S. SIVASANKARAN v. INCOME TAX OFFICER
[Citation -1985-LL-0917-2]

Citation 1985-LL-0917-2
Appellant Name S. SIVASANKARAN
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 17/09/1985
Assessment Year 1981-82
Judgment View Judgment
Keyword Tags income from house property • partition deed • life interest • karta
Bot Summary: Mahathma Gandhi Road, and after his death, his wife would have the l i f e 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. According to Shri Sivansankaran, 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. According to him, since the property was received on partition, the property had the character of an HUF property. The learned counsel for the assessee submitted that the property has devolved on Shri Sivasankaran on the demise of his mother and 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 was ancestral property. The share which a coparcener obtained on partition of ancestral property is ancestral property as regards his male issue. What Shri Sivasankaran obtained was property by way of partition and it would partake the character of an HUF property.


1. This appeal is by assessee and relates to assessment year 1981-82. assessment made is in status of HUF and only controversy centers round inclusion of property income from house property at 59, Mahathma Gandhi Road, Panruti, in assessment of HUF. 2. facts are: Shri Sivansankaran, karta of HUF and his brother together with their father and mother constituted HUF. HUF possessed several items of property out of which two items were Nos. 59 and 60, Mahathma Gandhi Road. There was partition of larger family on 13-10- 1970. By this partition deed it was provided that father of Shri Sivasankaran, i.e. karta of larger HUF would have life interest in properties at Nos. 59 and 60. Mahathma Gandhi Road, and after his death, his wife would have l i f e interest in 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 deed of partition was executed and mother died 2-9-1973. According to Shri Sivansankaran, in HUF of which he was karta, income from property No. 59, Mahathma Gandhi Road, could not be included because it was his individual property. ITO did not agree. According to him, since property was received on partition, property had character of HUF property. assessee, Shri Sivasankaran, appealed but without success to AAC. 3. Before me, learned counsel for assessee submitted that property has devolved on Shri Sivasankaran on demise of his mother and, therefore, it should be treated as individual property. learned departmental representative, on other hand, submitted that property. learned departmental representative, on other hand, submitted that property came to Shri Sivasankaran by way of partition and, therefore, was ancestral property. 4. I have considered submissions. share which 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 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 fully ownership can also be subject of partition. For example, right of way is presumed to have remained joint, if there is no evidence that it was allotted to particular member at time of partition [see in this regard Mulla on Principles of Hindu Law, 15th edn. paragraph No. 303]. In present case, what has happened is that life interest in property, reserving remainder man's interest to two sons, went first to father and afterwards to mother on partition. At time of partition itself, remainderman's interest to two sons. This became complete interest on property on demise of parents. parents had only limited interest in property by way of partition, which interest in terms of partition deed itself passed on to two brothers after interregnum of remaining lifetime of father and thereafter of mother of two brothers. Hence, what Shri Sivasankaran obtained was property by way of partition and it would partake character of HUF property. orders of authorities below are upheld. 5. In result, appeal fails and stands dismissed. *** S. SIVASANKARAN v. INCOME TAX OFFICER
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