, when the interest of the deceased coparcener is to be determined, the court should first determine what is the property available for partition, then partition the coparcenary property setting aside the share of the widow to which she is entitled in her own right and divide the share of the deceased coparcener amongst the heirs, and by the decree make proper provision for the maintenance and marriage expenses of the daughters and award the widow her due share in the coparcenary property and divide the property of her husband amongst the heirs. When a Hindu coparcener leaves a widow and an adopted son at his death, on a partition during the lifetime of him the widow would have been entitled to one-third share and on succession to a further one-sixth share. Her share, therefore, in the properties would be one-half share. However, we respectfully agree with the conclusion reached by our High Court in Kantilal Manilal''s case and hold that the only purpose of the Explanation to section 6 is to determine the share which passes to the heirs of the deceased under the proviso to section 6 and the Explanation to section 6 does not effect an actual partition between the different members of the coparcenary.
8. On behalf of the assessee Mr. Patel relied on the decision of the Supreme Court in Munnalal v. Rajkumar. He contended that so far as a Hindu widow was concerned, under the Hindu Women''s Rights to Property Act, 1937, which in force between 1937 and 1956, a Hindu widow had a right to succeed to the interest of her husband in a coparcenary property and that right of hers gets enlarged from a life estate to a full estate by virtue of the provisions of section 14 of the Hindu Succession Act as interpreted by the Supreme Court in Munnalal v. Rajkumar. It must, however, be noted that under the Hindu Succession Act, by virtue of section 4, save as otherwise expressly provided in the Hindu Succession Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act and any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. Sub-section (2) of section 4 expressly declares that nothing contained in the Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. The Hindu Women''s Rights to Property Act, 1937, was repealed by section 31 of the Hindu Succession Act with the result that after the coming into force of the Hindu Succession Act in 1956, the rights of the widow, a coparcener, are governed by the provisions of the Hindu Succession Act and not by the provisions of the Hindu Women''s Rights to Property Act, 1937. Munnalal v. Rajkumar merely makes its clear that a woman who was only entitled to a life estate would become absolutely entitled to the share in the property to which she succeeded as a limited owner and even though no partition by metes and bounds had taken place, she would be deemed to be full owner of property possessed by her for the purpose of section 14, sub-section (1), of the Hindu Succession Act. Under these circumstances it cannot be said that Kalavati as the widow of Shantikumar got a higher right or got a better right since Shantikumar in the instant case died after the coming into force of the Hindu Succession Act and the rights of the parties particularly regarding share of Shantikumar in the coparcenary property would be governed strictly by the provisions of the Hindu Succession Act and not by any other provision.
9. The question then arises as to in the light of these observations and the legal position as explained in Kantilal Manilal''s case, with which we agree, what were the rights of the parties. It is clear that by virtue of the released deed executed by Gautamkumar in 1956, the joint family business run in the name of Bipinchandra Gautamkumar belonged to Shantikumar, Kalavati and Bhadrakumar who were members of a joint and undivided Hindu family. On the death of Shantikumar, by virtue of the bequest made by him in his will, one-third share which belonged to Shantikumar in that business of Bipinchandra Gautamkumar passed to the three legatees, namely, Kalavati, Gautamkumar and Bhadrakumar, and by virtue of the release deed executed by Gautamkumar on September 11, 1961, his one-ninth share in the joint family business passed to Kalavati and Bhadrakumar. The result, therefore, was that Kalavati and Bhadrakumar each in their individual capacity became entitled to one-sixth share in joint family business of Bipinchandra Gautamkumar. It is equally clear that the larger Hindu undivided family consisting of Shantikumar, Gautamkumar, Bhadrakumar and Kalavati continued to exist and continued to hold properties other than the joint family business of Bipinchandra Gautamkumar after November 10, 1956, on which date Gautamkumar had released his share in the Hindu undivided family business. Therefore, there were two separate assessable entities with effect from November 10, 1956. There was one assessable entity, namely, the joint Hindu undivided family of Shantikumar, Kalavati and Bhadrakumar, carrying on the business in the name of Bipinchandra Gautamkumar. Another assessable entity was the joint Hindu family called Shantikumar Jagabhai Hindu undivided family which owned all properties as prior to November 10, 1956, except the joint family business of Bipinchandra Gautamkumar. These two separate entities must be borne in mind in order to appreciate the correct legal position. Mr. Kaji, on behalf of the revenue, urged before us that except in the lineal branch of a coparcener there cannot be a Hindu undivided family within a Hindu undivided family. But what we are considering is not a case of a Hindu undivided family within or as a part of another Hindu undivided family. What we are considering is the case of two separate and distinct assessable entities. The two distinct notions of a Hindu undivided family within a Hindu undivided family and the concept of two separate assessable entities each consisting of a Hindu undivided family must be borne in mind. The present case falls within the second category of two distinct assessable entities each consisting of a Hindu undivided family after November 10, 1956. It is well-settled law that there can be a partial partition between members of a Hindu undivided family either as regards person or as regards person or as regards property. By the release deed of November 10, 1956, Gautamkumar released his share in the Hindu undivided family business being run in the name of Bipinchandra Gautamkumar. By virtue of that releases deed he ceased to have any interest in this particular asset of the Hindu undivided family and the remaining three members of the Hindu undivided family, Shantikumar, Kalavati and Bhadrakumar, continued to carry on that business which was the joint family business as members of a Hindu undivided family and the income of that business had to be assessed in the hands of that distinct assessable entity of which Gautamkumar was not a coparcener. The income from all other properties of a Hindu undivided family had to be assessed in the hands of the Hindu undivided family even after November 10, 1956, consisting of Shantikumar, Gautamkumar, Bhadrakumar and Kalavati and that the Hindu undivided family of four members continued till the death of Shantikumar on September 1, 1961. This position in very clear and it is in the context of these two separate assessable entities that the problem will have to be approached and the rival disputes will have to be resolved.
10. We also make it clear that by virtue of the provisions of section 19(b) of the Hindu Succession Act and also as pointed out by the Gujarat High Court in Kantilal Manilal''s case, after the death of Shantikumar, as a result of the will and by virtue of the release deed executed by Gautamkumar or September 11, 1961, as a regards one-third share from the business of Bipinchandra Gautamkumar, each of these two persons, Kalavati and Bhadrakumar, was entitled to one-sixth share in his or her own individual separate right and not as a member of the Hindu undivided family and they must be assessed as such in their separate individual capacity regarding this one-sixth share of the income from that business.
11. The question then arises as to whether Kalavati could effect a partition between herself and her minor son, Bhadrakumar, as has been recited in the so-called release deed of September 11, 1961. It may be reiterated here that till Shantikumar''s death the business of Bipinchandra Gautamkumar, a joint family business, was being run by the Hindu undivided family consisting of Shantikumar, Bhadrakumar and Kalavati and in this joint family, the two coparceners were Shantikumar and Bhadrakumar. After the death of Shantikumar on September 1, 1961, the sole surviving coparcener in this family which was running the business of Bipinchandra Gautamkumar was Bhadrakumar, and Kalavati was entitled to get a share in the assets of this Hindu undivided family if and when a partition by metes and bounds took place between the coparceners of that family. If any partition by metes and bounds had been effected by Shantikumar during his lifetime, then undoubtedly, according to the legal position,Kalavati would have got one-third share in the assets held by that Hindu undivided family. But no such partition by metes and bounds had taken place during Shantikumar''s lifetime and, therefore, the question is as to what was the nature of the right which Kalavati as a member of the Hindu undivided family enjoyed after September 1, 1961. As already pointed out, after September 1, 1961, Kalavati and Bhadrakumar were the only members of that Hindu undivided family.
12. In Commissioner of Gift-tax v. Mrs. Taramati Hariprasad Vasa, a Full Bench of this court, of which I was a member, held that under the Hindu law a wife or mother has no right or interest in the family properties, except of right of maintenance, until an actual partition takes place and the property is divided by metes and bounds. The Full Bench held that until the actual partition by metes and bounds, the wife having no right or interest in the joint family properties, the relinquishment by the wife or agreement by the wife not to claim any share at the time of partition between her husband and her sons does not amount to a gift as she was not giving up her right to be maintained out of the rest of the joint family properties. That was a case of partial partition of the Hindu undivided family between the husband and the sons of the lady concerned. The Full Bench pointed out in that case that the right of a mother or of a wife to get a share on partition by metes and bounds between her husband and her sons arises from a right to be maintained out of the joint family properties and what is given to the mother or the wife, as the case might be, as a share, is property in lieu of her maintenance. This property which is equivalent to a share of her son is given, according to the Full Bench decision, in lieu of her maintenance but there must be a partition by metes and bounds before a wife can get a share equivalent to that of a son from joint family properties. Secondly, such partition by metes and bounds must take place between her husband and her son or sons, as the case may be, or between her sons. Otherwise, she has no right to demand a partition or to get a share in her own right. Till a partition by metes and bounds takes place, she had merely a right to be maintained out of the joint family properties. That is the effect of the decision of the Full Bench in Commissioner of Gift-tax v. Mrs. Taramati Hariprasad Vasa. We may point out that the Full Bench in that case held that the decisions of the Bombay High Court in Raoji Bhikhaji v. Anant Laxman and of the Calcutta High Court in Sheo Dyal v.Judoonath had been approved by the Privy Council in Pratapmull v. Dhanbati Bibi.
13. It was contended by Mr. Patel on behalf of the assessee that the decision of the Privy Council in Pratapmull v. Dhanbati Bibi was declared to be no longer good law by the Supreme Court in Munnalal v. Rajkumar. However, it must be observed, that the Supreme Court made that observation regarding the decision in Pratapmull v. Dhanbati Bibi, being no longer good law, in the context of the rights of a Hindu widow to get certain rights under the Hindu Women''s Rights to Property Act as the widow''s rights were enlarged by the provisions of section 14(1) of the Hindu Succession Act, 1956. It was in that particular context that the Supreme Court observed that the decision in Pratapmull v. Dhanbati Bibi is no longer good law. The provisions of section 4 of the Hindu Succession Act make it clear that except to the extent to which a provision has been made in the Hindu Succession Act itself the rest of the Hindu Law still prevails and Pratapmull v. Dhanbati Bibi explained what the correct position according to what may be called Sastric Hindu Law is or was prior to the modification of that Sastric Law by enactments, namely, Hindu Women''s Rights to Property Act, 1937, and Hindu Succession Act, 1956. Under these circumstances the decision in Pratapmull v. Dhanbati Bibi as explaining the correct legal position under Sastric Hindu law still holds the field except to the extent to which it is modified by specific provision of the Hindu Succession Act.
14. In view of this legal position, it clearly follows that Kalavati herself had no right to demand a partition or to get a share on partition equivalent to that of a son when a partition was purported to be effected between herself an Bhadrakumar recorded in the document of September 11, 1961. No partition between Kalavati''s sons was taking place on September 11, 1961. No partition by metes and bounds was being effected between her husband or her son and it was not open to Kalavati in her capacity as guardian of Bhadrakumar to effect a partition between herself and Bhadrakumar.
15. It was contended on behalf of the assessee the even by an agreement, a partition can be effected between the adult members of a coparcenary and a minor''s share can be even partitioned out during his minority and it is open in such a case to a minor to challenge the partition subsequently if he has not a got a fair deal on such a partition. But in the instant case no partition between coparceners was taking place. On the one hand was Kalavati, his mother, and on the other hand was the sole surviving coparcener in this Hindu undivided family, namely, Bhadrakumar. A partition can only take place between the coparceners; the rights of certain Hindu females who are also members of that Hindu undivided family, have to be taken care of. It is as a part of such taking care of the rights of female members of the Hindu undivided family that provision is made by giving a share equivalent to that of a son to a mother or wife or by making provision for maintenance till marriage and marriage expenses of the unmarried daughters of the family. But short of such provision being made at the time of partition between coparceners, Hindu females have no right under Sastric Hindu Law to demand a partition by metes and bounds. The position becomes all the more glaring when we find that on September 11, 1961, there were only two members in this Hindu undivided family each owning the business of Bipinchandra Gautamkumar, namely, Kalavati in her own right and Bhadrakumar and, therefore, in view of this legal position, Kalavati had no right to demand the partition. Since there was no other coparcener in this Hindu undivided family, there was no question of a partition by metes and bounds being effected and least of all could Kalavati get a share on such a partition. Therefore, this partition as had been set out in the fourth sub-paragraph of paragraph 1 of the document dated September 11, 1961, was not effective in law and was contrary to the provisions of law. Therefore, no partition as regards two-thirds interest in the firm of Bipinchandra Gautamkumar can be said to have been effected between Kalavati and Bhadrakumar by virtue of the recitals set out in the document of September 11, 1961. Therefore, after September 11, 1961, all that happened was that the Hindu undivided family consisting of Kalavati and Bhadrakumar continued to have two-thirds interest in the joint family business and by virtue of the releases effected by Gautamkumar in their favour on September 11, 1961, each of them individually was entitled to one-sixth share in the business of Bipinchandra Gautamkumar. This is the only conclusion which can be reached in the light of the legal position discussed above.
16. It may be pointed out that in the course of this discussion, in order to answer the question referred to us, we had to examine the entire legal position regarding the different assessable entities and the share and rights of each of theses different assessable entities so that the correct legal position regarding the rights and liabilities of the different members of this Hindu undivided family and those of Gautamkumar who released his rights as far back as 1956, can be correctly understood. So far as the question referred to us in this reference is concerned, we must answer it in the negative since we hold that no valid partition was effected between Kalavati, the mother, and minor son, Bhadrakumar.
17. We, therefore, answer the question in the negative. The assessee will pay the costs of this reference to the Commissioner.
18. Question answered in the negative.
