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Smt. Bhawribai vs Gift-Tax Officer on 24 July, 1982 cites

Sukhram & Another vs Gauri Shankar & Anr on 11 September, 1967

7. The argument, however, is that in the absence of a partition, a member of the HUF cannot claim to be in possession of his share in the property. This argument is totally devoid of any merit, as not only every member of HUF can claim to be in possession of the HUF property, he also has a right of alienation of his undivided interest in the said property. The right of alienation clearly shows that the transferor had not only a title but also possession thereof, though the purchaser of that undivided interest would have to file a suit for partition to get his share demarcated. The Supreme Court decision in Sukhram's case (supra) cited by the learned Commissioner (Appeals) is a clear answer to the contentions urged on behalf of the assessee. In that case, the deceased had died in 1952, leaving a widow, a brother and the brother's son, who constituted the members of the HUF. The right which the widow got in 1956 was the same as the assessee had got in 1949, on the death of her husband, in the property of the HUF. After the Hindu Succession Act came into force, the widow sold half her share in the house belonging to the joint family. Her deceased husband's brother and his son challenged the same, but it was held that the widow having become the full owner of her husband's interest was competent to effect the same. The learned counsel contends that the question of possession was not argued before the Supreme Court in that case. In our opinion, that is totally immaterial, since the widow could only sell her share in the property on the premise that under Section 14(1) of the Hindu Succession Act, she had become the full owner of the property on the coming into force of the Hindu Succession Act, because she was in possession thereof. The facts of that case and in the case before us are, thus, entirely similar, except that in that case she sold the property and in this case she relinquished it. But, in fact, the assessee cannot claim that she had relinquished her interest in the property, though she was not a full owner thereof. Such a position would be entirely contradictory. The two Gujarat High Court decisions, relied on behalf of the assessee, are clearly distinguishable.
Supreme Court of India Cites 6 - Cited by 11 - J C Shah - Full Document
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