The provisions of the Hindu Succession Act, 1956 have modified the principles of Mitakshara Law to the extent that a female member of a HUF can inherit the share of her deceased husband and can also demand partition for the purpose of claiming her share.

This reference under section 256 (1) of the Income Tax Act, 1961, for short 'the Act' has been made at the instance of the Revenue, the following is the question referred to the High Court.

“Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that there was valid partition for purpose of section 171 Of the Income Tat Act, 1961, in the HUF consisting of son and mother only ?"

2. The assessment in queition relates to the assessment year 1979-80 The assessed is a Hindu undivided family consisting of a son and his mother duly. The assessee contended before the income-tax Officer that there was or oral partition or family arrangement which took effect from 4.4.79 and confirmation of the same the parties executed a document on 18.5.79 and under the partition immovable properties described in Schedule B were allotted to son and movable properties described in Schedule C were allotted to the mother and thereafter they have been enjoying the properties separately. On these averments it was contended that HUF cannot be assessed and the individuals may be assessed. The Income-tax Officer overruled this contention on the ground that the mother, though she is a member of the HUF, is not a coparcener and there cannot be a partition between the only male member of the HUF and a female member and the partition therefore is not valid and cannot be recognised for the purpose of section 171 of the Act. In appeal by the assessee, the Appellate Assistant Commissioner reversed the finding of the Income-tax Officer and upheld the partition and directed the Income-tax Officer to pass consequential orders of the Appellate Assistant Commissioner.

3. Sub-section (1) of section 171 of the Act states that a Hindu family ^hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family. Sub-section (2) requires that when a claim is made in regard to a partition by any member of HUF, the Assessing .Officer shall make an inquiry there in to after giving notice of the inquiry to all the members of the family. On completion of the inquiry, sub-section (3) requires the Officer to record a finding as to whether there has been a total or partial partition of the joint family property, and, if there has been such a partition, the date on which it has taken place. According to sub-section (4) where a finding of total or partial partition has been recorded by the Assessing Officer and the partition took place during the previous year, the total income of the joint family in respect of the period upto the date of partition shall be assessed as if no partition had taken place. Some of the sub-sections deal with partial partition and are not relevant for the purpose of this case since we are dealing with the case of a complete partition.

4. Learned counsel for the Revenue contended that if there is only one male member in the HUF, the female member of the HUF cannot claim partition and relied on decisions of the Rajasthan High Court in Dalichand Tejraj vs. CIT, Jaipur, 97 ITR 383, of the Madras High Court in BBC Natra-jan vs. CIT, 111 IT ft 539, of the Gujarat High Court in CIT vs. Shantikamar Jagabhai, 105 ITR 795. On behalf of the assessee reliance is placed on the decisions of the Punjab & Haryana High Court in CIT vs. Narain Daw Wadhwa, 123 ITR 281 and Ram Narain Paliwal vs. CIT, 162IIR 539.

5. A joint Hindu family consists of ail persons lineally descended from a common ancestor and includes their wives and unmarried daughters. It may consist of a single member and widows of deceased male members or unmarried daughters. The property of a joint family does not cease to be joint family property merely because the family is represented by a single male member who possesses rights which an absolute owner of property may possess or by