Judgement FACTS : - Charandas Haridas (assessee) was a Hindu undivided family, consisting of Charandas, the karta and his three minor sons, Anil Kumar, Rameshchandra and Gautamkumar and his wife, Shantagouri. The assessee had a share in six managing agency firms and the income arising to the assessee from the agency firms was being assessed as the income of the assessee. In the course of the assessment proceedings for the assessment year 1947-48 and 1948-1949, the assessee contended that a partial partition had taken place in respect of this asset and that, therefore, the share income from the managing agency firms had ceased to be the income of the assessee as from 1-1-1946. In support of this claim a memorandum dated 11-9-1946, signed by Charandas and his wife was produced before the Income-tax Officer. The memorandum was in the following terms: "We the undersigned Seth Charandas Haridas by himself and as the guardian of minors Rameshchandra Charandas, Anilkumar Charandas and Gautamkumar Charandas and Shantaben Charandas all residing in Shahibaug, Ahmedabad make this memorandum (Nodh) that, we have a Hindu undivided family and Seth Charandas Haridas manages our familys joint property as Karta or Manager and all of us as members of the joint undivided family are entitled to our joint undivided family as Malik. Our family received a commission of Re. 0-1-11 5/12 from Vijay Mills Co. Ltd. and out of this commission Seth Charandas Haridas as Karta or Manager of the family has given already a commission of one pie to Pratima, the daughter of the family. So also out of the commission of Re. 0-2-½ received by the family from the Gopal Mills Co. Ltd. Seth Charandas Haridas as Karta and Manager has given already to Pratima one pie commission. After deducting these Re. 0-1-105/12 and Re. 0-1-111/2 commission remained. These commissions and other commission received from various other mills have been partitioned orally by us on Samvat 2002 Magsar Vadi 12 dated 31-12-1945. By this partition we decided that whatever commission fell due till 31-12-1945, and which is received after 31-12-1945 should be kept joint and in respect of the commission which accrues from 1-1-1946, and received after that date each of us become absolute owner of his one-fifth share and therefore from that date i.e. 1-1-1946, these commissions cease to be the joint property of our family. But it is our desire that we should keep a memorandum for our memory of the oral partial partition effected on Samvat 2002 Magsar Vadi 12 dated 31-12-1945, pursuant to which we have partitioned the commissions to be received by our family. Because of this we keep this note. Pursuant to the oral partition effected on 31-12-1945, each of us has become absolute owner from 1-1-1946, of the commission mentioned below: A. Our commission of Re. 0-1-10 5/12 of the Vijay Mills Co. Ltd. B. Our commission of Re. 0-1-11½ of the Gopal Mills Co. Ltd. C. Our commission of Re. 0-0-2 5/8 at the rate of twelve annas in a rupee to be received from the Maneklal Harilal Mills Co. Ltd. of Ahmedabad. D. The commission of Re. 0-0-4 17/24 received by us from the Harivallabhdas Mulchand Mills Co. Ltd. of Ahmedabad. E. The commission of Re. 0-0-51/12 and 0-0-3/8 received by us from the Baroda Spg. and Wvg, Co. Ltd. of Baroda and the Chhotalal Mills Co. Ltd. of Kalol respectively in the above commission each of us has become absolute owner from 1-1-1946. Out of the above commission which stands in the name of Charandas Haridas in the records of the Vijay Mills Co. Ltd. and the Gopal Mills Co. Ltd. after deducting the part of the commission given to Pratima as per particulars mentioned above, whatever commission is received by Charandas Haridas is to be given over to all of us according to our share. Also in the case of the commission standing in the name of Seth Haridas Achratlal in other remaining limited companies and in which the share of our family is ascertained in the name of Seth Charandas Haridas as and when the same is received by Seth Charandas Haridas he has to pay to each of us according to the share of each. It is further provided that our joint family is continued and our joint family property both moveable and immoveable except the commission aforesaid is kept joint." The Income-tax Officer refused to accept the genuineness of the claims and his decision was upheld by the Appellate Assistant Commissioner, who in his order, observed as follows: "It seems to me clear that this document, assuming that it is genuine, only deals with the destination of income after it has accrued and is received. It does not make members of the family partners in those firms in their individual rights in place of the Hindu undivided family." On appeal, the Appellate Tribunal, dismissed the appeal. The following question was referred to the High Court: "Whether there were materials to justify the finding of the Tribunal that the income in the share in the commission agency of the mills was the income of the Hindu united family?" CHAGLA, C.J.:- Although the reference has been very elaborately argued it really raises a very short and simple question. It is merely a question of fact, and the question turns upon whether there were materials before the Tribunal upon which the finding of fact was arrived at, and the fact in question is whether the income in the share of the commission agency of certain mills was the income of a Hindu joint family or the income of the coparceners constituting the family. 2. Now, the assessee is a Hindu undivided family and this Hindu undivided family was receiving a share in the managing agency commission of various companies which were managed by a partnership firm, and in this partnership firm the joint Hindu family had a share, and the joint Hindu family was represented in the partnership by Charandas Haridas as the karta. What was contended before the department was that by a memorandum executed by the coparceners a partial partition of the assets of the joint Hindu family was brought about and the asset that was partitioned was the income received from the managing agency commission, and after this partial partition the income was no longer the property of the joint Hindu family but became divided in the hands of the coparceners and was the specific income of each coparcener. 3. Now, in order to decide this question, we must first look at and consider the document which was relied upon by the assessee. This document is described as the partial partition of the Hindu undivided family of Charandas Haridas of Ahmedabad. This document recites that the joint Hindu family received a commission of Re. 0-1-11 5/12 from the Vijaya Mills Co. Ltd. and out of this commission Sheth Charandas Haridas had given a certain share to his daughter Pratima. The family also received Re. 0-2-½ commission from the Gopal Mills Co. This document recites that the joint Hindu family received a commission of Re. 0-1-11 5/12 from the Vijaya Mills Co. Ltd. and out of this commission Sheth Charandas Haridas had given a certain share to his daughter Pratima. The family also received Re. 0-2-½ commission from the Gopal Mills Co. Ltd. and Charandas Haridas had given one pie commission out of this to his daughter. After deducting these Re. 0-1-105/12, and Re. 0-1-11½ commission remained, and other document recites that these commissions and other commissions received from various other mills have been partitioned orally by them on Samvat 2002 Magsar Vadi 12 dated 31-12-1945. Then the document states the effect of this partition and the signatories state that: "We have decided that whatever commission fell due till 31-12-1945 and which is received after 31-12-1945 should be kept joint and in respect of the commission which accrues from 1-1-1946 and received after that date each of us become absolute owner of his one-fifth share and therefore from that date, i.e. from 1-1-1946, these commissions cease to be the joint property of our family." Then the document ends by stating. "Whatever commission is received by Charandas Haridas is to be given over to all of us according to our share. Also in the case of commission standing in the name of Sheth Haridas Acharatlal in other remaining limited companies and in which the share of our family is ascertained in the name of Sheth Charandas Haridas as and when the same is received by Sheth Charandas Haridas he has to pay to each of us according to the share of each." 4. Now, on this document Mr. Palkhivala contends that there was a partial partition of an asset belonging to the joint Hindu family and after this partial partition the income resulting from this asset was no longer the income of individual coparceners comprising the family. It is well established in Hindu law that a joint Hindu family without severing its status may by agreement partition some of the assets belonging to that family. Quae those assets the coparceners would become tenants-in-common. The status of the joint Hindu family would continue, and quae the property not partitioned the coparceners would be joint tenants and not tenants-in-common. Therefore, Mr. Quae those assets the coparceners would become tenants-in-common. The status of the joint Hindu family would continue, and quae the property not partitioned the coparceners would be joint tenants and not tenants-in-common. Therefore, Mr. Palkhivala is right when he contends that there is nothing in Hindu law to prevent coparceners from partitioning one or more assets belonging to the family without necessarily bringing about a severance of status. But the question is whether such a partial partition is brought about by this document. 5. It is clear that the partial partition contemplated by Hindu law is a partition which brings about a change in the nature of ownership and not a partition which brings about a change in the mode of enjoyment. If the nature of ownership is not changed, the mere fact that the coparceners decided to enjoy the produce from a particular asset in a particular way will not bring about a partition. Take this very case. The asset which belongs to the joint Hindu family is not the commission, it is the share in the partnership which share results in this commission. If the members of the joint family agree to change the nature of the ownership of that share, then undoubtedly there would be a partial partition quae that share. But, on the other hand, the members of the joint family may agree without interfering with the nature of the ownership to provide for a particular mode of enjoyment of the income arising from that share, and if the coparceners were to say that when the income comes in from this particular asset we will enjoy that income in a particular manner or share it in a particular manner, there is no partial partition, because the asset continues to remain, as it was before, of the ownership of the joint Hindu family. 6. Now, in this case the signatories to the document emphasise the fact that what they are dividing, what they are dealing with, is the commission, not the share which produces this commission, and in the last paragraph of the agreement to which attention has been drawn it is expressly stated that Sheth Charandas Haridas has to pay to each of the coparceners according to his share as and when the commission is received. Therefore we read this document not as recording a partition of an asset belonging to the joint Hindu Family but a document providing for the distribution of the income after it has accrued to the family and has been received by the joint family. It should also be borne in mind, and it is not disputed, that Charandas Haridas was a partner in the managing agency firms on behalf of the joint Hindu family. He represented the joint Hindu family. He received the share in the managing agency commission not in his individual right but as representing the family. The partnership agreement also provided that although a partner in the firm can have sub-partners in respect of his share in the firm, the sub-partners will not be recognised as partners in that firm and the person in whose name the share stands in the firm will alone be recognised as the owner of and be liable in respect of the said share in the firm. 7. Now, it is urged by Mr. Palkhivala that it is not possible in Hindu law for coparceners to divide the income arising from an asset or the produce of an asset without necessarily dividing the asset. Mr. Palkhivala says that it is a well established rule of Hindu law that no member of a joint Hindu family can predicate while the family remains joint of any particular asset of the family that he has a specific share in that asset; and according to Mr. Palkhivala the income being also an asset of the joint Hindu family once the shares have been made specific and once a coparcener can predicate that he has a specific share in that income, there is a partial partition not only of the income but also of the asset which produces that income. This contention was specifically urged before the Privy Council and the Privy Council has considered this contention in two cases and emphatically negatived it. 8. The first decision is in - Sonatun Bysack v. Sm. Juggutsoondree Dossee, 8 Moo Ind App 66 (PC) (A). In that case a Hindu by his will gave his property to his four sons and provided for a particular mode of devolution depending upon whether the sons remained joint or separate. 8. The first decision is in - Sonatun Bysack v. Sm. Juggutsoondree Dossee, 8 Moo Ind App 66 (PC) (A). In that case a Hindu by his will gave his property to his four sons and provided for a particular mode of devolution depending upon whether the sons remained joint or separate. The sons divided the income of the property and the question arose whether by reason of this division there was a division of the property itself. At p. 86 their Lordships say- "...There has been no division at all of this family, unless the division of the income during the few years which followed upon the death of the Testator up to a short period after the death of Hurrymohun Bysack constituted a division of the family, and their Lordships are very clearly of opinion, that the mere division of income, for the convenience probably of the different members of the family, did not amount to the division of the family." Therefore this is a clear expression of opinion that you may have a division of the income of the family for convenience or otherwise without necessarily resulting in a division of the property which produces the income. Undoubtedly, Mr. Palkhivala is right that you may have a case where the parties may by dividing the income intend to divide the asset which produces that income. But in order to arrive at that conclusion there must be some other circumstances present than the mere division of the income. The contention of Mr. Palkhivala which is unacceptable is that the mere division of income must inevitably result in a partition of the property which produces the income. 9. Mr. Palkhivala has then relied on a later judgment of the Privy Council reported in - Appovier v. Rama Subba Aiyan, 11 Moo Ind App 75 (PC) (B). In that case their Lordships of the Privy Council were considering a partition deed which partitioned various villages belonging to the family. With regard to certain villages only the income was divided, and the Privy Council considering this part of the partition deed expressed the opinion (p.92): "... Nothing can express more definitely a conversion of the tenancy, and with that conversion change of the status of the family quoad this property. With regard to certain villages only the income was divided, and the Privy Council considering this part of the partition deed expressed the opinion (p.92): "... Nothing can express more definitely a conversion of the tenancy, and with that conversion change of the status of the family quoad this property. The produce is no longer to be brought to the common chest, as representing the income of an undivided property, but the proceeds are to be enjoyed in six distinct equal shares by the members of the family, who are thenceforth to become entitled to those definite shares." Mr. Palkhivala wants us to apply the same test here and he says that once the income does not go to the common chest there is a conversion of the tenancy quae the property which produces the income, and the property from being joint tenancy becomes tenancy-in-common. But in basing this argument Mr. Palkhivala overlooks what the nature of the document before the Privy Council was, and the Privy Council points out at p.91 that there may be a two-fold application of the word "division." There may be a division of right, and there may be a division of property; and thus, after the execution of this instrument, there was a division of right in the whole property, although, in some portions, that division of right was not intended to be followed up by an actual partition by metes and bounds, that being postponed till some future time when it would be convenient to make that partition. Therefore, the view that the Privy Council took of that document was that there was a partition of all the property with regard to the right to that property, but with regard to the actual physical partition as far as some villages were concerned. that was postponed, and while that was postponed the income was to be divided between the coparceners. On these facts the Privy Council came to the conclusion that even with regard to those villages where merely the income was divided there was a partition. Now, surely that is not the case here. As we have already pointed out there is nothing in the document which suggests that the parties intended to partition the right to property. On these facts the Privy Council came to the conclusion that even with regard to those villages where merely the income was divided there was a partition. Now, surely that is not the case here. As we have already pointed out there is nothing in the document which suggests that the parties intended to partition the right to property. All that they intended to partition - perhaps the better expression is to divide and distribute - was the commission, the income arising out of the property, and as the earlier Privy Council case points out, the mere change in the mode of enjoyment or the mere distribution or division of income for the purpose of convenience or otherwise does not result in the partition of the asset which yields the income or the produce. 10. Going back again to the question which we have to answer on this reference, we have to be satisfied that there were materials which would justify the Tribunal in coming to the conclusion that it did. In the first place, there is this document itself which has been construed by the Tribunal, and in our opinion rightly construed. The Tribunal also states in the statement of the case that the Tribunal doubted the genuineness of the memorandum. Perhaps Mr. Palkhivala is right that it is not open to the Tribunal to give a finding which it did not give in the oder itself. Although in the order they have called this transaction a farce, it seems that that expression is used not as indicating that the document was not a genuine document but as indicating that the document did not bring about the necessary result which was intended by the framers of that document. The Tribunal has also relied on the fact that although this memorandum was executed on 11-9-1946, the partition having taken place on 1-1-1946, it was only in April 1948 that separate returns were filed in the name of the coparceners. Now, Mr. Palkhivala says that inasmuch as no returns were made after 1946 this factor is not of much importance. The Tribunal has also relied on the fact that although this memorandum was executed on 11-9-1946, the partition having taken place on 1-1-1946, it was only in April 1948 that separate returns were filed in the name of the coparceners. Now, Mr. Palkhivala says that inasmuch as no returns were made after 1946 this factor is not of much importance. But whether it is of importance or not, it is a factor which the Tribunal has taken into consideration in adjudicating upon the question of the partition of the joint family assets, and this factor has weighed with the Tribunal in the view that it took that this particular asset continued to be the asset of the joint Hindu family. In our opinion there were materials before the Tribunal to justify the conclusion it came to. 11. The result is that we must answer the question submitted to us in the affirmative. The assessee to pay the costs. Answer in affirmative.