JUDGMENT

BEG, C.J.I. :— The appellant, a Hindu Undivided Family, is before us by special leave through its Karta Tolaram. The statement of the case shows that Narmal, who died in the year 1945, left three sons, Srinivas, Nathmal and Tolaram Narmal had carried on an Hindu undivided family business started round about 1925. It appears that the name of the business was changed to Nathmal Tolaram from 1936-37 and that the income of the business was assessed as Hindu Undivided Family income since then. The previous records do not seem to be very clear. but, from the year 1942 to 1950, the income of this business was certainly assessed as Hindu Undivided Family income. It was partitioned with effect from 6th April. 1949. After the partition, the business carried on at two places, Dhubri and Gauripore, was converted into a partnership business evidenced by a deed of partnership executed between the three brothers on 7th April, 1949. In this deed, it was admitted that the business had been carried on previous to the partition as Hindu Undivided Family business.

2. On 19th September, 1950, an application was made under section 25A the Income-tax Act, 1922, to record and register the partition. This was done on 17th August, 1954. On 29th March. 1959, the firm of M/s. Nathmal Tolaram was dissolved and a new firm Nathmal Tolaram (Petrol Depot) came into existence. In the assessment year 1959-60 Tolaram claimed that his share in the partnership business should be assessed separately as his individual income. His claim was rejected by the Income-tax Officer, but was accepted in appeal.

3. We than come to the relevant assessment year 1960-61, when Tolaram made a similar claim to separate assessment of income derived from the partnership business in petrol amounting Rs. 21,746/-. The Income-tax Officer rejected this claim. The Appellate Assistant Commissioner also, on an appeal, after reviewing the entire set of facts and circumstances in the light of fresh materials which were available, affirmed the order of the Income-tax Officer rejecting the claim of the appellant. The Incometax Tribunal and then the High Court also affirmed this position.

4. The appellant, however, obtained special leave to appeal from the judgment of the High Court deciding the following question framed before it against the appellants:

"Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the share income of Rs. 21,746/- from Messrs. Nathmal Tolaram (Petrol Depot) was assessable in the hands of the assessee family?"

5. The position seems to be clear in law. The following passage in Mullas Hindu Law, Fourteenth Edition. at p. 278 has been quoted and relied upon by the High Court:

"228. Property jointly acquired. - (1) Where property has been acquired in business by person constituting a joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is merely the joint property of the joint acquirers or whether it is ordinary partnership property. If it is joint family property. the male issue of the acquirers take an interest in it by birth (s. 221, sub-s. (1)). if it is the joint property of the acquirers, it will pass by survivorship, but the male issue of the acquirers do not take interest in it by birth (s. 221, sub-s, (2). If it is partnership property, it is governed by the provisions of the Indian Partnership Act, 1932, so that the share of each of the joint acquirers will pass on his death to his heirs, and not by survivorship.

(2) If the property so acquired is acquired with the aid of joint family property, it becomes joint family property.

(3) If the property so acquired is acquired without the aid of joint family property, the presumption is that it is the joint property of the joint acquirers, but this presumption may be rebutted by proof that the persons constituting the joint family acquired the property not as members of joint family, but as