JUDGMENT A.R. Tiwari, J. 1. The Income-tax Appellate Tribunal, Indore Bench, Indore, at the instance of the assessee in Miscellaneous Civil Case No. 171 of 1985, concerning Reference Applications Nos. 130 and 129/(Ind) of 1984, referred the undernoted questions of law : "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no partition and that the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961 ? (ii) Whether the Income-tax Appellate Tribunal was correct in law in approving the inclusion of the transferred properties in the assets of the Hindu undivided family for the purpose of levy of wealth-tax for the assessment year in question ?" 2. In Miscellaneous Civil Case No. 225 of 1985, concerning Reference Application No. 128/(Ind) of 1984, the Appellate Tribunal referred the undernoted question of law : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no partition and that the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961 ?" 3. The facts lie in a narrow compass. The applicant is the Hindu undivided family-asses see. Earlier it was being assessed as undivided Hindu family. During the proceedings of the assessment years 1976-77 and 1978-79, the applicant claimed the benefit under Section 171 of the Income-tax Act, 1961 (for short, "the Act"). It was asserted that there was a partial partition in the family by which the coparcener, Rajendra Kumar, had separated from the family by taking house No. 35, Yeshwant Road, Indore, and house No. 158, Ada Bazar, Indore, was given to Smt. Kaushaliyabai, wife of the karta of the aforesaid family, Shri Ramnarayan. This claim was based on the four documents dated March 26, 1974, March 30, 1974, July 31, 1975, and August 4, 1975, titled as "Tyag-Patra (Bina Muvavja)", i.e., deeds of relinquishment without consideration. It was held that these deeds did not constitute partial partition and manifested mere severance of status. The Tribunal, therefore, "rejected" the assessee's claim under Section 171 of the Income-tax Act, 1961, and the Appellate Tribunal approved the inclusion of the transferred properties in the assets of the Hindu undivided family for the purposes of levy of wealth-tax for the assessment year in question. The Tribunal, therefore, "rejected" the assessee's claim under Section 171 of the Income-tax Act, 1961, and the Appellate Tribunal approved the inclusion of the transferred properties in the assets of the Hindu undivided family for the purposes of levy of wealth-tax for the assessment year in question. The assessee, suffering adverse orders, filed the aforesaid reference applications under Section 256(1) of the Act for the assessment year 1976-77 and under Section 27(1) of the Wealth-tax Act, 1957, for the assessment year 1978-79 which arose out of the consolidated order of the Tribunal dated May 26, 1984, passed in I. T. A. Nos. 811 and 813/(Ind) of 1983 and C. O. Nos. 71 and 73/(Ind) of 1983 and W. T. A. No. 336/(Ind) of 1983 and C. O. No. 70/(Ind) of 1983 as also order dated May 26, 1984, passed in I. T. A. No. 812 of 1983 and Cross-Objection No. 74 of 1983 for the assessment year 1976-77. The Tribunal passed the orders against the assessee but on the applications of the assessee referred the abovequoted questions of law for answer by this court. 4. We have heard Shri G.M. Chaphekar learned senior counsel with Shri R. Sugandhi for the assessee and Shri D.D. Vyas learned counsel for the Department. 5. Section 171(1) to (4) of the Act provides as under : "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 Section 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. (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. (4) Where a finding of total or partial partition has been recorded by the Assessing Officer under this section, and the partition took place during the previous year, -- (a) the total income of the joint family in respect of the period up to the date of partition shall be assessed as if no partition had taken place ; and (b) each member or group of members shall, in addition to any tax for which he or it may be separately liable and notwithstanding anything contained in Clause (2) of Section 10, be jointly and severally liable for the tax on the income so assessed." 6. The Explanation to this section clarifying as to what was meant by partition and partial partition, is reproduced below : "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 ; (b) 'partial partition' means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both." 7. In Atrabanessa Bibi v. Safatullah Mia [1916] 43 Cal 509, it is held that a partition is not actually a transfer of property, but is analogous to an exchange. It signified "the surrender of a portion of a joint right in exchange for a similar right from the co-sharer". Spencer J., in Indoji Jethaji v. Kothapalli [1919] 54 IC 146 said that a partition "effects a change in the mode of enjoyment of property but is not an act of conveying property from one living person to another". Luculently partition is not a transfer but total severance of status brought about by physical division of property. Relinquishment, as held in Provident Investment Co. Luculently partition is not a transfer but total severance of status brought about by physical division of property. Relinquishment, as held in Provident Investment Co. v. I. T. Commissioner [1951] A. B. 95, is not an alienation. 8. In CIT v. Juggilal Kamalapat [1967] 63 ITR 292 (SC) ; AIR 1967 SC 401 , it is held that a deed of relinquishment is in the nature of a deed of gift, In paragraph 12 (at page 405), it is clearly laid down that (at page 299) : "A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, [1921] ILR 44 Mad 196 ; AIR 1921 Mad 137. A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole." 9. In Ammathayee alias Perumalakkal v. Kumaresan alias Balakrishnan, AIR 1967 SC 569 , it is held that the gifts of ancestral immovable property cannot be made so as to convert it into stridhan. 10. In a joint Hindu family property, each coparcener has an antecedent title. On partition, this antecedent, i.e., joint title is transformed into separate titles of individual coparceners. The nature of the transaction is not a transfer, but creates a division of jointness into separation. To put it differently, an "undivided" family becomes "divided" in conformity with the shares of each individual. There may be total or partial partition. In V.N. Sarin's case, AIR 1966 SC 432 , affirming the decision rendered by the High Court of Punjab in V.N. Sarin v. Ajit Kumar Poplai, AIR 1965 Punj 450, the apex court ruled that (at page 435) : "Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners." 11. It was observed by the Privy Council in Girja Bai v. Sadashiv Dhundiraj 43 Ind. App. 151 that : "Partition does not give him (a coparcener) a title or create a title in him ; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers." 12. It is thus clear that the appropriate authority is required to make an inquiry as to the nature of deed of relinquishment containing the statement of partition and to record a finding one way or other in terms of the Explanation attached to Section 171 of the Act. 13. In terms of Section 171 of the Act, the Assessing Officer was thus required to make an inquiry and record a finding as to whether there has been a total or partial partition of the joint family property, and if so, the date on which it had taken place. That is the intent and purpose of Section 171(2) of the Act. The provision of law thus obligates the Assessing Officer to make an inquiry after giving notice of inquiry to all members of the family. The expression used in this provision is that the Assessing Officer shall make an inquiry, the word "Assessing" has been substituted for the word "Income-tax" by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1988. 14. Indisputably no such inquiry is made in the instant cases before recording the finding that there was no partition. In these circumstances, it cannot be said that the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961. 15. 14. Indisputably no such inquiry is made in the instant cases before recording the finding that there was no partition. In these circumstances, it cannot be said that the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961. 15. The appropriate authority can reject the claim only after holding an inquiry as envisaged by the law, noted above, and recording the finding about non-existence of the partition. The first question of law can be bifurcated into two parts : (a) Whether there was no partition ; and (b) whether the claim was rightly rejected under Section 171 of the Act. The other question is whether the alleged transferred properties were rightly included in the assets of the Hindu undivided family for the purposes of levy of wealth-tax. Part (b) of the bifurcated question and the other question inescapably depend on the finding on bifurcated (a) question which in turn rests on inquiry and finding recorded one way or the other. A finding without the inquiry is no finding in the eye of law and as such it cannot be said that the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Act. 16. In the circumstances, the answer to bifurcated question (a) and the answer to the other question, as indicated above, are not necessary in view of our answer to question (b) that the Income-tax Officer did not rightly reject the assessee's claim under Section 171 of the Act in the absence of the inquiry required under Section 171(2) of the Act. It is, therefore, necessary that the appropriate authority should hold an inquiry into the claim as set up in terms of the aforesaid provision and then record the finding whether or not there was partition and if so whether the properties are required to be included in the assets of the Hindu undivided family for the purposes of levy of the wealth-tax for the assessment year in question. 17. In this view of the matter, we answer part (b) of the first question, i.e., whether the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961, in the negative, i.e., in favour of the assessee and against the Department. 17. In this view of the matter, we answer part (b) of the first question, i.e., whether the Income-tax Officer rightly rejected the assessee's claim under Section 171 of the Income-tax Act, 1961, in the negative, i.e., in favour of the assessee and against the Department. In view of this answer, the answer to part (a) and the other question regarding inclusion of the property for the purposes of levy of wealth-tax are rendered infructuous and as such are not required to be answered because the answer to these , questions will inevitably depend on inquiry and finding in conformity with Section 171(2) of the Act. 18. Accordingly, we are not satisfied fully with the correctness of the decision of the Appellate Tribunal and answer the abovestated questions in the terms indicated above. 19. These reference applications are accordingly answered in the terms indicated above but without any order as to costs. Counsel's fee shall be Rs. 1,000 (one set), if certified. 20. A copy of this order under the seal of the court and the signature of the Registrar in terms of Section 260(1) of the Act shall be forwarded to the Appellate Tribunal to dispose of the cases conformably to our order passed in these reference applications. 21. A copy of the order shall be retained in Miscellaneous Civil Case No. 225 of 1985 for ready reference.