JUDGMENT : R. K. Abichandani J. The Income-tax Appellate Tribunal, Ahmedabad Bench "B", has referred to the High Court for its opinion under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), the following questions : 2. At the Revenue's instance : "(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the share income received by Ramanlal from the partnership firm, Messrs. Nahalchand Dhanjibhai and Co., during the previous year under consideration was taxable in his hands in his capacity as karta of the smaller Hindu undivided family comprising himself, his wife and their two unmarried daughters? (2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the share incomes derived by Rajendrakumar and Dilipkumar two minor sons of partner, Ramanlal, from the partnership firm, Messrs. Nahalchand Dhanjibhai and Co., during the previous year under consideration were not clubbable with the share income derived by Ramanlal from the said firm if that share income was taxable in Ramanlal's hands in his capacity as karta of the smaller Hindu undivided family ?" 3. At the assessee's instance : "(3) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the share income derived by partner, Ramanlal, from the partnership firm, Messrs. Nahalchand Dhanjibhai and Co., during the previous year under consideration was to no extent taxable in the hands of the larger Hindu undivided family comprising Ramanlal, his wife and their major son Jayantilal, their minor sons Rajendrakumar and Dilipkumar and their minor unmarried daughters ?" 4. The assessee, Ramanlal, in the return filed by him for the assessment year 1972-73, claimed that the share income derived by him from the partnership firm, Messrs. Nahalchand Dhanjibhai and Co., was taxable in his hands as karta of the smaller Hindu undivided family consisting of himself, his wife and two unmarried daughters. 5. By a partnership deed dated November 15, 1958, the firm of Nahalchand Dhanjibhai and Co. was constituted consisting of the assessee, Ramanlal, and his brother, Rasiklal, both representing their respective Hindu undivided families. The share income of these two partners was, admittedly, assessed in their hands as kartas of their Hindu undivided families up to the assessment year 1971-72. 5. By a partnership deed dated November 15, 1958, the firm of Nahalchand Dhanjibhai and Co. was constituted consisting of the assessee, Ramanlal, and his brother, Rasiklal, both representing their respective Hindu undivided families. The share income of these two partners was, admittedly, assessed in their hands as kartas of their Hindu undivided families up to the assessment year 1971-72. By a partnership deed dated November 24, 1970, the partnership was reconstituted as effective from October 31, 1970, when three sons of the assessee and three sons of Rasiklal were admitted to the benefits of the partnership. The assessee's son, Jayantilal, become a major in May, 1971. 6. During the assessment year 1971-72, it was claimed that a partial partition of the movable property of Ramanlal's Hindu undivided family had taken place amongst the members of the said Hindu undivided family with effect from Aso Vadi 30 of S. Y. 2026. The Income-tax Officer, therefore, made an order dated October 13, 1971, under section 171(3) of the said Act to the effect that the capital of the Hindu undivided family of Ramanlal lying in the firm and amounting to rupees one lakh was divided between Ramanlal and his three sons, Jayantilal, Rajendrakumar and Dilipkumar, each getting Rs. 20,000 and that a similar amount of Rs. 20,000 came to the share of Ramanlal's wife, Savitaben. The assessee claimed that the share income from the partnership for the year under consideration should be taxed in his hands in his capacity as the karta of the Hindu undivided family as it had been done up to the assessment year 1971-72. The Income-tax Officer rejected this contention on the ground that, after the partial partition, Ramanlal being the only coparcener, he, his wife and his unmarried daughters did not constitute a Hindu undivided family. As regards the share income in question, the Income-tax Officer decided to treat it as individual's income. The income derived by the two minor sons of the assessee from the said firm by reason of their having been admitted to the benefits of the partnership was also included in the computation of the assessee's total income under section 64(ii) of the said Act. The income derived by the two minor sons of the assessee from the said firm by reason of their having been admitted to the benefits of the partnership was also included in the computation of the assessee's total income under section 64(ii) of the said Act. The order of the Income-tax Officer dated February 17, 1975, was challenged by the assessee in appeal before the Appellate Assistant Commissioner who confirmed the findings of the Income-tax Officer holding that, after partition of the capital invested in the firm of Messrs. Nahalchand Dhanjibhai, the assessee became the owner of the reduced investment in the new firm in his individual capacity and that the said fact warranted the assessment of the share income in the assessee's hands as an individual. The matter was carried to the Tribunal by the assessee. The Tribunal found that, from the new partnership deed dated November 24, 1970, it was clear that the partition in question had taken place in respect of the business of the respective Hindu undivided families of Ramanlal and Rasiklal and, therefore, it could be correctly inferred that the right to share the profits from the firm also stood partitioned. In this view of the matter, the Tribunal held that it was not possible to accept the assessee's contention that the assessee's larger Hindu undivided family's right to a share in the profits of the firm remained undivided and intact in spite of the partial partition of the capital amount as recorded by the Income-tax Officer. The Tribunal further held that, on the date of the partition, Ramanlal constituted a Hindu undivided family along with his wife and unmarried daughters even though he was the sole coparcener in the said Hindu undivided family. The Tribunal held that the fact that, at the time of the partition, Ramanlal's wife was also given Rs. 20,000 being the amount equal to that which was given to each of the three sons and to Ramanlal himself was of no significance and the portion that fell to the share of Ramanlal on partition belonged to the smaller Hindu undivided family which comprised Ramanlal, his wife and their unmarried daughters. The Tribunal reached this conclusion relying on the decision of the Supreme Court in Gowli Buddanna v. CIT 1966 (60) ITR 293 (SC). The Tribunal, therefore, held that the amount of Rs. The Tribunal reached this conclusion relying on the decision of the Supreme Court in Gowli Buddanna v. CIT 1966 (60) ITR 293 (SC). The Tribunal, therefore, held that the amount of Rs. 20,000 which belonged to the smaller Hindu undivided family of Ramanlal was an investment in the new firm to the detriment of the smaller Hindu undivided family and the share income derived from the new firm on the strength of the fresh partnership agreement coupled with the said capital contribution would constitute income of the smaller Hindu undivided family of Ramanlal and the share income in question would not be taxable in the hands of Ramanlal as an individual. As a consequence, the Tribunal held that the share income of the two minor sons could not be clubbed with the income of the Hindu undivided family under section 64 of the said Act. 7. From the partnership deed dated November 24, 1970, it appears that there was a partial partition as regards the business only with effect from October 30, 1970, of the respective Hindu undivided families of Ramanlal and Rasiklal and from October 31, 1970, the minor sons of Ramanlal and the minor sons of Rasiklal were all admitted to the benefits of the partnership. The Tribunal held that, virtually, there was only a reshuffling of the profit-sharing ratio due to admission of the minor sons to the benefits of the partnership. There is no dispute about the fact that, before partial partition, the property which was partitioned had the character of coparcenary property. It was sought to be contended on behalf of the Revenue that, in view of the partition, the share income which came to Ramanlal could be taxed in his hands as an individual since there was no other male member in the smaller Hindu undivided family of Ramanlal which consisted of Ramanlal, his wife and his unmarried daughters. A similar situation came tip for consideration before the Supreme Court in N. V. Narendranath v. CWT 1969 (74) ITR 190 (SC), where the assessee had obtained the property on partition of joint family property with his brother. A similar situation came tip for consideration before the Supreme Court in N. V. Narendranath v. CWT 1969 (74) ITR 190 (SC), where the assessee had obtained the property on partition of joint family property with his brother. The assessee was, thereafter, the sole coparcener living with his wife and two daughters and it was held, following the decision of the Supreme Court in Gowli Buddanna v. CIT 1966 (60) ITR 293 (SC), that even though there was only a single coparcener living with his wife and daughters, he was liable to be assessed as a Hindu undivided family as the property which came to his share was earlier held by the coparceners of a Hindu undivided family. In Gowli Buddanna's case 1966 (60) ITR 293 (SC), the property was originally owned by coparceners and, on the death of one of them, it devolved on the sole surviving coparcener who was living with his mother and two sisters. It was held that the character of the property as Hindu joint family property did not change notwithstanding the temporary reduction in the number of coparceners. It, thus, appears to be the settled legal position that, where the property was originally owned by coparceners and later devolved on a sole surviving coparcener as also where such property on partition came to be allocated to a single coparcener who had female members in the family, it has to be assessed in the hands of such sole surviving coparcener or the sole coparcener as a Hindu undivided family. As observed above, in the instant case, the property, admittedly, was originally owned by the coparceners of the Hindu undivided family and, on partial partition, Ramanlal received his share but that did not change the character of the property as Hindu undivided family property since Ramanlal was having his wife and unmarried daughters in his smaller Hindu undivided family. It is, therefore, clear to us that, on the ratio of the decisions of the Supreme Court in Gowli Buddanna's case 1966 (60) ITR 293 (SC) and N. V. Narendranath's case 1969 (74) ITR 190 (SC), the share income received by Ramanlal from the partnership was taxable in his hands in his capacity as karta of the smaller Hindu undivided family. In Surjit Lal Chhabda v. CIT 1975 (101) ITR 776 (SC), the Supreme Court, after considering Gowli Buddanna's case 1966 (60) ITR 293 (SC), N. V. Narendranath's case 1969 (74) ITR 190 (SC) and the decision of the Privy Council in Kalyanji Vithaldas v. CIT 1937 (5) ITR 90 (PC) and other cases, observed that there are two classes of cases each requiring a different approach. In cases falling within the rule in Gowli Buddanna's case 1966 (60) ITR 293 (SC), the question to be asked is whether property which belonged to a subsisting undivided family ceased to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess. In cases falling within the rule in Kalyanji Vithaldas v. CIT 1937 (5) ITR 90 (PC), the question to be asked is whether property which did not belong to a subsisting undivided family has truly acquired the character of joint family property in the hands of the assessee. The distinction which is highlighted in Surjit Lal Chhabda's case 1975 (101) ITR 776 (SC), by the Supreme Court was earlier noted in a decision of this court in Bharatkumar Chinubhai v. CIT 1969 (71) ITR 1 (Guj), wherein it was observed that decided cases make a distinction between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him: (1) Where property not originally joint is received by the assessee and the question to be asked is whether it has acquired the character of a joint family property in the hands of the assessee, and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into the absolute property of the assessee. In cases where the property was not owned by a Hindu undivided family before partition and, on partition, the properties are held by a coparcener living with female members who are entitled to maintenance, the assessment has to be made as an individual, the reason being that before it got converted as joint family property, it was not owned by coparceners of a Hindu undivided family. Such a conversion as joint family property occurred for the first time in the hands of the sole surviving coparcener by reason of a gift by the father as in Kalyanji's case 1937 (5) ITR 90 (PC), and by reason of the sole coparcener throwing his separate property into the common hotchpot as in Chhabda's case 1975 (101) ITR 776 (SC). In the instant case, admittedly, the property that was obtained by the assessee-coparcener at the partition was previously held by the coparceners of the Hindu undivided family. Therefore, after the partition, its character as joint family property continued even though the number of coparceners was reduced to Ramanlal alone in his Hindu undivided family. In our opinion, therefore, the rule in Gowli Buddanna's case 1966 (60) ITR 293 (SC), as applied in N. V. Narendranath's case 1969 (74) ITR 190 (SC), would be attracted in the instant case. In view of the fact that the property which came to the share of the assessee-coparcener, admittedly, belonged to the coparceners prior to partition, its character as coparcenary property continued in the hands of the assessee who was a sole coparcener having a wife and two daughters constituting a smaller Hindu undivided family on partition. Therefore, the coparcenary property coming to the share of the assessee-coparcener belonged to his Hindu undivided family and cannot be assessed as an individual property of the assessee. The view which we are taking is also supported by a decision of a Division Bench of this court in Income-tax Reference No. 278 of 1978 (to which one of us-justice R.C. Mankad, Acting Chief justice-was a party) decided on March 22, 1988 (CIT v. Harshvadan Mangaldas 1992 (194) ITR 136 (Guj). We, therefore, held that the Tribunal was right in law in coming to the conclusion that the share income received by Ramanlal from the partnership firm of Messrs. Nahalchand Dhanjibhai and Co. was taxable in his hands in his capacity as the karta of the Hindu undivided family which comprised Ramanlal, his wife and their two unmarried daughters. Question No. 1 is, therefore, answered in the affirmative and against the Revenue. 8. Nahalchand Dhanjibhai and Co. was taxable in his hands in his capacity as the karta of the Hindu undivided family which comprised Ramanlal, his wife and their two unmarried daughters. Question No. 1 is, therefore, answered in the affirmative and against the Revenue. 8. In view of our finding that the share income received by Ramanlal from the firm was taxable in the hands of the smaller Hindu undivided family of Ramanlal, it follows that the share income of the two minor sons cannot be clubbed with the income of the smaller Hindu undivided family of Ramanlal. In Dinubhai Ishvarlal Patel v. K. D. Dixit, ITO 1979 (118) ITR 122 (Guj), it was held by this court that in section 64(1)(ii) of the said Act, the word "individual" must be confined to a person who is being assessed in his individual capacity and none else and, therefore, where the assessee is a partner in a firm in his capacity as karta of a Hindu undivided family the share income of his wife or son as partners of the firm, cannot be included in the assessment of the assessee as a Hindu undivided family. In this view of the matter, we hold that the Tribunal was right in concluding that the share income derived by the two minor sons of Ramanlal from the said partnership firm cannot be clubbed with the share income derived by Ramanlal from the said firm which was taxable in the hands of Ramanlal in his capacity as the karta of the smaller Hindu undivided family. Question No. 2 is, therefore, answered in the affirmative and against the Revenue. 9. In view of the above discussion and answers to questions Nos. 1 and 2, question No. 3 is answered in the affirmative and against the assessee. 10. Reference stands disposed of accordingly with no order as to costs.