Andhra Pradesh H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the Karta’s wife is entitled to a share at the time of partition on par with her sons in lieu of maintenance ?

High Court Of Andhra Pradesh

CIT vs. I. Markondeya

Sections Hindu Adoption and Maintenance Act, 1956, ss. 18 & 20

S.R. Nayak & S. Ananda Reddy, JJ.

Case Refd. No. 150 of 1991

26th July, 2001

Counsel Appeared

J.V. Prasad, for the Applicant

ORDER

S.R. NAYAK, J. :

The following two questions of law arising out of the order of the Tribunal dt. 18th June, 1987, in IT Appeal Nos. 818 to 820 (Hyd.) of 1985 are referred to this Court by the Tribunal as directed by this Court under s. 256(2) of the IT Act, 1961 (‘the Act’) :

“1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the Karta’s wife is entitled to a share at the time of partition on par with her sons in lieu of maintenance ?

2. Whether, on the facts and in the circumstances of the case, the Tribunal should have observed that since Karta is getting a share at the time of partition with his sons, his wife is not entitled to a share towards maintenance ?” One I. Markondeya and his two sons Srihari and Sridhar were co-parceners of the joint family of which the said I. Markandeya was the Karta. The joint family owned a house at Bellary. It was acquired by the Government of India and the joint family received a sum of Rs. 3,89,995 by way of compensation. Thereafter, a memorandum was executed on 24th Dec., 1978, to record the oral partition giving 1/4th share to each of the male members of the joint family consisting of I. Markendeya and his two minor sons as well as his wife by name Smt. Sita Mahalakshmi. In terms of the memorandum, it was agreed among them that the amount of compensation be dividend equally between the Karta, his wife and two minor sons. The ITO accepted the assessee’s claim of partition dividing the property into four shares and on that basis computed the income. However, subsequently the CIT exercising power under s. 263 of the Act held that according to Southern School of Mitakshara Law, the wife is not entitled to a separate share in the joint family property and, therefore, the assessment made by the ITO holding that 1/4th share of capital gain is assessable in the hands of each of these assessees is erroneous and prejudicial to the interest of the Revenue, by his order dt. 29th March, 1985. Against the said order of the CIT, the father and two sons preferred appeals before the Tribunal.

Before the Tribunal it was contended that though the practice of allotting a share to the wife has become obsolete, still it is not a rule of law. Alternatively, it was contended that under the provisions of the Hindu Adoption and Maintenance Act, 1956 the wife is entitled to maintenance and, therefore, 1/4th share allotted to her be treated as the maintenance provided to her at the time for the partition of the joint family property. It is also contended that 1/4th share allotted to wife towards maintenance is not excessive. The Tribunal placing reliance on the judgment of the Madras High Court in P. Audemma vs. P. Varadareddy AIR 1949 (Mad) 31 and on the judgment of this Court in Adusumilli Seethamahalakshmamma vs. Yerneni Chalamaiah AIR 1974 AP 130, held that the wife is not entitled to a separate share in the joint family property. However, the Tribunal on consideration of many authorities and case law, including the judgment of this Court in CGT vs. Valluru Venkateswara Rao (1980) 123 ITR 54 (AP), came to the conclusion that the wife of the Karta is entitled to be maintained by the Karta and her sons and provision could be made in favour of such female at the time of partition of the property of the Hindu Joint Family. The Tribunal also found as a matter of fact that 1/4th share in the joint family property was allotted to the wife of the Karta at the time of partition towards her maintenance. So holding, the Tribunal allowed the appeals filed by the father and two sons.

The only question that arise for our consideration is whether the finding of fact recorded by the Tribunal calls for interference. There is no controversy and there cannot be any controversy that under the provisions of the Hindu Adoption and Maintenance Act, the wife of the Karta herein Smt. Sita Mahalakshmi has an enforceable right for maintenance both against her husband and sons as per ss. 18 and 20 of the Hindu Adoption and Maintenance Act. It was specifically pleaded before the Tribunal that 1/4th share was allotted to the wife of the Karta towards her maintenance and that the said share is not excessive. The Department has not placed any material either before the Tribunal or before this Court to show that 1/4th share allotted to the petitioner is not towards maintenance or that it is excessive. Be that as it may, the finding recorded by the Tribunal that 1/4th share was allotted to the wife towards her maintenance and that it is not excessive is a pure finding of fact.

In that view of the matter, we answer the questions referred to us in favour of the assessee and against the Revenue. No costs.

[Citation : 252 ITR 136]

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