Judgment G.G.Sohani, J. 1. The judgment of this case will also govern the disposal of Tax Cases Nos. 231, 232 and 238 of 1980, as a common question of law is involved in all these references. 2. By this reference under Sec. 256(1) of the Income-tax Act, 1961, (hereinafter referred to as "the Act"), the Income-tax Appellate Tribunal, B Bench, Patna, has referred the following question of law to this court for its opinion ; "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that 50% of the income from business and property has to be assessed in the hands of the assessee-Hindu undivided family and the balance 50% has to be assessed in the hands of Shri Nand Kumar Prasad Sah in the status of an individual for the assessment years 1972-73 and 1973-74.?" 3. The material facts giving rise to this reference, briefly, are as follows : The assessee is assessed in the status of a Hindu undivided family and derives income from house property and business. Shri Tunki Sah was the karta of the Hindu undivided family consisting of himself, his wife, Smt. Budhi Devi, and his son, Shri Baidyanath Prasad Sah. Shri Tunki Sah died in the year 1955 and, thereafter, Baidyanath Prasad Sah became the karta of the Hindu undivided family consisting of himself, his mother, Smt. Budhi Devi, and his wife, Smt. Godabari Devi. Smt. Budhi Devi died in the year 1960 and the Hindu undivided family continued with the remaining members. In the return filed on behalf of the assessee for the assessment years in question, it was contended by the assessee that on the death of Tunki Sah, his widow, Smt. Budhi Devi, succeeded to half share in the Hindu undivided family property with limited interest but, on the coming into force of the Hindu Succession Act, 1956 , she became the absolute owner of that property and that, on the death of Smt. Budhi Devi, Baidyanath Prasad Sah succeeded to her property in his individual capacity. It was further contended that, on May 3, 1969, Baidyanath Prasad made a gift of the property to which he had so succeeded on the death of his mother to his adopted son, Nand Kumar Prasad Sah. It was further contended that, on May 3, 1969, Baidyanath Prasad made a gift of the property to which he had so succeeded on the death of his mother to his adopted son, Nand Kumar Prasad Sah. It was, therefore, contended that half the income from the property and business of the Hindu undivided family should be assessed in the hands of Nand Kumar Prasad Sah in his individual capacity and that it be excluded from the income of the Hindu undivided family. While framing the assessment, the Income-tax Officer did not accept the claim made on behalf of the assessee and assessed the entire income from the property and business of the Hindu undivided family as the income of the assessee but also made a protective assessment on Nand Kumar Prasad Sah in respect of the returns filed by him. Aggrieved by the order passed by the Income-tax Officer, the assessee preferred an appeal which was dismissed by the Appellate Assistant Commissioner of Income-tax. On further appeal before the Tribunal, the Tribunal held that Smt. Budhi Devi became entitled to 50% share in the property and business of the Hindu undivided family after the death of her husband and that, after her death, Baidyanath Prasad Sah succeeded to that property in his individual capacity and that he could make a valid gift thereof in favour of his adopted son. The Tribunal, therefore, held that the Income-tax Officer was not justified in including the income from that property which was assigned by a gift to Nand Kumar Prasad Sah in the total income of the Hindu undivided family. Aggrieved by the order passed by the Tribunal, the Revenue sought reference and it is at the instance of the Revenue that the aforesaid question of law has been referred to this court for its opinion. 4. Shri Rajgarhia, learned counsel for the Revenue, did not dispute that, on the death of Shri Tunki Sah in the year 1955, Smt. Budhi Devi, his widow, became entitled to claim partition. Learned counsel, however, contended that as Smt. Budhi Devi did not claim partition, her interest after her death devolved on the surviving coparceners and that the Tribunal, therefore, erred in holding that her son succeeded to that interest in his individual capacity. Learned counsel, however, contended that as Smt. Budhi Devi did not claim partition, her interest after her death devolved on the surviving coparceners and that the Tribunal, therefore, erred in holding that her son succeeded to that interest in his individual capacity. It was also contended that, in any event, no claim for partition under Sec. 171 of the Income-tax Act having been ever made at any time by the Hindu undivided family assessee, the Income-tax Officer was justified in computing the entire income of the Hindu undivided family as the income of the assessee while framing the assessment, In reply, Shri Jain, learned counsel for the assessee, contended that the interest of Smt. Budhi Devi in the Hindu undivided family property, though limited prior to the coming into force of the Hindu Succession Act, 1956 , became her absolute property and that the Tribunal was right in holding that her son, Baidyanath Prasad San, succeeded to the property left behind by her and was, therefore, competent to make a gift of that property in favour of his adopted son. As regards the applicability of Sec. 171 of the Income-tax Act, learned counsel contended that that provision was not attracted in the instant case. 5. Now, in the instant case, it cannot be disputed that, after the death of Shri Tunki Sah in the year 1955, his widow, Smt. Budhi Devi, acquired the interest of her deceased husband in the coparcenery property, including the right to claim partition. It is also a fact that she did not claim any partition. As held by the Supreme Court in Potti Lakshmi Perumallu V/s. Potti Krishnavenamma, AIR 1965 SC 825 , like other coparceners of a Hindu coparceneary, the interest of a widow, until separated by a partition, continued to be a fluctuating one which was liable to increase or decrease with the deaths or additions in the family. I may usefully refer to the following observations in Parappa alias Hanumanthappa V/s. Nagamma, AIR 1954 Mad 576 , 579 [FB], which are pertinent : "The Act, therefore, has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Sec. 3(2) of the Act does not bring about a severance of interest of the deceased coparcener. Sec. 3(2) of the Act does not bring about a severance of interest of the deceased coparcener. Certainly, the widow is not raised to the status of a coparcener though she continued to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition. From the standpoint of the other male members of the joint family, the right to survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her lifetime all the powers which her husband had save that her interest was limited to a widows interest. She could alienate her widows interest in her husbands share ; she could even convey her absolute interest in the same for necessity or other binding purposes. She could ask for partition and separate possession of her husbands share. In case she asked for partition, her husbands interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property. If there was no severance, it would devolve by survivorship on other members of the joint Hindu family. This conception of the legal person of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise." 6. The aforesaid observations were approved by the Supreme Court in Satrughan Isser V/s. Sabujpari, AIR 1967 SC 272 . This conception of the legal person of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise." 6. The aforesaid observations were approved by the Supreme Court in Satrughan Isser V/s. Sabujpari, AIR 1967 SC 272 . Again in CED V/s. Alladi Kuppuswamy, [1977] 108 1TR 439, the Supreme Court held, referring to the aforesaid observations, that it, was manifest that, if the widow had not chosen to exercise her right of partition, there was no severance of the Hindu coparcenary and on her death the interest of the widow merged in the coparcenary property or lapsed to the other coparceners. 7. It is, however, urged on behalf of the assessee that the aforesaid decisions are not applicable after the coming into force of the Hindu Succession Act, 1956. It is contended that the effect of Sec. 14(1) of the Hindu Succession Act, 1956, is that even if Smt. Budhi Devi had not chosen to claim partition, the interest which she possessed at the time of commencement of the Hindu Succession Act, 1956, having become enlarged into an absolute estate, she became the absolute owner of half the share in the Hindu undivided family property and her son, Baidyanath Prasad Sab, succeeded to that property which could be validly gifted by him to his adopted son. Reliance was placed on the decision of the Madras High Court in M. V. Chockalingam Pillai V/s. Alamelu Animal, AIR 1982 Mad 29 wherein it has been held that the decision in Parappa alias Hanumanthappa V/s. Nagamma, AIR 1954 Mad 576 [FB], approved by the Supreme Court in Satrughan Isser V/s. Sabujpari, AIR 1967 SC 272 , was no longer applicable after the coming into force of the Hindu Succession Act, 1956 . In my opinion, the principle enunciated in Parappa alias Hanumanthappa V/s. Nagamma, AIR 1954 Mad 576 [FB], and approved by the Supreme Court in CED V/s. Alladi Kuppuswamy [1977] 108 ITR 439, that if a widow acquiring interest in coparcenary property by virtue of the provisions of the Hindu Womens Rights to Property Act, 1937, has not chosen to exercise her right of partition, there was no severance of the Hindu coparcenary, cannot be held to be any longer applicable after the Hindu Succession Act, 1956, came into force. In this connection, reference to the provisions of Sec. 6 of the Hindu Succession Act, 1956 , would be instructive. The relevant provisions of Sec. 6 of the Hindu Succession Act, 1956 , read as under : "6. Devolution of interest in coparcenary property.--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I.--For the purposes of this section, the interest of a Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition "of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not." 8. Explanation I in the aforesaid provision incorporates the concept of a notional partition. This notional partition enables determination of the interest of a deceased coparcener in the Mitakshara coparcenary property which devolves on a female relative by virtue of Sec. 6 of the Hindu Succession Act, 1956, It is a moot question as to whether, in the absence of a provision similar to Explanation I to Sec. 6 of the Hindu Succession Act, 1956 , the concept of notional partition can be introduced where a widow acquires interest in the Mitakshara coparcenary property by virtue of the provisions of the Hindu Womens Rights to Property Act, 1937. In the instant case, however, it is not necessary to deal with this aspect of the matter any further because, even assuming that there was a notional partition on the death of Tunki Sah and his widow succeeded to half the share in the Hindu undivided family property, as contended on behalf of the assessee, no such claim was, at any time, made before the Income-tax Officer as provided by Sec. 171 of the Act. The relevant provisions of Sec. 171 of the Act are as follows : "171. Assessment after partition of a Hindu undivided family .--(1) A Hindu family hitherto assessed as undivided shall be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under this section in respect of the Hindu undivided family. (2) Where, at the time of making an assessment under Sec. 143 or Section 144, it is claimed by or on behalf of any member of a Hindu family assessed as undivided that a partition, whether total or partial, has taken place among the members of such family, the Assessing Officer shall make an inquiry thereinto after giving notice of the inquiry to all the members of the family. (3) On the completion of the inquiry, the Assessing Officer shall record a finding as to whether there has been a total or partial partition of the joint family property, and, if there has been such a partition, the date on which it has taken place .... 9. Explanation.--In this section,--(a) partition means- (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition ; or (ii) where the property does not admit of a physical division, then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition ;...." 10. It was contended on behalf of the assessee that the provisions of Section 171 of the Act would not be attracted when there was a notional partition by operation of the statute. The contention cannot be upheld. As held by the Supreme Court in Kalloomal Tapeswari Prasad (HUF) v, CIT [1982] 133 ITR 690, as long as a finding is not recorded under Sec. 171 of the Act holding that a partition as envisaged by the Explanation to Sec. 171 has taken place, the Hindu undivided family would be deemed for the purposes of the Act to be the owner of the property and also the recipient of the income from such property. In Sankaranarayanan Bhattathiripad v, ITO [1985] 153 ITR 562, it was held by the Kerala High Court as follows (p. 567) : "A joint family is disrupted either by an actual partition by volition of parties or by arbitration or suit, or, by a deemed partition by operation of the law. In either event, the family comes to an end. But, until the partition has led to a physical division of the properties--whether in the case of an actual partition or statutorily deemed partition--the income derived from such properties, for the purpose of assessment, will continue to be impressed with the joint family character. This is the effect of Sec. 171 of the Income-tax Act. By the State enactment, the Legislature has not in any manner intended to intrude into the domain of the Income-tax Act. What is payable under the Income-tax Act must be paid in terms of the provisions of that Act. If, following the State Act, the tenants-in-common have effected a physical division of their properties, and have thus put an end to the common holding, they would naturally enjoy the benefit of Sec. 171...." 11. I respectfully agree with the aforesaid observations. In the absence of any claim having been preferred by the assessee under Sec. 171 of the Act and in the absence of any finding recorded under that provision, the Tribunal, in my opinion, was not justified in holding that 50% of the income from the business and property of the Hindu undivided family had to be assessed in the hands of the assessee and that the balance had to be assessed in the hands of Nand Kumar Prasad Sah in the status of an individual. My answer to the question referred to this court by the Tribunal is, therefore, in the negative and against the assessee. In the circumstances of the case, parties shall bear their own costs of this reference. 12. Let a copy of this judgment be sent by the Registry of this court to the Assistant Registrar, Income-tax Appellate Tribunal, B Bench, Patna. G.C. Bharuka, J. 13. I agree.