Daughter can be karta of a HUF: Delhi High Court [Read Judgment]

In the matter of MANU GUPTA vs SUJATA SHARMA & ORS, the honorable Delhi High Court has held that women can be Karta (Head) of the Hindu Undivided Family (HUF).

The Bench observed that “Men and women historically were born equal. However, over a period of time, with the advancement of civilization and hierarchical division of society, women have been pigeonholed according to gender roles which progressed into an act of prelation that has relegated them to a secondary position in society. Consequently, the once egalitarian society became a breeding ground for chauvinism and discrimination in the form of Sati, Child Marriage, Sexual Harassment, Domestic Violence, Dowry Harassment and such like disparages. Legislature has time and again, brought forth reforms to overcome this bigotry and free women from the shackles of such specious fetters devised by mankind thereby enabling her to achieve her full potential and march shoulder to shoulder with men.”

The Court quoted the Amendment of 2005 to the Hindu Succession Act, 1956 which has conferred coparcenary rights to the women, equivalent to that of men, which is a quintessence of another reform in law relating to women empowerment. However, the unwavering certitude in marginalisation of women, so deeply entrenched in Society, is perceived to be imperilled by the prospect of a woman taking the position of Karta in an HUF, a role that was traditionally assumed by men.

Relevant Text of the Judgement:

ISSUE NO. 7:-

“Assuming existence of D.R. Gupta and Sons HUF, whether the plaintiff is a coparcener of and legally entitled to be the Karta?”(OPP)

105. It is the case of the respondent Nos. 9 and 10 that respondent No. 1 was not the daughter of a surviving Coparcener when the Amendment Act of 2006 came into force as her father has expired before the commencement of the Amendment Act of 2005.

106. According to the finding in Prakash and Ors. vs. Phulvati (supra), living daughters of living Coparceners as on 09.09.2005 are entitled to the rights under the substituted Section 6, regardless of when such daughters are born. Howbeit, a three-Judge Bench of the Apex Court in the land mark case of Vineeta Sharma (supra) concluded that the Court in Prakash and Ors. (supra) did not bring attention to the issue of how a coparcenary is formed. It is not required for a previous Coparcener to be alive in order to form a coparcenary or to become a coparcener; what matters is birth within the degrees of the coparcenary to which it extends. The mode of succession, not the process of forming a coparcenary, is one of survival.

107. The Apex Court thus, clarified the rights of a daughter as a Coparcener under the amended Section 6 of the Act, 1956 and concluded that it is not necessary that the father of the daughter should be alive on the date of the amendment.

108. The Apex Court in Vineeta Sharma (supra) further observed that the amended provision of Section 6(1) of the Act, 1956 provides that on and from the date of Amendment, the daughter is conferred the right of coparcenary „in her own right‟ and „in the same manner as a son‟. The right of Coparcener is by birth, and the rights are given in the same manner with the incidents of coparcenary as that of a son. Hence, as this right is acquired by way of birth, the same is unobstructive in nature as long as the birth is within the degrees of coparcenary. It is thus, irrelevant that a coparcener whose daughter is conferred with the rights is alive or not as the right to be a Coparcener is independent of the existence of the father, making respondent No.1 the eldest surviving Coparcener.

109. Thus, the right of the daughter of a Coparcener to enjoy the status of a Coparcener from the commencement of the Hindu Succession (Amendment) Act, 2005 cannot hinge upon the life span of her father. Such a distinction can certainly not sustain the test of intelligible differentia that was sought to be addressed through the Amendment.

110. The same contention was initially raised by the appellant as well, however, it was withdrawn by conceding to the coparcenary right of a woman in light of the holding in Vineeta Sharma (supra).

111. We thus, agree with the observations of learned Single Judge that merely because father of respondent No.1 had died before the introduction of the Amendment Act, 2005 her right to be a Karta is not lost.

ISSUE NO. 3:–

“Whether there exists any coparcenary property or HUF at all? OPP”

ISSUE NO. 5

“Whether the interest of the plaintiff separated upon the demise of her father Sh. K.M. Gupta in 1984?” (OPD)

112. The learned Single Judge had referred to a Family Settlement dated 01.04.1999 Ex PW1/5 to observe that respondent No. 1 was a party to the said Family Settlement of 1999 as she was an acknowledged Coparcener being the daughter of Kishan Mohan Gupta, to conclude this issue in favour of respondent No.1.

113. While respondent No. 1, as a matter of right would be a Coparcener by birth, this right hinges upon the existence and continuance of the D.R. Gupta HUF when the Amendment Act of 2005 came into effect. The proviso to Section 6(1) of the Act lucidly provides that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

114. The Appellant assails and challenges the coparcenary right of respondent No. 1 in light of her Written Statement in another Suit (Partition Suit CS(OS) 142/2008 filed by respondent Nos. 9 and 10) where it was asserted by her that the suit property had already been partitioned in 1999. Thus, respondent No.1 cannot claim to be a Karta when the coparcenary itself has ceased to exist.

115. Admittedly, Shri D.R. Gupta, the common ancestor of all the parties to the Suit, had constituted a “D.R. Gupta & Sons HUF” on 05.01.1963 of which his five sons were the Coparceners. Shri D.R. Gupta had drawn both moveable and immoveable properties into a common hotchpotch to be owned by the HUF. The HUF was assessed to Income Tax and was allotted PAN No. AAA HD 4230 M. Further, it is not in dispute that all the sons of Shri D.R. Gupta had expired, the last being Shri R.N. Gupta who expired on 14.02.2006.

116. The essential question is whether the HUF stood dissolved upon the demise of Shri D.R. Gupta on 02.09.1977 or continued even after the demise of his five sons.

117. The appellant DW1/Manu Gupta had deposed that “D.R. Gupta & Sons HUF” ceased to exist in the year 1971 on the demise of Shri D.R. Gupta and thus, the question of anyone being the Karta of this HUF does not survive. PW3/N.V. Satyanarayan, Defence Estate Officer, Delhi Circle, Delhi produced the copy of the Letter dated 01.06.1985 Ex. PW3/A addressed to Smt. Shanta K Mohan, wife of Shri Krishan Mohan (father of the respondent No. 1), in regard to the mutation of the suit property. The said letter is reproduced as under:-

“ No: 3/220-F/III/180
DEFENCE ESTATES OFFICE, DELHI CIRCLE, DELHI CANTONMENT DATED 01, Jun, 1985.

To
Mrs. Shanta K. Mohan W/O Late Shri Krishan Mohan
18, Anand Lok, NEW DELHI.

SUBJECT : MITIGATION IN THE NAME OF SUCCESSOR OF LATE Shri Krishan Mohan (Karta) (HUF).

In r/o No. 4, University Road, Delhi.

Reference your affidavit dated 13.8.1984 received in this office on 24th August, 1984 under your letter dated 16/21.8.1984.

2. It is to inform you that necessary entries an requested under your letter cited above have been effected in the record of this office as successors of Late Shri Krishan Mohan.

(i) ShrimatiShanta K. Mohan
(ii) Smt. SuzataSharma
(iii) Smt. Radhika Seth

3. This is for your information and record.

Sd/-
DEFENCE ESTATES OFFICER, DELHI CIRCLE.
(A.P. SINGH)”

118. It is evident from the bare perusal of the aforesaid Letter that Smt. Shanta K. Mohan, Smt. Sujata Sharma and Smt. Radhika Seth, the legal heirs of Late Krishan Mohan Gupta in terms of their Affidavit dated 13.08.1984, were added as the owners and the property was mutated in the joint name of aforesaid three legal heirs of Late Shri Krishan Mohan Gupta. The Mutation Letter dated 01.06.1985 Ex PW3/A shows that the two daughters of Late Shri Krishan Mohan Gupta had also been entered in the records as joint owners. This was neither necessary nor permissible as in 1971 daughters were not recognised as Coparceners. Had the HUF been continuing after the demise of Late Shri D.R. Gupta on 01.10.1971, such inclusion of daughters in the mutation would have never taken place.

119. The second document of relevance is Letter dated 05.08.2003 Ex. PW3/B produced by PW3 addressed to Shri R.N. Gupta (Karta of the HUF then) by the Defence Estates Office which also deals with mutation of the suit property in the name of legal heirs of late Shri J.N Gupta, Late Shri B.N. Gupta and Late Shri M.N. Gupta. The letter declared all the legal heirs as stated above as joint owners of the suit property through its Karta, Late Shri R.N. Gupta.

120. The aforesaid two documents reveal that all the respective legal heirs of the four deceased brothers had been individually and separately entered in the records as joint owners. Though the property was declared as HUF property, but all the legal heirs, including the girls were made joint owners. Had there been an HUF continuing after the demise of Late Shri D.R. Gupta, the property need not have been mutated in the name of daughters as they were not Coparceners according to the law existing then. The very fact that all the legal heirs from time to time have been recorded as joint owners on demise of their father in the mutation records of the suit property, leads to an inference that there was no HUF that continued after the demise of Late Shri D.R. Gupta and the properties of the HUF became the joint property of the legal heirs of Shri. D.R. Gupta.

121. Respondent No. 1 Sujata Sharma has asserted that a partial partition of moveable assets took place on 26.03.1977 in respect of deposits and shares in Motor and General Finance Limited. There is no denial that pursuant to this partial partition, each coparcener became entitled to receive from the HUF, a sum of Rs. 28,000/- from the deposits of Motor and General Finance Limited held by HUF and further each was to get 1000 equity shares of the Motor General and Finance Limited as their respective share while the other properties continued to remain in the HUF. The Notice of Partial Partition as required under Section 171 of the Income Tax Act, 1961 was also agreed to be sent.

122. Another significant fact which was stated and which essentially has not been disputed by all the parties, except Smt. Meera Sawhney and Smt. Gargi Gupta (respondent Nos. 9 and 10 who are the two legal heirs of Late Shri B.N. Gupta), is a Family Settlement of 01.04.1999 Ex.PW1/5 which admittedly has the signatures of four sons of the deceased Shri D.R. Gupta (Shri M.N. Gupta, Shri R.N. Gupta, Shri B.N. Gupta, Shri J.N. Gupta) and of respondent No. 1/Sujata Sharma, her sister Smt. Radhika Seth and their mother, Smt. Shanta K. Mohan being the legal heirs of late Shri Krishan Mohan (son of Shri D.R. Gupta) who had died on 18.02.1984.

123. According to this Memorandum of Family Settlement, an oral partition had taken place between all the parties on 18.01.1999 and the same was recorded in the Memorandum of Settlement dated 01.04.1999. In the said Memorandum, it was clearly stipulated as under: –

“2. The parties hereto confirm and declare that the oral family settlement dated 18.1.1999 was arrived at on the following terms.

2.1 The parties acknowledge and confirmed that that the parties hereto are the members of the Hindu Undivided Family D.R. Gupta & Sons (HUF) and each having share in the movable and immovable properties presently owned by the Hindu Undivided Family as under:

a) Shri Krishan Mohan Gupta (the eldest son of late Shri D.R. Gupta, who died on 17th Feb. 1984 and is survived by his wife Smt. Shanta K Mohan and Mrs. Sujata Sharma & Mrs. Radhika Seth, daughter, heirs to the party of the “First Party” 1/5th share.

b) Shri Mahendra Nath Gupta as Karta (party of the “Second Part) 1/5th share.

c) Mr. Ravinder Nath Gupta (party of the Third”) 1/5th share.

d) Shri Bhupinder Nath Gupta (party of the “Fourth”) 1/5th share.

e) Mr. Jitender Nath Gupta (party of the “Fifth Part”) 1/5th share.

2.2 The parties acknowledge and confirm that the Hindu Undivided Family owns and possesses the following movable and immovable properties.

a) Bunglow No. 4 University Road, Delhi

b) Share of Motor & General Finance Ltd. (4309Share)

c) Bank account of Hindu Undivided Family D.R. Gupta & Sons (HUF) with Bank of India. Asaf Ali Road, New Delhi.

d) Bank account with Vijiya Bank, Ansari Road, New Delhi

e) Deposit with the Motor & General Finance Ltd. of Rs. 6,400/-.

2.3 The parties effected partition of Hindu Undivided Family D.r. Gupta & Sons (HUF) and that the parties hereto being the members of the said Hindu Undivided Family were entitled to and were owners of the movable and immovable properties of the said Hindu Undivided Family mentioned in para 2.2 above to the extent as under:

a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta, who died on 17th Feb. 1984) and is survived by his wife Smt. Shanta K Mohan and Mrs. Sujata Sharma & Mrs. Radhika Seth, daughter, heirs to the party of the “First Part”. 1/5th Share.

b) Shri Mahendra Nath Gupta (as karta of the “Second Party”). 1/5th Share.

c) Mr. Ravinder Nath Gupta (party of the “Third Part”). 1/5th Share.

d) Mr. Bhupinder Nath Gupta (Party of the “Fourth Part”). 1/5th Share.

e) Mr. Jitender Nath Gupta (Party of the “Fifth Part”). 1/5th Share.

7. No one party or parties hereto shall be entitled to bind the other parties hereto by his acts or deed with respect to the affairs of the said business.

8. It has been further agreed between the parties that the immovable property No. 4 University Road, Delhi, after the partition, if any, of the HUF, and recording of this family settlement, will continue to remain in the name of D.R. Gupta & Sons, HUF before the Revenue Authority/competent Authority.”

124. As is already discussed in detail, all the family members have admitted this document of Memorandum of Settlement dated 01.04.1999 Ex. PW1/5. Pertinently, even respondent Nos. 9 and 10 have not disputed the execution of the document in this Suit, but only assail its validity.

125. It is the appellant‟s assertion that respondent No. 1 has taken contradictory stance with respect of the existence of the HUF. However, we find that respondent No.1, in her Written Statement in CS(OS) 142/2008 has merely averred that a partition of the HUF by determining the share of each branch took place prior to the Amendment Act of 2005 and thus, such a prior partition cannot be reopened. This statement is nothing but in conformity with the Hindu Succession (Amendment) Act, 2005 which came into effect on 09.09.2005. Section 6 (5) of the Amended Act, perspicuously explains that the provision will be inapplicable in cases where a partition had been effected before 20.12.2004.

126. It has emerged from the evidence of the parties that the HUF continued only for the purpose of dealing with the Revenue Authority/Competent Authority. The relevant portion of the said Written Statement reads as under: –

“6. …However as per the Partition, the parties agreed that the Immovable property 4, University Road, Delhi will continue to remain in the name of D.R. Gupta & Sons HUF before the Revenue Authority/Competent Authority.”

127. With respect to the Family Settlement, respondent No. 1 as PW1 had deposed as under:-

“Q. 25. How is the Family Settlement dated 1.4.1999 refer to in your affidavit in evidence as Exhibit PW 1/5 (to which there is an objection as to mode of proof) relevant to the question of Karta?

A. I have brought the original of Exhibit PW1/5 (shown to the Commissioner and returned). This document is of partition of HUF. It is a family settlement. It gives a share of all the families and we have to deal with certain authorities such as Defence Estates and other authorities for which we require a Karta. This is the evidence.”

128. The appellant as DW1 also made certain significant admissions. On being asked who was the Karta of Late Shri D.R. Gupta, HUF after the death of Late Shri D.R. Gupta, he replied that it was Shri Krishan Mohan Gupta. He also clarified that “after the death of Shri Krishan Mohan Gupta, there was no Karta as such but for the Military Defence Estate Office, the information regarding the passing away of Mr. Krishan Mohan Gupta was given by Mahender Nath Gupta, holding himself to be the Karta of HUF. After Mr. Mahender Nath Gupta, there was no Karta as such but for the Military Defence Estate Office, the information regarding the passing away of Mahender Nath Gupta, was given by Mr. Ravinder Nath Gupta”.

129. DW1/Manu Gupta (appellant herein) thereafter deposed that earlier Income Tax Returns were being filed, but the same have not been filed now for the last many years. On being asked specifically if he was a Coparcener of “D.R. Gupta & Sons HUF”, DW1 stated that “assuming the HUF exists, I am Coparcener otherwise I am member of the Joint Family”.

130. DW1/Manu Gupta further deposed that like the members before him who informed the Defence Estate Office about the passing away of previous Karta to the Estate Office as the Karta of the family, he also informed the said Office. He even informed the Motor and General Finance Limited Company where the HUF holds some shares to change the name of the authorised signatory from that of Mr. R.N. Gupta to his name.

131. DW1/Manu Gupta also deposed that the House Tax for the suit property was paid upto 2007, but he was not aware thereafter. The system of paying the house tax was that all the five branches of the family used to share equal payment of house tax.

132. From these significant admissions of the appellant/DW1 coupled with the letters produced by PW3/ N.V. Satyanarayan, Defence Estate Officer in regard to the mutation of the property in the name of all the legal heirs of respective sons of Late Shri D.R. Gupta, the irresistible conclusion that can be drawn is that “D.R. Gupta & Sons HUF” came to an end on the demise of Shri D.R. Gupta and all his sons as five branches became equally entitled to their respective share and consequently, all were mutated as the owners of the suit property. Thus, no HUF was continued after 1977, but the senior most male member was representing himself for and on behalf of all the owners by reflecting himself as a Karta of “D.R. Gupta & Sons HUF”, merely for the purpose of nomenclature and as the authorised representative of all the family members.

133. Now, coming to the Memorandum of Settlement dated 01.04.1999 Ex. PW1/5, all the parties have admitted to the execution of this document, though they have interpreted it differently and have raised contradictory claims.

134. First and foremost, it is stated in the Memorandum of Settlement that an oral partition took place on 18.01.1999. The validity of an oral partition has been recognised in the case of Kale vs. Director of Consolidation 118 (1976) 3 SCC 119, the Hon‟ble Apex Court explained how the family settlement is effected which reads as under: –

“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made **under the document** and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

135. The second aspect is the registration of the Memorandum of Settlement dated 01.04.1999 which recorded the Oral Settlement dated 18.01.1999. In Teg Bahadur Bhujil vs. Debi Singh Bhujil AIR 1966 SC 292, the Hon‟ble Supreme Court observed that a family arrangement can also be arrived at orally and registration would not be required only if its terms may be recorded in writing as a memorandum of what has been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there is no hazy notion about it in future.

136. In Kalwa Devadattam vs. Union of India AIR 1994 SC 880, while endorsing that an oral partition was permissible, the Hon‟ble Apex Court observed that the burden of proof remained on the person who asserted such partition. The separate occupation of portions, division of the income of the joint property, defining of shares of the joint property in the revenue or land registration records, mutual transactions could be the factors which may become significant to prove an oral agreement as observed in Bhagwani Kunwar vs. Mohan Singh AIR 1925 PC 132 and Digambar Adhar Patil vs. Devram Girdhar Patil AIR 1995 SC 1728.

137. It is also pertinent to note that the Memorandum of Family Settlement was only signed by the first stirpe of the coparcenary and not by all its coparceners at that point in time. Under Hindu Law, though all the Coparceners have an undivided share in the properties belonging to the HUF, however, this principle of undivided ownership of each coparcener is not applied when the members of the HUF decide to effect a partition. The Madras High Court in A.M. Narayana Sah vs. A. Sankar Sah 1929 SCC OnLine Mad 53 referred to Mayne on Hindu Law, Page 346, Paragraph 270, which reads as under: –

“It is common to say that in an undivided family each member transmits to his issue his own share in the joint property, and that such issue takes per capita inter se, but per stirpes as regards the issue of other members. But it must always be remembered that this is only a statement of what would be their rights on a partition. Until a partition all their rights consist merely in a common enjoyment of the common property, to which is further added the right of male issue to forbid alienations, made by their direct ancestors”

138. Thus, when the partition of an HUF takes place, the shares are divided amongst each branch of the HUF. However, this division amongst branches does not lead to the creation of a separate coparcenary in each branch; rather the share so allotted to a branch is equally divided amongst all its leaves (members).

139. In the present case, the shares in the Family Settlement of 1999 has been determined as 1/5 per stirpe (which included the legal heirs of Late Shri K.M. Gupta, Shri M.N. Gupta, R.N. Gupta, Shri J.N. Gupta), thus constituting a division of their respective shares as per Hindu Law.

140. In this context, the decision of the Privy Council in Appovier vs. Rama Subba Aiyan 11 M.I.A. 75 (1866) described the manner in which severance of status of HUF may take place which reads as under: –

“According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can prejudice of the joint and undivided property, that he, that particular member, has a certain definite share. No individual of an undivided family could go to the place of the receipt of rent, and claim to take from the Collector or receiver of the rents, a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject- matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.

xxxx xxxx xxxx xxxx

Then, if there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. This may at any time be claimed by virtue of the separate right.”

141. Thus, in the present case, it is established there was no continuation of “D.R. Gupta & Sons HUF” after the demise of Shri D. R. Gupta in the year 1977 and the property got mutated in the name of all the legal heirs. In furtherance of such severance of status, the also parties determined the shares of each of the branch of the five brothers to be 1/5th as mentioned in the Memorandum of Settlement. Thus, even though no partition by metes and bounds took effect between the parties, a partition took place leading to severance of status of the undivided family into a divided family.

142. At this juncture, we may examine that an HUF that has albeit ceased to exist under the Hindu Law, but may continue to be so recorded as an HUF in the revenue or Income Tax records.

143. In Kalloomal Tapeswari Prasad (HUF), Kanpur vs. Commissioner of Income Tax, Kanpur (1982) 1 SCC 447, after referring to Appovier (supra), the Hon‟ble Apex Court concluded that Hindu law does not require that the property, must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement, or (3) by a suit or arbitration. It is open to the parties to enjoy their share of property as tenants-in-common in any manner known to law according to their desire. However, Income Tax law introduces certain conditions of its own to give effect to the partition under Section 171 of the Income Tax Act. Section 171 postulates that until a claim is made under Section 171(2) of the Income Tax Act that there has been a partition (total or partial) of the HUF, it continues to exist under the Income Tax records. Sub-Section 1 of Section 171 of the Income Tax Act contains a deeming fiction that provides that a Hindu family hitherto cease as undivided, shall be deemed for the purpose of the Income Tax Act to continue to be a Hindu Undivided Family, except where and insofar as a finding of partition has been recorded in respect of it under Section 171 of the Income Tax Act. Such finding of partition can be recorded only where the property admits to physical division which has taken place. Mere physical division of the income without a physical division of the property, cannot be treated as a partition.

144. Therefore, having concluded that the severance of status had taken place in the year 1977 and that a partition of the suit property which was till then in the nature of Joint Hindu property has also been effected by the parties vide Memorandum of Family Settlement dated 01.04.1999, but it has still not been partitioned by metes and bounds, but it would still continue to be assessed as a Hindu Undivided property in the Government records/Income Tax records and for that purpose one of the family members has to represent himself on behalf of an HUF. This is exactly what has been stated by the appellant in his testimony that it is only for the purpose of communication with the Government authorities that the suit property was being reflected in the name of “D.R. Gupta & Sons HUF”. Thus, the partition has already happened but the appellant had so communicated on behalf of HUF as it had to be represented before the Competent Authority till the partition actually takes place by metes and bounds.

145. Lastly, we observe that the position of Karta is a legal entitlement that has no bearings on the person who actually performs the managerial functions. In the present case, though there is no express delegation by respondent No.1 or other members on the appellant, the status of a Karta and his acts of performing managerial functions do not confer him with the title of Karta for the “D.R. Gupta & Sons HUF”.

Having held that the respondent No. 1 is entitled to be the Karta under law, she is hereby declared as Karta of D.R. Gupta and Sons, HUF.

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