Per Shri T.D. Sugla, President - The facts and the rival contentions in these two appeals by the different assessees are common. For the sake of convenience, both the appeals are disposed of together.

2. Shri Premchand and Shri Sardarilal, both the assessees herein, are sons of Shri Chaganlal and constituted a HUF (which will hereinafter, if necessary, be referred to as 'bigger HUF') until they executed a deed of partition on 17-11-1969 whereby the two branches represented by them separated and constituted smaller HUF's (hereinafter referred to as HUF's" only) comprising of: (1) Shri Premchand (self), Smt. Sushilabai (wife), Shri Narsing Prasad and Shri Poonamchand (sons), (2) Shri Sardarilal (self), Smt. Jankibai (wife) and Shri Parsuram (son).

The aforesaid HUF's have also undergone complete partition as per the deed of partition dated 27-10-1970. The partition has been not only between the father and son/sons but also with the wives inasmuch as they have also received their share in the HUF property at the time of the partition, i.e., equal to that of a son as per the shastric Hindu law. Both Shri Premchand and Shri Sardarilal are, it is common ground, residing with their respective wives despite the aforesaid complete partition.

3. The dispute is as regards the income from the property received by Shri Premchand and Shri Sardarilal in the aforesaid partitions. While the assessees' claim that the same is assessable as their separate income, i.e., in the status of individual, the ITO has completed the assessments in the status of HUF.

4. The proceedings herein are for the assessment year 1977-78 for which the previous year has ended on 23-10-1976. Following the Tribunal's order in the assessee's own case for the assessment year 1974-75, the AAC has confirmed the assessment in the status of HUF.

5. After hearing the parties, the Division Bench hearing the appeals felt that the earlier decision of the Tribunal (supra) required reconsideration and made a reference to the President for constituting a Special Bench. This is how these appeals have come to be heard by a Special Bench.

6. The parties have been heard at length. For the purpose of appreciating the rival contentions, it is desirable to refer to some well-known legal propositions which will have to be kept in mind, namely, (i) 'HUF' is a legal expression employed in taxation laws. It has a definite connotation and embodies the meaning ascribed to 'joint Hindu family' in Hindu law ; (ii) there is no presumption that a Hindu family merely because it is joint, possesses any joint family property ; (iii) though the units of assessment under the Income-tax Act are, say, individual, HUF and so on, the status is and can be determined only by analysing the nature of the rights of all persons enjoying or having some interest in the income which is the subject-matter of assessment ; (ii) separated members can, if at all, constitute a HUF only if they reunite as laid down in paragraphs 342 to 344 of Mulla's Hindu Law ; and (v) the effect of partition is to dissolve the coparcenary with the result that the separating members thenceforth hold their respective shares as separate property qua the separated members but if a separating member has other persons with him who have some interest in the property so received by him on partition, the property may retain the character of joint family property.

7. Moreover, the Income-tax Act recognises both total and partial parti- tion. The partition can be partial both as regards the property and as regards its members. This, to our mind, clearly shows that the status of the person enjoying the income from a property is to be determined qua that particular property. For instance, if some of the assets of the HUF are partially partitioned in the sense that the wife has not taken any share, the character of the property coming to the husband in such a case will remain joint family property as the wife will have interest in that property. On the o