Under the Dayabhaga school of Hindu law, a joint family amongst brothers is a creation not of law but of a desire to live jointly.

BANERJEE, J.

1. This is a reference under s. 27(1) of the WT Act, 1957. The assessment year is 1959-60, the corresponding valuation date being 31st March, 1959. The reference has been made in the circumstances hereinafter stated in brief. One Prafulla Chandra Bhar, a Hindu governed by Dayabhaga School of law, died intestate on 27th April, 1956. His mother, widow, three sons and one daughter survived him. Since the death had taken place before the Hindu Succession Act, 1956, came into operation, he was succeeded by his widow, Sm. Radha Rani Bhar, and his three sons, namely, Uma Sankar, Gouri Sankar and Durga Sankar, each inheritong one-fourth share in the estate. Gouri Sankar, a son of the deceased, took out letters of administration and filed the wealth-tax return, and his capacity as the administrator to the estate of the deceased, therein describing the status of the assessee as an HUF. The WTO also treated the status of the assessee as an HUF. He took the net value of the assets at Rs. 8,39,125 and calculated the tax payable thereon at Rs. 4,391.25 P. Gouri Sankar, as the administrator to the estate, filed an appeal before the AAC and contended : (1) that the WTO was wrong in proceeding on the basis that the assessee was an HUF and in charging tax on that basis : (2) that the family being governed by the Dayabhaga school of law and the share of the coparceners in the properties left by the deceased being definite and ascertained, the assessment should not have been made in their status as an HUF and each members of the family should have been assessed separately upon the value of his or her respective share in the inherited property : (3) that under the provisions of S.21 of the WT Act, the assessment should have been made on the individual members and not on the HUF, because some of the members of the family were not at all owners of the property. The objections on the aforesaid grounds, we need notice, were taken up, for the first time, before the AAC. The AAC overruled the contentions, being of the opinion that even in a Dayabhaga family, notwithstanding the fact that the shares of the co- parceners were definite and ascertained, the income from the property of the family did not belong to the several members in specified shares but continued to belong to the HUF as a whole. He expressed the further opinion that, unless and until there was a partition in the family, the property and assets of the family belongs to the HUF. The assessee thereafter appealed before the Tribunal. The Tribunal reversed the order of the AAC with the following observations :

"Unlike the principles that govern an HUF in Mitakshara law, the coparcener under Dayabhaga law has a definite share in the properties left by the deceased and he is legally the owner thereof. Owners, in the instant case, are determinate and the shares defined. Since the wealth-tax is levied on the basis of the ownership, it is quite proper that the assessment should be made on the individual coparceners on their respective shares. The assessment of the total wealth in the hands of the HUF, some members of which are not owners of any part of the property, would be illegal. Accordingly, we allow the contention of the assessee cancel the assessment."

In the above view, the Tribunal canceled the assessment and gave liberty to the wealth-tax authorities to make assessment on the individual coparceners according to law. Thereupon, at the instance of the CWT, there was a reference made to this Court for opinion on the following question of law :

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in canceling the assessment made in the status of an HUF ?" Since the reference raises certain fundamental points concerning Dayabhaga law of succession, we not only heard the learned counsel for the parties but also invited Mr. Sukumar Mitter, a well known counsel of this Court, to help us as amicus curiae. Counsel for the parties as well as Mr.