The property obtained by a single coparcener on partition can gain the character of Hindu undivided family property upon the induction of a member.

K. Shivashankar Bhat, J.—The question referred under section 256(2) of the Income Tax Act, 1961 ("the Act", for shot,) in respect of assessment year 1977-78 reads as follows :

"Whether, on the facts and in the circumstances of the case, the share income from Hind Automats was liable to tax in the hands of the assessee as an individual ?"

2. The assessee in this case had obtained on a partition in the larger family, his interest in the partnership firm of Messrs. Hind Automats when he was unmarried. On his marriage on January 16, 1973, the share income, according to the assessee, came to be of the Hindu undivided family, consisting of himself and his wife. This claim was no accepted by the Income Tax Officer. On appeal, the Appellate Assistant Commissioner accepted the case of the assessee and granted the status of Hindu undivided family. On appeal by the Department, the Appellate Assistant Commissioner accepted the case of the assessee and granted the status of Hindu undividedfamily. On appeal by the Department, the Appellate Tribunal held that the existence of a wife dies not make the income derived from the erstwhile ancestral property as the of the Hindu undivided family and, accordingly, the share income belonged to the assessee as an individual.

3. In C. Krishna Prasad Vs. Commissioner of Income Tax, Bangalore, (1970) 75 ITR 526 KAR Krishna Prasad was the sole individual who obtained the property on a partition. There was no other member in his family. This court held that (at page 527) :

"In order to constitute a Hindu undivided family, it is not necessary that there must be at least two male members. A coparcener with his wife and unmarried daughters can constitute a Hindu undivided family as held by the Supreme Court in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, AIR 1966 SC 1523

4. The Bench further pointed out that in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, AIR 1966 SC 1523 the Supreme Court held that the expression "Hindu undivided family" in the Income Tax Act, 1961, is used in the sense in which a Hindu joint family is understood under the personal law of the Hindus. But, under Hindu Law, a male member of a joint Hindu family obtaining a share on partition by himself would not constitute a Hindu undivided family, when he marries and has a wife, he would be entitled to be assessed in the status of a Hindu undivided family. At page 528, this court held, after referring to "Mulla's Principles of Hindu Law" as under :

".... We have not been shown any decision or treatise on Hindu law in support of the assessee's contention that a male member of a joint Hindu family obtaining a share on partition would constitute a Hindu undivided family if he has no wife or children. No doubt, when he marries and has a wife, he would be entitled to be assessed in the status of a Hindu undivided family. In our opinion, in order to constitute a joint family, there must be more than one member; one member by himself cannot constitute a joint family. A member taking a share on partition of joint family properties has the potentialities of becoming a joint Hindu family; but until he marries he cannot be considered as a Hindu undivided family.".

5. The sentence underlined by us above clearly supports the contention of the assessee before us. This decision was affirmed by the Supreme Court in C. Krishna Prasad Vs. Commissioner of Income Tax , Bangalore, AIR 1975 SC 498 The Supreme Court held that a single individual cannot constitute a Hindu undivided family and cannot be assessed as such and that the term "family" connotes a group of people related by blood or marriage and the term "family" consisting of a single individual is a contradiction in terms. The Supreme Court also stated that the expression "Hindu undivided family" in the Income Tax Act, 1961, is used in the sense in which a "Hindu joint family" in understood under the various schools of Hindu law and that, under the Hindu law,