JUDGMENT ORDER OF REFERENCE To FULL BENCH S. P. GOYAL J. (14-11-1985).-The question referred to this court in this case is as to whether Tribunal was justified in holding that karta being sole surviving coparcener could not effect partition of family property between himself and his wife. Learned counsel for parties are agreed that on this matter there is apparent conflict between two Division Bench decisions of this court, namely, Kundan Lal v. CIT/CWT [1981] 129 ITR 755 and CIT v. Narain Dass Wadhwa [1980] 123 ITR 281. In former case, it was held that wife cannot claim partition of Hindu undivided family as matter of right but partition made by karta was upheld on ground that there was earlier partition between father and his son and as wife had not given up her share, she was entitled to claim it even later on. On contrary, in later case, where Hindu undivided family consisted of " K ". his mother and two sisters, it was held that " K " being coparcener could claim partition and partition made by him was upheld. In this case, " K " was sole coparcener and there being no other person having proprietary interest in property, partition could not be effected according to rule laid down in former case. As it is necessary to resolve conflict between two decisions, this case is ordered to be placed before my Lord Chief justice for referring same to larger Bench. JUDGMENT OF FULL BENCH S. P. GOYAL J. (13-8-1986).-The question referred to this court in this case is as to whether Tribunal was justified in holding that karta being sole surviving coparcener could not effect partition of family property between himself and his wife. As there was conflict on this question between two Division Bench decisions of this court in Kundan Lal v. CIT/CWT [1981] 129 ITR 755 and CIT v. Narain Dass Wadhwa [1980] 123 ITR 281, case was referred to Full Bench. assessee is Hindu undivided family consisting of Sat Pal Bansal and his wife, Smt. Banti Bansal. Daring course of assessment proceedings relating to year 1973-74, claim was made before Income-tax Officer that partial partition had been effected qua family business capital at instance of wife of karta and each of them was credited with Rs. 30,374.78. assessing authority rejected claim on number of grounds including one that wife could not claim partition nor could it be effected by karta, he being sole surviving male member of Hindu undivided family. Having failed before Appellate Assistant Commissioner, assessee went in further appeal before Tribunal who affirmed order of authorities below holding that neither could wife demand partition under Hindu law nor could husband who was sole surviving coparcener of Hindu undivided family divide family property between himself and his wife at her instance. answer to question referred to us obviously depends upon nature of rights of wife in property of Hindu undivided family. It is not disputed that female members of Hindu undivided family, according to Hindu law, have no share in joint family property and their interest is confined to maintenance only. As stated in para 315 of Hindu law by Mulla, wife cannot herself demand partition of Hindu undivided family property, but if partition does take place between her husband and his sons, she is entitled to receive share equal to that of son and to hold and enjoy that share separately even from her husband. share which is allotted to wife or mother, as held by Full Bench of Gujarat High Court in CGT v. Mrs. Taramati Hariprasad Vasa [1969] 74 ITR 211, is in lieu of her right of maintenance and allotment of such share does not show that she had any right or interest in Hindu undivided family property. Before one can visualise or think of partition, property has to be owned by more than one person. Obviously, sole owner cannot divide property. grant of any share in property by sole surviving male member of Hindu undivided family to wife or to mother would be only in nature of settlement of property upon them in lieu of their right of maintenance and cannot by any stretch of reasoning be said to be partition of property amongst them. We are, therefore, of considered view that no partition, partial or otherwise, would be possible in case of Hindu undivided family consisting only of one male member or sole coparcener. Similar view was taken by Gujarat High Court in CIT v. Shantikumar Jagabhai [1976] 105 ITR 795 and Madras High Court in T. G. K. Raman (HUF) v. CIT [1983] 140 ITR 876, which we fully endorse. Now, we may consider two decisions of this court referred to above. In Kundan Lal's case [1981] 129 ITR 755 (P & H), Hindu undivided family originally consisted of father, three sons, wife and daughter. three sons separated from family on different dates and got their share out of Hindu undivided family properties. After their separation, Hindu undivided family consisted of husband, his wife and their unmarried daughter. Although wife was entitled to share on each of occasions when three sons separated, none was allotted to her. Later on, partial partition was effected by Kundan Lal between himself and his wife which was subject matter of dispute. Bench upheld partial partition on ground that when partition took place between father and sons, wife was entitled to share and she, never having acquiesced or relinquished her right, could legitimately claim her share in Hindu undivided family property. As is evident from these facts, Hindu undivided family, when partition took place for first time, consisted of more than one coparcener or male member. When partition amongst them took place, wife was entitled to share equal to that of son. No share having been allotted, she was entitled under law to claim her share and partial partition made to recognise that right was, therefore, rightly sustained. Neither of two learned counsel for parties disputed correctness of this decision. In Narain Dass Wadhwa's case [1980] 123 ITR 281 (P & H), when partial partition was effected, Hindu undivided family consisted of " K ", his mother and two sisters. Bench upheld said partition on ground that karta of Hindu undivided family did not cease to be coparcener, and as coparcener, he had right to claim partition and effect same amongst himself and his family members. fallacy in reasoning is so obvious that it himself and his family members. fallacy in reasoning is so obvious that it does not need any elaborate discussion for it to be refuted. As discussed above, sole owner cannot effect partition of property. mother and two sisters were not coowners in Hindu undivided family property and they having only right of maintenance, therefore, no partition could be effected by karta of Hindu undivided family between himself and said family members. further observation of Bench that even if division of capital may be taken as family arrangement that would also amount to partition, cannot be sustained. allotment of any amount to family members out of Hindu undivided family funds would at best be settlement in lieu of recognition of their right of maintenance which cannot by any stretch of reasoning be described as arrangement in nature of partition of Hindu undivided family properties. This case, therefore, was not correctly decided and is hereby overruled. Learned counsel for assessee then referred to following observations of this court in I.T.R. No. 27 of 1977 (Ram Narain Paliwal v. CIT [1986] 162 ITR 539), decided on October 18, 1985 (p. 542): " It would hardly matter whether mother was entitled to claim partition or not, and even if Ram Narain was sole male coparcener, he could effect partition. Income-tax law and particularly section 171 of Act does not envisage that if members of Hindu undivided family are mother and her son, such Hindu undivided family is debarred in law in effecting complete or partial partition of Hindu undivided family assets ". In that case, when partial partition was effected, Hindu undivided family consisted of Ram Narain, his mother, wife, four minor sons and one daughter. There being thus more than one coparcener or male member of Hindu undivided family, partial partition could validly be effected by karta. observations noted above, therefore, are in nature of obiter dicta. Otherwise, in view of our conclusions stated above, observation made by Bench to extent that karta would not be debarred from effecting partition even if he is sole surviving coparcener or male member has to be overruled. Learned counsel for assessee also relied on Supreme Court judgment in Apoorva Shantilal Shah v. CIT [1983] 141 ITR 558 and judgment of Allahabad High Court in CIT v. Govind Narain [1975] 101 ITR 602, but we need not discuss these decisions in detail because both of them are distinguishable on facts. In each of these decisions, Hindu undivided family consisted of more than one coparcener or male member and as such any observation made therein has no bearing on present case. In result, decision in Narain Dass Wadhwa's case [1980] 123 ITR 281 (P & H), is overruled and question referred to us is answered in affirmative, that is, against assessee and in favour of Revenue. No costs. *** SAT PAL BANSAL v. COMMISSIONER OF INCOME TAX