Calcutta H.C : The above references respectively under ss. 27(1) and 27(3) of the WT Act, 1957, are being heard together and are disposed of by this judgment.

DIPAK KUMAR SEN , ACTG. C.J.:

The above references respectively under ss. 27(1) and 27(3) of the WT Act, 1957, are being heard together and are disposed of by this judgment.

2. The material facts found or admitted and the proceedings leading up to the above references are, inter alia, that one G. S. Atwal, since deceased, had acquired assets and properties, movable and immovable, during his lifetime out of his individual earnings. The said G. S. Atwal died intestate on 28th Jan., 1961, leaving him surviving his four sons and his widow as his legal heirs and representatives. For the asst. yrs. 1961-62 to 1965-66, J. S. Atwal, the eldest son of the deceased, filed returns of wealth as the Karta of an HUF, the assessee, consisting of the said four sons and the widow of the deceased. The assets and properties of the deceased were shown to belong to the said HUF. Assessments for the said asst. yrs. 1961-62 to 1965-66 were completed on the basis of the returns filed as aforesaid treating the HUF as the assessee. From the orders of assessments, appeals were preferred by the assessee before the AAC wherein the assessments were sought to be impugned on certain points including the valuation of the properties and assets. From the orders of the AAC, the assessee preferred further appeals before the Tribunal.

At the hearing of the appeals before the Tribunal, the assessee sought to raise by way of an additional ground of appeal that the properties and assets of the deceased G. S. Atwal were inherited by his legal heirs and representatives individually under the Hindu Succession Act, 1956, and the same could not be assessed in the hands of any HUF. The Tribunal did not allow the said ground to be raised in the proceedings, inter alia, on the ground that to adjudicate on the said ground further evidence of fact would be necessary.

For the asst. yrs. 1966-67 to 1969-70 with which we are concerned, the assessee also filed returns of net wealth in the same status as in the earlier years. The assessee was assessed to wealth-tax by the WTO as an HUF as declared in the returns.

Appeals were filed by the assessee against the assessments to the AAC before whom the assessee raised an additional ground that the Hindu Succession Act, 1956, would govern the position and the entire properties and assets of the said G. S. Atwal, deceased, who died intestate in 1961 had devolved under s. 8 of the said Act of 1956 on the legal heirs and representatives of the deceased individually and not on the assessee as an HUF. The AAC allowed the said additional ground of appeal to be urged being of the view that it went to the root of the matter.

It was contended on behalf of the assessee before the AAC that under s. 8 of the Hindu Succession Act, 1956, the properties and assets of the late G. S. Atwal who died intestate in 1961 would devolve on his legal heirs in their individual capacities and, therefore, the assessments in the assessment years involved in the status of an HUF were void, illegal and liable to be cancelled.

It was contended on behalf of the Revenue that even if the legal devolution of the properties of the deceased was accepted, there was nothing in law to bar his legal heirs and representatives from constituting an HUF as had been held out by the assessee.

The AAC held that indisputably the properties left by the deceased had been absolutely owned by him in his individual capacity and no part thereof was ancestral or was held by him at his death as part of coparcenary property. Construing the provisions of the relevant provisions of the Hindu Succession Act and following the decision of this Court in Malchand Thirani & Sons vs. CIT (1980) 121 ITR 976 (Cal) : TC37R.279, the AAC held that the widow and the four sons of the late G. S. Atwal had inherited the properties of the deceased as heirs and not by survivorship. The said successors took the properties per capita and not per stirpes and as tenants-in- common. He held further that there was no evidence on record to show that the persons who succeeded to the properties of the deceased had thrown the same in a common hotchpot or intended to do so. The filing of returns in the status of an HUF and the fact that the question was not raised in the earlier assessment years was the result of a bona fide misconception of Hindu law and in particular the Hindu Succession Act, 1956. It was also held that the widow, as one of the heirs of the deceased had acquired a definite share in the properties and assets devolved as a full owner under s. 14 of the Hindu Succession Act and could not impress such property with the character of joint family property. He concluded that the properties and assets of the deceased could not be held by his heirs in the status of an HUF and under s. 5 of the WT Act, 1957, the same were chargeable to tax separately in the hands of the five heirs on their respective shares. He cancelled the assessments made on the HUF and directed the WTO to make separate assessments under s. 17A (4) of the WT Act.

Being aggrieved, the Revenue preferred appeals from the order of the AAC to the Tribunal. It was contended on behalf of the Revenue before the Tribunal, inter alia, that the conduct of the assessee in filing the returns for the asst. yrs. 1961-62 to 1969-70 in the status of an HUF could not be explained on the ground that the assessee had proceeded upon an erroneous impression of law. There was no evidence on record to show that there was such error or mistake on the part of the assessee. It was contended that though under the Hindu Succession Act, 1956, properties of the deceased devolved on the heirs of the late G. S. Atwal in their individual capacities, it was open to the latter to constitute an HUF by putting their individual properties into a common hotchpot. The past conduct of the assessee spreading over a long time showed that the heirs of the deceased had exercised their option and constituted an HUF. The assessee was not entitled to resile from the position accepted in all the past assessment years though the principles of res judicata did not apply in Revenue proceedings.

It was contended on behalf of the assessee that in view of the provisions of the Hindu Succession Act, 1956, and the decision of this Court in Malchand Thirani & Sons (supra), the decision of the AAC should be upheld. The properties of the deceased had reached the hands of his heirs in their individual capacities and there was nothing on record to show their intention to throw the same into a hotchpot. In any case, the widow of the deceased could not impress her share of the properties with the character of joint family property of an HUF.

The Tribunal held that the finding of the AAC that the properties of the deceased devolved on his legal heirs in their individual capacities could not be assailed in law, but there was nothing in Hindu law which prohibited the said heirs from forming an HUF and throwing their individual properties into the common hotchpot. Even the widow was entitled in law to bring her individual share of the property into the common hotchpot with the consent of the other members. Following the decision of the Supreme Court in Pushpa Devi vs. CIT 1977 CTR (SC) 348 : (1977) 109 ITR 730 (SC) : TC37R.168, the Tribunal held that in such a case, it would be presumed that the female member had made a gift of her property to the HUF.

The Tribunal held that whether it was the intention of the heirs of the deceased to bring their individual properties into the common hotchpot of the HUF was a question of fact and the filing of returns by the assessee as an HUF prima facie indicated such an intention. It was to be established by the assessee that they had no intention to form an HUF and that they had filed their returns under a mistaken belief of law. It was on record that the heirs of the deceased had declared themselves to be an HUF and that J. S. Atwal was the Karta thereof in their returns and duly verified the same. There was also nothing on record to show that such returns had been filed for 10 years without knowing the correct law or under a mistaken belief of law or that the persons concerned came to know the correct position in law only later.

It was held that the aforesaid were questions of fact and a mere averment of the assessee that they had filed the returns under a mistaken belief of law was not established.

The Tribunal held further that filing of the successive returns with verified declarations therein constituted evidence to establish the intention of the heirs of the deceased to pool the properties inherited individually to constitute an HUF.

The Tribunal set aside the order of the AAC and held that the assessments in the status of an HUF on the basis of the returns were valid.

On an application by the assessee under s. 27(1) of the WT Act, 1957, the Tribunal has referred the following question as a question of law arising out of its order for the opinion of this Court in Matter No. 746 of 1982:

“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the members of the assessee family had constituted themselves into a joint family in respect of the properties inherited by them individually from G. S. Atwal and that the returns filed by them as HUF in respect of the asst. yrs. 1961-62 to 1969-70 constituted evidence of their intention so to do ?”

On an application of the assessee under s. 27(3) of the WT Act, 1957, the Tribunal was directed to refer the following: question as a question of law arising out of its order for the opinion of this Court in Matter No. 2799 of 1987 :

“Whether the aforesaid conclusion of the Tribunal, viz., that the filing of the returns and signing declaration therein would amount to evidencing of the intention of the members of the family that they wanted to pool together their properties which they had individually inherited from the deceased, G. S. Atwal, to continue as an HUF is unreasonable and perverse ?”

3. At the hearing, learned advocate for the assessee submitted that apart from the returns filed, there was no evidence before the Tribunal to establish that the heirs of the deceased had voluntarily constituted themselves into an HUF. The said returns had not been signed by all the heirs and in any event, the same had been filed under a mistaken belief of law. Under s. 8 of the Hindu Succession Act, 1956, on the death of G. S. Atwal, his assets and properties devolved on his heirs in their individual capacities which they received as tenants-in-common. There was no dispute that the deceased was not a member of any HUF and the properties and assets involved were his self-acquired individual properties.

In any event, the widow was not a coparcener and she could not throw her share of the properties and assets into the common hotchpot by merely declaring her intention to do so. The properties and assets consisted, inter alia, of immovable properties and the same could not be transferred by the widow except through a registered deed of transfer. The Tribunal, it was contended, erred in holding that a mere intention of the heirs of the deceased as indicated by the returns filed in the instant case would be sufficient to constitute an HUF in law, as no such HUF had been constituted in fact. On the facts as found, it was obvious that the returns had been filed declaring the status of the assessee to be an HUF under a mistake. In support of his contentions, the learned advocate for the assessee relied on and cited the following decisions: (a) Sirdar Bahadur Indra Singh vs. CIT (1943) 11 ITR 16 (Pat) : TC37R.343. In this case, the assessee was assessed to income-tax since 1924-25 in the status of an HUF on the basis of the returns filed by him. In the asst. yr. 1938-39 also, the assessee filed the return declaring its status to be that of an HUF, but in appeal from the assessment, raised a contention that he should be assessed as an individual. The AAC overruled the contention on the ground that no evidence had been produced in support of the contention. On an application under s. 66(3) of the Indian IT Act, 1922, the CIT was directed to state a case to the High Court on three questions. The reference was disposed of by the Patna High Court in favour of the assessee. It was observed by the Patna High Court as follows : “The property of an individual cannot become the property of a joint Hindu family by mere expression of intention unless the property is transferred to the joint Hindu family by some means recognised by law, for instance, if it is movable property, then it should be handed over to the joint family and its subsequent possession or enjoyment should be shown to be on behalf of the joint Hindu family, or if it is immovable, then it must be transferred by a registered document if its value is more than Rs. 100.”

The Patna High Court held further that the subsequent declarations made by the assessee, from time to time, in the successive assessment years did not affect the position in law as nothing further was done by the assessee beyond making mere declarations in the subsequent assessment proceedings. (b) Madan Lal vs. CED (1969) 74 ITR 84 (Raj). This decision of the Rajasthan High Court was cited for the following observations : “In our opinion, in the absence of any other circumstances, the filing of returns and getting his property taxed on the basis of joint family property were not sufficient to show an intention of abandonment of his claim on the part of Sukhdeo. It has been observed in Govind Narain Mathur vs. Mohini Devi (1960) ILR 10 Raj 1219, that a statement in connection with the assessment of income-tax that certain property was joint family property may be made for the purpose of getting some advantage under the law relating to income-tax and that it could not be evidence of any unequivocal intention on the part of the assessee to waive his interest in the self-acquired property.” (c) Goli Eswariah vs. CGT (1970) 76 ITR 675 (SC) : TC35R.247. This decision of the Supreme Court was cited for the following observations : “The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be separate property and acquires the characteristics of joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property in the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition, he renounces his individual right in that property and treats it as a property of the family. No longer he declares his intention to treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara school of Hindu law.” (d) Pushpa Devi vs. CIT (supra). In this case, the assessee had made a declaration declaring unequivocally her intention to treat some of her absolute property as joint family property of an HUF and stating further that she had abandoned for ever her separate interest and ownership therein in favour of the family to be wholly and exclusively enjoyed and possessed by it. The question arose whether the profits from the said properties should be treated as her individual income or the income of the HUF. On these facts, it was held by the Supreme Court that the right to blend the individual property as joint family property was limited to coparceners and a female member of the joint family could not blend her separate property in that manner but it was held on the facts of the case that by the declaration, the assessee must be deemed to have made a gift of her properties to the HUF and the income of the properties so gifted had to be taxed in the hands of the HUF. A female member of the HUF was not entitled to blend her individual property in the sense that the same would be shared with others but she could surrender her entire interest in the property to the exclusion of herself. (e) Addl. CIT vs. P. L. Karuppan Chettiar 1978 CTR (Mad) 311 (FB) : (1978) 114 ITR 523 (Mad) (FB) : TC37R.282 In this case, it was held by a Full Bench of the Madras High Court, on a construction of s. 8 of the Hindu Succession Act, 1956, that when a Hindu son inherited properties from his father from whom he was separated by partition, he would receive the properties as his separate and individual property and not as part of the properties of a joint family of which he may be a member. (f) Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh (1979) 118 ITR 326 (SC). This decision of the Supreme Court was cited for the proposition that there was no presumption that every person knew the law. (g) K. V. Narayanan vs. K. V. Ranganadhan, AIR 1976 SC 1715. This decisions of the Supreme Court was cited for the following observations : “It is true that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation.” (h) Malchand Thirani & Sons vs. CIT (supra). In this case, a person, his wife, three sons and two unmarried daughters had constituted an HUF.

Subsequently, the family was divided and there was a partition of the properties by a registered deed of partition. The partition was recorded in the relevant income-tax assessment and the person concerned was thereafter assessed as an individual. The said person died intestate leaving him surviving the aforesaid members of his family as also two other married daughters. The widow and all the daughters relinquished their interests in the properties of the deceased in favour of the sons by deeds of disclaimer. The ITO sought to assess the income from the properties left by the deceased as income of an HUF. The decision of the ITO was upheld by the appellate authorities.

On these facts, a Division Bench of this Court considering and construing ss. 6, 18 and 19 of the Hindu Succession Act, 1956, held that the heirs of the deceased inherited the properties of the deceased absolutely under s. 8 of the Act in equal shares per capita and not per stirpes. They held the properties as tenants-in-common and not as joint tenants. The income from the said properties could not be assessed as the income of an HUF. (i) Smt. Padma Lalchand Mirchandani vs. CIT (1981) 128 ITR 174 (Del) : TC37R.502. In this case, the assessee was a female member of an HUF and also owned a house individually. By a declaration, the assessee purported to throw half of the said house property into the hotchpot of the HUF and submitted her IT return on that basis contending that one-half of the income from the property belonged to the HUF. It was held by the ITO that as a female member of an HUF, the assessee was not competent to blend any part of her self-acquired property into the hotchpot of the HUF and the entire income of the property was assessed in her hands. The decision of the ITO was affirmed by the appellate authorities. On a reference before the Delhi High Court, it was held that the assessee, as a female member, had no right to blend her own property with the property of the HUF. The decision of the Supreme Court in the case of Pushpa Devi (supra) was followed and applied. It was further held that there was no actual or deemed gift by the assessee in favour of the HUF inasmuch as the property was immovable and could only be transferred by way of gift under a registered deed. It was noted that in the case of Pushpa Devi (supra), the Supreme Court found on facts that all the elements of a valid gift were present, viz., transfer of possession and acceptance by the donee. The properties in that case were movable properties and there was no necessity of registration and there was a valid declaration of the transfer. (j) CGT vs. Smt. Ansuya Sarabhai (1981) 22 CTR (Guj) 201 : (1982) 133 ITR 108 (Guj) : TC35R.280. In this case, the Gujarat High Court considered the case of a release by a beneficiary of a part of her right to receive income from a trust in favour of others. It was held that the said lease was neither an actual nor a deemed gift within the meaning of the GT Act and was not assessable under the GT Act.

4. Learned advocate for the Revenue submitted, on the other hand, that as the assessee in this case by voluntarily filing returns for the years declared the status to be that of an HUF, it must be held that the persons concerned had voluntarily abandoned or surrendered their interest in their individual properties and had impressed such properties with the character of joint family property. A unilateral declaration by a person was sufficient to impress his individual property with the character of joint family property. In the instant case, under the provisions of the Hindu Succession Act, 1956, the heirs of the deceased might have acquired separate interest in the properties of the deceased but there was no bar on such properties being thrown into the hotchpot of the HUF.

It was contended that the fact that the joint family in the instant case had no joint family property to start with nor had a nucleus did not stand in the way of the members from throwing their separate properties into the common hotchpot. It was submitted that the widow of the deceased as a female member of the HUF had no right to blend her separate property with the joint family property but a declaration had been made on her behalf in the IT returns filed that she was a member of the HUF and such declaration must be deemed to have the effect of a gift of her separate property to the HUF and her separate share of the properties would be treated as joint family property.

It was submitted that the facts on record had been duly considered by the Tribunal and it could not be said that the conclusion of the Tribunal was either perverse or unreasonable. In support of his contentions, learned advocate for the Revenue cited the following decisions: (a) Thakur Hari Singh vs. CIT (1967) 65 ITR 267 (Raj) : TC37R.494. In this case, a controversy arose as to the status of the assessee. The assessee contended that he should be assessed in the status of an HUF but had been wrongly assessed as an individual. A question arose whether the properties held by the assessee were impartible. On a reference, a Division Bench of the Rajasthan High Court held on facts that the properties the income from which was assessed were not part of the impartible estate but were separate properties of the assessee and that the assessee should be assessed as an HUF. The High Court further observed as

follows : “Mr. Lodha strenuously contended that the mere giving of one’s status in the return is not tantamount to a declaration of an intention to blend one’s property with that of the HUF. In a solitary instance this may not be so, because the assessment is done on the basis of the income of the previous year and the declaration in the return alone will be of no help for judging the status of the assessee in the year of account, but when this is repeated over a pretty long time and if, in the preceding year, the Department itself accepted that return, then we fail to see how it can be predicated that the assessee had not expressed his intention properly. It is true whatever is done by the ITO in one assessment year is not res judicata for the subsequent assessment year, but that is not the point. The question is whether the assessee had expressed the intention to treat his self-acquired property as the property of the HUF, though we do not propose to go into the question whether declaring one’s self-acquired property as the property of an HUF will attract gift-tax or not. The fact remains that a certain attitude, namely, that the assessee was an HUF, was persisted with for a number of years and if in the preceding year, the Department itself has accepted the status of the assessee as an HUF, then we can clearly come to the conclusion that the assessee has, by expression of a clear intention, blended his self-acquired properties with the property of the HUF and has thereby put it in the hotchpotch.” (b) Gundlapalli Mohan Rao vs. Gundlapalli Satyanarayana (1972) 84 ITR 685 (AP) : TC37R.496. In the suit, one of the questions involved was whether the first defendant had by declaration or otherwise impressed the properties in the suit with the character of joint family properties. Orders of income-tax assessments passed on returns submitted by the first defendant were tendered in evidence from which it appeared that till a particular assessment year returns had been filed by the first defendant as an individual but in two subsequent assessment years the assessee had filed returns showing the status of the family as an HUF. The IT authorities, however, did not accept the contention of the first defendant. On these facts, it was held, on appeal, by a Division Bench of the Andhra Pradesh High Court that it was manifest from the conduct of the first defendant, in the absence of any explanation, that he voluntarily made a statement in his returns abandoning or giving up his interest in his self-acquired properties and impressing the same with the character of joint family property. The fact that the ITO did not accept the statement was of no consequence. (c) Addl. CIT vs. Inder Singh Uppal (1975) 98 ITR 368 (P&H) : TC37R.167. This decision of the Punjab and Haryana High Court was cited for the proposition that it is not necessary that some joint Hindu family property must be in existence before a member of the family can impress his self-acquired property with the character of joint family property by throwing it voluntarily and intentionally into the common stock. (d) CIT vs. Bhikraj Jaipuria 1978 CTR (Cal) 162 : (1979) 119 ITR 883 (Cal) : TC37R.178. This is a decision of a Division Bench of this Court to which I was a party. In this case, the assessee filed a return in the status of an HUF and claimed to be the Karta thereof. In support of his contention, the assessee relied on a declaration certified by a Notary Public. The contention of the assessee and the said document were accepted by the Tribunal. On a reference, it was held that the finding of the Tribunal could not be held to be unreasonable or perverse on the evidence on record. It was held further that there was an unequivocal declaration by the assessee in respect of his property specified in the declaration impressing them with joint character.

Learned advocate for the Revenue also relied on the decision in Pushpa Devi’s case (supra), in support of his contention, that so far as the widow of the deceased was concerned, it should be deemed that she had made a gift of her separate share in the properties of the deceased to the joint family.

On the facts and circumstances, it cannot be disputed that on the death of G. S. Atwal, his individual properties and assets devolved on his heirs, viz., his widow and his four sons, in their individual capacities and that they acquired the same not as joint tenants but as tenants-incommon. Under s. 8 of the Hindu Succession Act, 1956, such was the devolution. This position has not been disputed on behalf of the Revenue. It is the contention of the Revenue that subsequent to the death of G. S. Atwal, his heirs voluntarily constituted themselves into an HUF and threw their respective shares in the properties and assets of the deceased inherited by them into the hotchpot of an HUF. This was established by the successive returns filed by the assessee in the status of an HUF. By filing the aforesaid returns and declaring therein their status to be that of an HUF, the heirs of the deceased not only indicated their intention to constitute an HUF but also indicated that they had voluntarily surrendered their interest in the individual shares of such properties and assets and impressed the same with the character of joint family property. So far as the widow of the deceased was concerned, the filing of the said returns also indicated that she had made a gift of her separate share in the said properties and assets to the HUF. In any event, it stood established that there was a deemed gift by the widow in favour of the HUF.

The estate of the deceased consisted of both movable and immovable properties. It is also on record that apart from the returns filed, there is no other declaration of the widow of the deceased recording unequivocally her intention to treat her share in the said properties and assets as joint family property, nor any abandonment by her of her separate rights in the said properties and assets in favour of the joint family. Without a registered deed, there could not be a valid or legal gift of the share of the widow of the deceased in the said properties and in favour of the HUF as part of the estate of the deceased consisted of immovable properties.

In Pushpa Devi’s case (supra), the properties involved were shares in the capital and business of a firm which were movable properties for the transfer of which no registered deed was necessary and there had been, apart from the returns filed, a valid declaration of the transfer by the assessee. This distinction has been noted by the Delhi High Court in Smt. Padma Lalchand Mirchandani’s case (supra). With respect, we follow the distinction made by the Delhi High Court.

As noted earlier, in the instant case, apart from the returns filed, there is no other declaration by any of the heirs of the deceased which records that they were blending their individual shares in the said properties and assets with that of the joint family property. In any event, as a female member, the widow of the deceased was not entitled to blend her separate share in the said properties and assets with the property of the HUF by a mere declaration and without a valid gift being made in favour of the HUF. Therefore in our view, an HUF consisting of the widow and the four sons of the deceased did not and could not have been constituted in law. It also appears to us that it is immaterial whether the heirs of the deceased filed their returns of wealth-tax declaring their status to be that of an HUF deliberately or under a mistake. It will have to be established whether in fact and in law an HUF came to be constituted or not. In our view, while it was possible for the four sons of the deceased to constitute an HUF by merely declaring their intention to do so and by blending their separate shares of the said properties and assets in the common pool and impressing them with the character of joint family property, it was not possible for the widow of the deceased to become a member of the HUF by merely declaring her intention to do so. A further positive act, viz., the transfer of her separate share of the said properties and assets by way of gift was required.

This is absent in the instant case and from the facts and evidence on record, it cannot be said that an HUF was constituted by the widow and four sons of the deceased and the properties inherited by them individually became the properties of the said HUF.

We hold that the filing of the returns and the declaration signed therein by the heirs of the deceased might constitute evidence of their intention to constitute a joint HUF and to put their properties into the common pool of the joint family but this, in our view, would not finally conclude the matter.

For the reasons as aforesaid, we answer the questions referred to as follows: The question referred in Matter No. 746 of 1982 is answered by stating that the Tribunal was not justified in holding that the members of the assessee family and, in particular, the widow of the deceased had constituted themselves into a joint family in respect of the properties of the deceased inherited by them as individuals. This part of the question is answered in the negative.

The other part of the question we answer by stating that the returns filed by the assessees from the asst. yrs. 1961- 62 to 1969-70 constituted evidence of their intention to do so.

The question referred in Matter No. 2799 of 1987 is answered in the negative and in favour of the Revenue.

9. The reference is disposed of accordingly. Each party will pay and bear its own costs.

SHYAMAL KUMAR SEN, J.:

I agree.

[Citation : 172 ITR 223]