ORDER U.N. Bhachawat, J. - This is a reference under Section 256(1) of the Income Tax Act, 1961, (for short, herein after referred to as 'the Act'), at the instance of the assessee, whereby the following questions have been referred by the Income Tax Appellate Tribunal, Delhi Bench (C) for our opinion:- "1. Whether on the facts and in the circumstances of the case the Appellate Tribunal was justified in holding that Income Tax Officer had the option to assess individually the members of the AOP, which was formed in the account year relevant to the assessment year 1956-57 and continued upto the assessment year 1956-57 and continued upto the assessment year 1964-65.? 2. Whether the shares of the two members of the AOP were rightly held by the Tribunal to be half and half in the income or it should have been held that the shares were undefined and consequently no assessment could be made on the members of the AOP individually? 3. Whether the Tribunal was right in holding that the members of the AOP took the subject matter of the gift dated 28-12-51 and 23-8-52 as tenants-in-common and not as joint tenants? 4. Whether the gifts made by the two deeds of gift - deeds dated 28-12-1951 and 23-8-1952 constituted gifts to hindu undivided family?" 2. There were two appeals before the Tribunal being Income-Tax Appeal Nos.3109 and 3111/73-74. These appeals were dispose of by a common order dated 29th August 1973 and, as identical questions of law arose from the said order of the Tribunal, a consolidated statement of case was drawn and the aforesaid questions have been referred for our opinion. 3. The relevant assessment years are 1963-64 and 1964-65. The material facts leading to the present reference-as per the statement of the case are these. The assessee Smt. Sudba Khemka is the wife of Krishna Kumar Khemka (hereinafter referred to by her name or as the assessee). S.R. Khemka, father-in-law of the assessee, by two memoranda of gifts dated 28th December 1951 and 23rd August 1952 gifted certain shares in joint stock companies and cash to the assessee and her husband. The said gifts were accepted by these donees; the shares were got registered by them in their joint names and the cash was deposited by them in their joint account with Jiyajeerao Cotton Mills. The said gifts were accepted by these donees; the shares were got registered by them in their joint names and the cash was deposited by them in their joint account with Jiyajeerao Cotton Mills. Ltd., Gwalior, under the name of Krishna Kumar & Sudha Khemka Jt. A/C. All the dividends received by them on the said shares as also the interest on the said cash were credited to the said joint account with Jiyajeerao Cotton Mills Ltd. or to another joint account later opened by Krishna Kumar Khemka and Smt. Sudha Khemka with the United Commercial Bank, Ltd., Gwalior. Thus, the donees elected for and continued the joint management of the gifted property and accretions, thereto. Out of the said credits, the donees purchased other shares and sold part of the same as also some of the shares gifted to them by S.R. Khemka. As a result of these sales, Krishna Kumar Khemka and smt. Sudha Khemka (the assessee) - the donees, were held to be dealers in shares and the resultant surplus taxed. Krishna Kumar Khemka and Smt. Sudha Khemka returned their income, as in the earlier years, in the status of an association of persons in respect of the income of the joint account, i.e., dividends and interest. The Income Tax Officer computed the income of the said association of persons on the return submitted by it, but did not make any assessment on the said return. He, however, assessed Krishna Kumar Khemka and Smt. Sudha Khemka each on one half of the income from dividends and interest as also one half of the surplus realized on the sales of shares. 4. Appeals were individually filed before the Appellate Assistant Commissioner by the association of persons as well as Krishna Kumar Khemka and Smt. Sudha Khemka. The Appellate Assistant Commissioner dismissed these appeals and held that Krishna Kumar Khemka and Smt. Sudha Khemka formed an association of persons; it was open to the Department to assess each member of the association of persons in respect of his shares in the income of the association of persons. The Appellate Assistant Commissioner dismissed these appeals and held that Krishna Kumar Khemka and Smt. Sudha Khemka formed an association of persons; it was open to the Department to assess each member of the association of persons in respect of his shares in the income of the association of persons. Against the order of the Appellate Assistant Commissioner the association of persons as well as Krishna Kumar Khemka and Smt. Sudha Khemka individually filed-appeals before the Income Tax Appellate Tribunal Before the Tribunal the appellants reiterated the same contentions that were raised by them before the subordinate authorities that they formed an association of persons. It was pointed out that the said shares and cash had been gifted to Krishna Kumar Khemka and Smt. Sudha Khemka jointly by S.R. Khemka to hold the same jointly. Accordingly, the shares had been got transferred by them to their joint names and the cash deposited in their joint account with Jiyajeerao Cotton Mills Ltd., Gwalior. Out of the income from dividends and interest from the said shares and cash, further shares were purchased in their joint names. Some of these shares as also part of the shares gifted by S.R. Khemka were sold and a profit was made on such sales. On the said facts it was contended that the said income from dividends and interest and the profit on the sales of shares (if taxable) should be held to be the income of the association of persons. It was further submitted that Krishna Kumar Khemka and Smt. Sudha Khemka held the said assets as joint owners with indeterminate and undefined shares. It was further pointed out that the said gifts had been made by S.R. Khemka to them jointly and that the said assets had been in fact held by them jointly with undefined shares. It was also pointed out that even the conduct of the parties showed that their respective shares were undefined and indeterminate. It was further submitted that the donees held the gifted property as joint tenants and not tenants-in-common. It was, therefore, submitted that under the circumstances, the assessment should be made on Krishna Kumar Khemka and Smt. Sudha Khemka as an association of persons and, as their respective shares were undefined and indeterminate, separate assessments could not be made on each of them on one half of the income of the association of persons. It was, therefore, submitted that under the circumstances, the assessment should be made on Krishna Kumar Khemka and Smt. Sudha Khemka as an association of persons and, as their respective shares were undefined and indeterminate, separate assessments could not be made on each of them on one half of the income of the association of persons. In the alternative, it was urged that the gifts by S.R. Khemka jointly to his son Krishna Kumar Khemka and his wife Smt. Sudha Khemka constituted a gift to the joint Hindu family of the donees. 5. The Tribunal held that: (a) an association of persons consisting of Krishna Kumar Khemka and his wife Smt. Sudha Khemka was formed in the assessment year 1956-57 as per the test laid down by the Supreme Court in Indira Balkrishna V.C.I.T. 1960 39 ITR 546 and continued to be an association of persons for the subsequent years; (b) the Income Tax Officer had an option either to assess it as an association of persons or to assess the members individually; (c) The gifted property in question was held jointly by Krishna Kumar Khemka and Smt. Sudha Khemka as tenants-in-common. It is true that the shares were not specified in the gift-deeds, but in the absence of specification of shares the donees must be deemed to have equal shares in the subject matter of gift; and (d) there is no question of the gift being made to Hindu undivided family of the donees. These facts are taken from annexure D appended to the statement of the case, as in the statement of case, it is mentioned that a brief resume of facts is enclosed for the purpose of ready reference in annexure D. 6. We shall first take up question No.4 for consideration. It is undisputed that Smt. Sudha Khemka, her husband Krishna Kumar Khemka and S.R. Khemka are Hindus governed by the Hindu law. They could form a joint Hindu family, because a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters, and the joint and undivided family is a normal condition of the Hindu society. A joint Hindu family may consist of a male Hindu and his wife. They could form a joint Hindu family, because a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters, and the joint and undivided family is a normal condition of the Hindu society. A joint Hindu family may consist of a male Hindu and his wife. But merely because Smt. Sudha Khemka and her husband Krishna Kumar Khemka could be members of a joint Hindu family, it cannot be said that the properties in question (hereinafter referred to as 'gift property') gifted to them by S.R. Khemka, the father of Krishna Kumar Khemka, would form the property of that joint Hindu family. It is a question of fact whether the donor S.R. Khemka had given the gift property to the Hindu undivided family of Smt. Sudha Khemka and her husband Krishna Kumar Khemka. The gifts deeds dated 23rd December 1951 and 23rd August 1952, by which the gift property was donated, are not annexed with the statement of the case. From the facts available in the statement of the case with reference to these gift-deeds, it is obtainable that the con or had given the gift property in favour of these two persons in their names, and the Tribunal has found that there is no question of the gifts being made to the Hindu undivided family of these persons. This finding of the Tribunal goes to show that the gifts were not made in favour of the Hindu undivided family of these persons, but in their individual names. The interest which these persons took in the gift property was the one that was bestowed on them by the donor and as we have already observed herein-above that the gifts having been made in their individual names, under law it cannot be treated to have been made to their Hindu undivided family. This view of ours is supported by a decision of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and another (1) which was referred to and relied upon by the learned counsel for the assessee. The relevant observation from this decision is extracted herein below ; "The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. The relevant observation from this decision is extracted herein below ; "The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is ar is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to: and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The mitakshara, we think, is fairly clear on this point. It has placed the father’s gifts under a separate category altogether and in more places than one has declared them exempt from partition. Thus, in Chap. 1, Sec. 1, placitum 19 Mitakshara refers to a text of Narada which says: "Excepting what is gained by valour the wealth of a wife and what is acquired by science are three sorts of property exempt from partition; and any 'favour conferred by a father.'" Chapter, 4, Sec. 4 of Mitakshara deals with of facts not liable to partition and property "obtained through the father's favour" finds a place in the list of things of which no partition can be directed; vide section 4, placitum 28 of Mitakshara. This is emphasised in Sec. 6 of chapter 1 which discusses the rights of posthumous sons or sons born after partition, in placitum, 13 of the section it is stated that though a son born after partition takes the whole of his father's and mother's property, yet if the father and mother have affectionately bestowed some property upon a separated son, that must remain with him. A test of Yagnavalkya is then quoted that "the effects which have been given by the father and by the mother belong to him on whom they are bestowed." "Emphasis supplied" 7. In the light of the foregoing discussion, we answer question No.4 in the negative in favour of the Revenue and against the assesse. 8. We now turn to consider questions No.1, 2 and 3. These questions are inter-linked. In the light of the foregoing discussion, we answer question No.4 in the negative in favour of the Revenue and against the assesse. 8. We now turn to consider questions No.1, 2 and 3. These questions are inter-linked. We may state that the learned counsel for the assessee did not dispute the legal position that the Income Tax Officer has the option to assess the members of an association of persons individually. But his contention was that this option can be exercised only when the individual shares of the members of the association of persons are determinable. His submission was that in the instant case, the gifts were made jointly in favour of Smt. Sudha Khemka and her husband Krishna Kumar Khemka. They held the gift property as joint tenants and not as tenants-in-common, and if they held it as tenants-in-common, their shares being undefined either in the gift-deeds under any statute, the exercise of the option by the Income Tax Officer was impractical. The Income Tax Officer was not right in law holding that the two members of the association of persons, viz., Smt. Sudha Khemka and Krishna Kumar Khemka had half share each in the income from the gift property, and assessing them individually in accordance with that share. 9. Learned counsel for the assessee submitted that whether the donees took the gift property as joint tenants or tenants-in-common under the two gifts, depends upon the intention of the donor. In support of this proposition of his, the learned counsel relied on the observation of the Supreme Court in Arunachal's case (supra) that the interest which he takes in such property must depend upon the will of the grantor." The learned counsel submitted that from the following facts, it is clearly made out that the intention of the donor S.R. Khemka was to make a joint gift in favour of Smt. Sudha Khemka and Krishna Khemka and the donees took the gift property under the gifts as joint tenants :- (i) In the gift-deeds, the respective shares of the donees in the gift property are not defined. (ii) The conduct of the donees in dealing with the gift property was such as is detailed out in par. (ii) The conduct of the donees in dealing with the gift property was such as is detailed out in par. 6 of this order, (iii) Had the intention of the donor not been that the donees should take and hold the gift property, which consists of shares and cash, as joint tenants, the donor would have divided them and made separate gift in favour of each of the donees instead of making the gifts in their joint names. 10. There can be no quarrel on the legal proposition that the intention of the donor is a determining factor as to whether the donees should take the gift property of the donor under the gifts as joint tenants or tenants-in-common. 11. The inference of law as to whether the gifts were joint gifts and the donees took the gift property as joint tenants in view of the legal position shall immediately be discussed hereinafter. We may recall here that the parties are Hindu. The principle of joint tenancy is foreign to Hindu law except in the case of coparcenery between the members of a Hindu undivided family, and unless a contrary intention appears from the grant itself, the grantees will take as tenants-in-common, This legal position is well recognised. The law on this point has been summarised in Mula's Transfer of Property Act, 6th Edn, at page 222 in its commentary on section 45. To quote: "The Hindu rule is exactly the opposite. In Jogeswar Narain v. Ramchand Dutt (1896) 23-61, 670; 23 I.A. 37, 44, the Privy Council said.... "The principle of joint tenancy appears to be unknown to Hindu law, except in case of coparcenery between members of an undivided family;" and this has been approved by the Supreme Court in Venkatakrishna v. Satyavathi 1968 2 SCR 395 Even if the grantees are members of a coparcenary they will take as tenants-in-common, unless a contrary intention appears from the grant. [See (1905) 28 Mad. 363]. It has been held that in India the Court must always lean against holding a bequest or a grant to be a joint bequest or grant, and the presumption must always be in favour of a tenancy-in-common. Words in a will that' possession should be in the hands of both, and that both should enjoy the property in their lifetime is not enough evidence of a contrary intention." 12. Words in a will that' possession should be in the hands of both, and that both should enjoy the property in their lifetime is not enough evidence of a contrary intention." 12. This legal position has also been recognised by the Supreme Court in Boddu Venkatakrishna Rao and others v. Smt. Boddu Satyavathi and others AIR 1968 SC 751 The relevant observation of their Lordships is set out here-in-below:- xxx xxx xxx (5) Let us now consider the position in law. The Law has been summarised in Mulla's Transfer of Property Act (Fifth Edition) at page 226. As early as 1896 it was held by the Judicial Committee of the Privy Council in Jogeswar Narain Dutt v. Ram Chandra Dutt 1896 23 Ind. App. 37 at p. 44 PC that The principle of joint tenancy appears to be unknown to Hindu Law, except in the case of coparcenary between the members of an undivided family." and that it was not right to import into the construction of a Hindu will an extremely technical rule of English conveyancing. Many years later the principle was reiterated in the case of Mt. Bahu Rani v. Rajendra Bakshsingh 60 Ind., App. 95 at p. 101, AIR 1933 PC 72 at p. 75 (6) It was argued before us that there were indications in the will that the intention of the testatrix was that the foster children should take as joint tenants and that this was apparent from the clause in the will which provided that "the entire property should be in possession of both of them and that both of them should enjoy throughout their lifetime the said property and that after their death the children that may be born to them should enjoy the same," We do not think that from this one can spell out a joint tenancy which is unknown to Hindu law except as above stated. The testatrix did not expressly mention that on the death of one all the properties would pass to the other by right of survivorship. We have no doubt on a construction of the will that the testatrix never intended the foster children to take the property as joint tenants. The foster children who became tenants-in-common partitioned the property in exercise of their right. xxx xxx xxx 13. We have no doubt on a construction of the will that the testatrix never intended the foster children to take the property as joint tenants. The foster children who became tenants-in-common partitioned the property in exercise of their right. xxx xxx xxx 13. It would be of significant relevance to state here that neither the gift-deeds are annexed with, nor the words in the instrument of gifts, which indicate an intention to create a joint tenancy in favour of the donees Smt. Sudha Khemka and her husband Krishna Kumar Khemka of the gift property have been extracted in, the statement of the case. All that is mentioned about the gift deeds. is: "One Mr. S.R. Khemka by rwo memoranda of gifts dated the 28th December 1951 and the 23rd August 1952 gifted certain shares in joint stock companies and cash to his son, Shri Krishna Kumar Khemka and daughter-in-law Smt. Sudha Khemka jointly." This cannot be taken to be an expression of a contrary intention so as to out-weigh the presumption in favour of tenants-in-common under the Hindu law. 14. The upshot of the foregoing discussion is that Smt. Sudha Khemka and Krishna Kumar Khemka took the gift property as tenants-in-common. 15. Now, the question that arises is that when the donees are held to be tenants-in-common, what should be their shares. No specific provision of any law about the determination of shares in a property obtained as tenants-in common under a gift has been brought to our notice, and the contention of the learned counsel for the assessee has been that there is no law on the point and, as such, it should be held that the shares of the donees cannot be defined. Here we would like to advert to a decision of the Supreme Court in T. Saraswathi Ammal v. Jagadambul and another AIR 1953 S.C. 201 , wherein their lordships have observed as under :-- xxx xxx xxx In the absence of proof of existence of a custom governing succession the decision of the case has to rest on the rules of Justice, equity and good conscience because admittedly no clear text of Hindu law applies to such a case. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mother's property in equal shares. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mother's property in equal shares. No exception can be taken to this finding given by the High Court. No other rule was suggested to us leading to a contrary result. 16. From the aforesaid observation of their lordships of the Supreme Court, what is discernible is that in absence of any law on a particular point, the rules of justice, equity any good conscience should be brought into play. In search of such rules of justice, equity and good conscience for the determination of a matter like the one in hand, in our opinion, assistance can be drawn from Section 45 of the Transfer of Property Act. It is true that that section relates to the transfer of immovable properties and that too for consideration, but on that footing, it cannot be said that assistance cannot be drawn from the principle of that Section: more so, when Section 6 of the Transfer of Property Act makes it clear that the Transfer of Property Act applies even to the case of transfer of movable properties, and Section 122 of that Act provides for the gifts of movable properties also. The latter part of section 45, which reads thus: "S. 45. xxx xxx In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property" makes it clear that in the absence of any thing to the contrary the presumption is of equality of interest. The law in this respect has been summarised in the Transfer of Property Act by Mulla (Sixth Edition) at page 223 : "Presumption of equality. - In the absence of evidence showing in what shares the consideration was paid, there is a presumption that the co-owners' interests are equal. In a case where a common share which had been forfeited, was bought in by the Collector out of a fund contributed by the co-sharers, it was presumed that the Collector had debited an equal amount to each co-sharer, and that each co-sharer' had an equal interest in the share when it has recovered. In a case where a common share which had been forfeited, was bought in by the Collector out of a fund contributed by the co-sharers, it was presumed that the Collector had debited an equal amount to each co-sharer, and that each co-sharer' had an equal interest in the share when it has recovered. It has been held that when a person can produce evidence of the amount of his share but fails to do so, he cannot avail himself of this presumption of equality." 17. Learned counsel for the assessee, relying on a decision of the Madras High Court in Arakal Joseph Gabriel v. Domingo Inas ILR 94 Mad. 80 had contended that the principle of Section 45 of the Transfer of Property Act cannot be applied to gifts The relevant observation of the learned Judges of the Madras High Court in Arakal Joseph's reads as under :- "Our attention was drawn to section 45 of the Transfer of Property Act. That relates to transfers for consideration. The principle of that section does not apply to gifts. The amount of consideration paid by each measures the interest of each in the property bought. Gifts stand on a different footing. We must therefore agree with the learned Judge in the Court below that the mortgage by the first defendant passed no interest to the plaintiff. 'Ve may point out that the decision in Mankamma Kunwar v. Balkishan Das 1906 ILR 28 All, 38 In which the parties were Hindus does not apply. We dismiss the second appeal with costs." For the reasons already given by us herein-above, as to why assistance can be drawn from the principle contained in Section 45 of the Transfer of Property Act, we regret our inability to agree with the view taken by the learned Judges of the Madras High Court in the aforesaid case. The view taken by us gets support from a decision of the Supreme Court in Commissioner of Gift Tax, Kerala v. R. Valsala Amma 1971 82 I.T.R. 828. In this case, the two daughters had got certain properties from their mother under a will, Two items of properties, viz., a cinema theatre building with machinery and another building called "police quarters." which had been bequeathed to them, were gifted by them to their brother. In this case, the two daughters had got certain properties from their mother under a will, Two items of properties, viz., a cinema theatre building with machinery and another building called "police quarters." which had been bequeathed to them, were gifted by them to their brother. The question for decision was whether in respect of this gift for the purposes of gift tax, the donors should be assessed as individuals, or as an association, or as a body of individuals. In that context, their Lordships observed as under:- xxx xxx xxx "The property received by the asses sees under the will of their mother was admittedly received by them as co-tenants. Each of them had half share in that property. The question whether they divided that property or not is not a material question. In law each one of them had half the right in the property that they gifted to their brother. They were holding that property as tenants-in-common and not as joint tenants. Each one must be held to have made a gift of her share of the property though the gift is made through one single document. As mentioned earlier, the property with which we are concerned in this case is a property owned by two persons as tenants-in-common, each one having a definite share." From the above observation though it is not specifically stated, it appears that the shares were not defined by the donor; but as the donees received the property as tenants-in-common, they were held to have equal shares. 18. 18. Learned counsel for the assessee invited our attention to Sections 13 and 16 of the Finance Act, 1981, and argued that the addition of an Explanation in clause (v) of Section 86 of the Finance Act, which reads thus: "Explanation.- For the purposes of this clause, in the case of an association of persons which is assessable under Section 167-A, each of the members of the association whose shares in the income or, the case may be, part of the income of such association are indeterminate or unknown, shall be deemed to be entitled to receive an equal share in the total income or, as the case may be such part of the total income of the association and the individual share of such member in such total income or, as the case may be, part of the total income shall be determined accordingly." goes to show that but for this Explanation, when the shares of the members of an association of persons are not defined their shares would be indeterminate or unknown, and, it cannot be said that they would have equal shares. The argument of the learned counsel cannot be accepted. No theory for the purpose of an Explanation can be entertained, unless it is to be inferred from the language used. See Krishna Ayyangar v. Nallaperunal Pillal, ILR 48 Mad, 550 PC. There are cases, where the shares may be indeterminable or unknown; say, for example, the case of joint tenancy amongst persons other than the coparceners of a joint Hindu family. It appears, contemplating such cases, the legislature provided this Explanation. In the instant case, we have already found that the shares of the tenants-in-common, unless there is any thing to the contrary, would be equal. 19. The upshot of the foregoing discussion is that the view taken by the Tribunal regarding the shares of the assessee in the gift property is a correct one in law. 20. In the result, our answer to the questions referred to is as under : (i) Question No.1. is answered in the affirmative, i.e., in favour of the Revenue and against the assessee. (ii) The shares of the two members of the association of persons, viz., of Smt. Sudha Khemka and Krishna Kumar Khemka, were rightly held by the Tribunal to be half and half in the income. is answered in the affirmative, i.e., in favour of the Revenue and against the assessee. (ii) The shares of the two members of the association of persons, viz., of Smt. Sudha Khemka and Krishna Kumar Khemka, were rightly held by the Tribunal to be half and half in the income. Question No.2 is answered accordingly in favour of the Revenue and against the assessee. (iii) Question No 3 is answered in the affirmative, that is, in favour of the Revenue and against the assessee. The members of the association of persons took the subject matter of the gifts dated 28th December 1951 and 28-8-1952 as tenants-in-common. (iv) Question No.4. is answered in the negative, i.e., in favour of the Revenue and against the assessee. 21. We make no order as to costs.