Honble VERMA, J.–The petitioner has filed the present writ petition as a Karta of Hindu Undivided Family i.e. H.U.F. against the Certificate issued by the Tax Recovery Officer under Section 222 of the Income Tax Act 1961. The petitioner submits that for an individual liability of the petitioner, the property of the H.U.F. neither can be attached nor auctioned for recovery of the arrears of income tax due from the petitioner Prakash Chand Lunia in individual capacity. Copy of the notice has been attached Annexure A to the writ petition wherein it is mentioned that Prakash Chand Lunia (defaulter) had failed to pay the sum of Rs. 3,00,61,927/-payable by him in respect of certificate No. 99/120 dated 27.7.1992, as forwarded by the Income Tax Officer Ward-2, Ajmer and the interest payable under Section 220(2) of the Income Tax Act 1961 and therefore, the Tax Recovery Officer had certified under Section 223(2) of the Act that the amount mentioned above is to be recovered from said Prakash Chand Lunia. Notice contained the specification of the property being House No. 10/265, situated at Niti Marg Ajmer, belonging to the H.U.F. property and one shop situated in Naya Bazar. It is mentioned in Annexure A that the Notice is being issued under the said provisions of the Income Tax Act for the said HUF so far the share of Prakash Chand Lunia is concerned. On receipt of the Notice Annexure A, the Tax Recovery Officer, Ajmer, issued an order for sale of the property aforesaid details of which have been mentioned in Annexure B i.e. a bungalow at Niti Marg, Ajmer and shop HUF property at Naya Bazar, Ajmer, presently let out to M/s N.K. Jewellers, and three others. Annexure `B was issued on 14th February 1995. The petitioner is also aggrieved against the issuance of Notice Annexure `B. Annexure `B stated that for the amount mentioned in Certificate No. 99/120, the amount now to be recovered was Rs. 6,00,09,341/-after adding the tax etc. It was mentioned in Annexure B that public auction would be held on 27.03.1995. Details of property as mentioned in Auction Notice were given as under:- 1. M/s Prakash Chand Lunia, HUF property Bungalow at Niti Marg, Ajmer. 2. N/S Prakash Chand Lunia, HUFs Property Building (shop) at Naya Bazar, Ajmer presently let out to the following 1. M/s N.K. Jewellers (Ground Floor) 2. Details of property as mentioned in Auction Notice were given as under:- 1. M/s Prakash Chand Lunia, HUF property Bungalow at Niti Marg, Ajmer. 2. N/S Prakash Chand Lunia, HUFs Property Building (shop) at Naya Bazar, Ajmer presently let out to the following 1. M/s N.K. Jewellers (Ground Floor) 2. M/s. Rishab Saree Centre (First Floor) 3. Sh. Sunil Kumar (First Floor) 4. Shri Chiranjilal Pandya (2nd floor). (2). The petitioner submits that he had been made liable for payment of tax in the individual capacity in regard to his business and against the assessment even though the appeals are pending but there is no authority with the respondents to issue notice under Section 222 or any other provisions of law for auction of the property belonging to HUF of which the petitioner is only a co-parcener. Even in the Annexures `A and `B as reproduced above, the respondents had stated in the notice of auction that the property belongs to HUF. (3). The facts stated in the petition are not denied. The petitioner as an individual, was assessed to wealth-tax from time to time and proper return of wealth was filed for the assessment year 1991-92 declaring the net wealth of the petitioner Rs. 3,39,620/-and net income of the petitioner was Rs. 24,633/-for which the return was filed relevant for the assessment year 1993-94. The income of Rs. 16,600/-was declared being the rent from the two properties. Prakash Chand Lunia is also as assessee as an individual. He too filed his return of the income tax declaring Rs. 96,980/-as his income in respect of the accounting period from upto 1987 to 31st of March, 1989. For the year 1989-90 he was assessed for a total sum of Rs. 3,09,88.585/-on 25th of March, 1992. He preferred an appeal and ultimately the Income Tax Tribunal, Jaipur Bench, Jaipur, vide its order dated 29.12.1993 in I.T.A. No. 1442/JP/92 allowed the appeal in part. The reference application against the order of the Tribunal was still pending at the time of filing of the appeal. (4). Prakash Chand Lunia as an individual was also levied penalty of Rs. 1,60,93.257/-on 30.09.1994. First Appeal was dismissed on 26th December 1994. Second Appeal is pending before the Income Tax Tribunal as stated in the petition. The reference application against the order of the Tribunal was still pending at the time of filing of the appeal. (4). Prakash Chand Lunia as an individual was also levied penalty of Rs. 1,60,93.257/-on 30.09.1994. First Appeal was dismissed on 26th December 1994. Second Appeal is pending before the Income Tax Tribunal as stated in the petition. The petitioner submits that so far the family HUF as assessed above, that amount has since been paid but for the amount assessed against the petitioner Lunia in his individual capacity, the notice Annexure `A and `B had been issued for sale of the property of the HUF Family. It is submitted that a prohibitory order was passed in relation to the HUF Property wherein the petitioner was only a Karta i.e. HUF Property No. 10/265, Niti Marg, Ajmer inregard to his share. It is the submission of the petitioner that so far the shop situated in Naya Bazar is concerned, a total amount of Rs. 1275/-p.m. is being paid by the tenants and as for the property at Niti Marg, Ajmer is concerned, that also rented out. It is submitted that the HUF is still in existence and has not been partitioned as yet and unless and until a partition taken place, the share of its members or co-parcerners can not be known or ascertained. The HUF property of the co-parcener even official can not be sold or attached for the reason that there is no specific share of any co-parcener. (5). The petitioner is challenging the impugned order only on the above said submissions. In reply filed by the respondents it is admitted that Prakash Chand was defaulter in individual capacity and according to the proclamation made vide Annexure 2, it is submitted in the written statement that undivided share of said Prakash Chand Lunia is to be auctioned out of the co-parcenary HUF property. What is left to be determined in the present writ petition is that for a default of an individual assessee, whether property of the co-parcenary undivided and partitioned irrespective of the fact the member of co-parcener holding the co-parcenary property can be sold, attached or auctioned for recovery of an amount from a member who happens to be co-parcener but is liable for his individual assessment. (6). (6). What is the nature of the co-parcenary property before partition and what is the procedure of partition as per provisions of Hindu Law by Mulla 15th Edition Article 216 and Article 235 undivided coparcenary property in Mitakshara law defines as unity, ownership which is vested in the whole body of the co-parcener. Is the interest of the co-parcener is fluctuating, capable of being enlarged by deaths in the family, liable to be diminished by births in the family and it is only a partition that such co-parcener is entitled to a definite share. The right of each coparcener until a partition takes place consists in a common possession and common enjoyment of the coparcenary property. There is a community of interest and unity of possession between all the members of the family and upon the death of any one of them the others may well take by survivorship. (7). The rights of coparcener as per Article 235:-It is stated that no coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. There is community of interest and unity of possession as has been held in Naranbhai vs. Ranchod (1) and in Katama Natchiar vs. Rajah of Shivagunga (2). Article 216 and Article 235 read as under:- ``216. Undivided coparcenary interest.-The essence of a coparcenary under the Mitakshara law is, unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one third or one fourth. His interest is a fluctuating interest, capable of being enlarged by deaths, in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ``undivided coparcenary interest. The nature and extent of that interest is defined in Art. 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. ``235. The most appropriate term to describe the interest of a coparcener in coparcenary property is ``undivided coparcenary interest. The nature and extent of that interest is defined in Art. 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. ``235. Rights of coparceners.-(1) Community of interest and unity of possession.-No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, there is community of interest and unity of possession between all the members of the family, This has been reiterated by the Supreme Court in numerous decisions. (2) Share of income.-A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place. As no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the Common Chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family. It is competent to the manager to allot to any individual member a portion of the family property to enable him to maintain himself out of its income. Any savings out of the income and investments of such savings will be the separate property of the members. (2a) Joint possession and enjoyment.-Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. (8). (2a) Joint possession and enjoyment.-Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. (8). In Commissioner of Gift Tax, Madras vs. N.S. Getti Chettiar (3), the Supreme Court observed as under:- ``Before proceeding to examine the relevant provisions of the Act, it is necessary to mention that according to the true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share, namely, a third or a fourth. All the coparceners in a Hindu joint family are the joint owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family is. His share gets determined only when there is a division of status or a division by metes and bounds. Therefore, it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property, before a division. (9). Similar was effect in State of Maharashtra vs. Narayan Rao Sham Rao Deshmukh (4), wherein it was observed as under:- ``A Hindu coparcenary is, however a narrower body than the joint family. Only males who acquire by birth an interest in the joint or co-parcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. (10). When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. (10). As regard to as to how the HUF property is to be partitioned, the Supreme Court in Income-Tax Officer, Callicut vs. Smt. N.K. Sarada Thampatty (5), had held that the definition of ``partition in the Explanation to Section 171 of the Income-tax Act, 1961, does not recognise the partition of a Hindu undivided family even if it is effected by a decree of court unless there is a physical division of the property of the family and if the property is not capable of being physically divided then atleast there is division of the property to the extent it is possible; otherwise, the severance of status will not amount to partition. The Supreme Court observed as under:- ``The above definition of ``partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided, then there should be division of the property to the extent it is possible, otherwise, the severance of status will not amount to a partition. In considering the factum of partition for the purposes of assessment, it is not permissible to ignore the special meaning assigned to partition, partition is effected through a decree of Court. Ordinarily, a decree of a civil court in a partition suit is good evidence in proof of partition but, under section 171, a legal fiction has been introduced according to which a preliminary decree of partition is not enough; instead, there should be actual physical division of the property pursuant to a final decree, by metes and bounds. The Legislature has assigned a special meaning to ``partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue. Any assessee claiming partition of the Hindu undivided family must prove the disruption of the status of a Hindu undivided family in accordance with the provisions of section 171, having special regard to the Explanation. The assessee must prove that a partition effected by agreement or through a courts decree was followed by actual physical division of the property. Any assessee claiming partition of the Hindu undivided family must prove the disruption of the status of a Hindu undivided family in accordance with the provisions of section 171, having special regard to the Explanation. The assessee must prove that a partition effected by agreement or through a courts decree was followed by actual physical division of the property. In the absence of such proof, partition is not sufficient to disrupt the status of Hindu undivided family for the purpose of assessment of tax. Under the Hindu law, members of a joint family may agree to partition of the joint family property by a private settlement agreement, arbitration or through courts decree. Members of the family may also agree to share the income from the property according to their respective shares. In all such eventualities, the joint status of the family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of income-tax. Section 171 of the Act and the Explanation to it, prescribe a special meaning to partition which is different from the general principles of Hindu Law. It contains a deeming provision under which partition of the property of the Hindu undivided family is accepted only if there has been actual physical division of the property; in the absence of any such proof, the Hindu undivided family shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition or a decree of the court, for partition cannot terminate the status of a Hindu undivided family unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the court. (11). The Karnataka High Court in S.N. Santhalingam vs. Income-Tax Officer, Central Circle-II, Bangalore, and another (6), had held that the recovery proceedings could not be enforced against a person who was not named in the certificate as the defaulter merely on the ground that he was a partner of the firm. The Court held that `the term defaulter means the assessee mentioned in the certificate. The Court held that `the term defaulter means the assessee mentioned in the certificate. Section 220 provides that when any amount, otherwise than by way of advance tax, specified as payable in a notice of demand under section 156 is not paid within the time prescribed, the person to whom the notice of demand is issued shall be the assessee in default, and thus it is clear that the assessee who becomes a defaulter is the person to whom a notice of demand in the prescribed form is issued. So far the case of Allahabad High Court reported in Manohar Lal, Padam Prakash vs. Commissioner of Income-Tax and another (7), wherein the view taken by Karnataka High Court was affirmed. It was also held by the Kerala High Court in P.K. Kunjamma vs. Tax Recovery Officer (8), affirming the aforesaid view. (12). On the other hand the counsel for the respondents relies on the Hindu Law by Maynes 14th Edition para 402, 403, 405, wherein it has been firmly established that an alienation by a coparcener made without the consent of other coparcener has been held to be only voidable at the option of the other coparceners, the alienating coparcener himself not being competent to impeach it. In all the States in India, the undivided interest of a coparcener in joint family property may, during his lifetime be seized and sold in execution of a decree against him for his own debt, provided the attachment was made before his death. It was observed that it would be a natural step to extend this principle to all coparceners, so far as to allow a creditor to seize the interest of any one in the joint property as a satisfaction of his separate debt. It has been finally established that since the decision of the Judicial Committee in 1873 in Deen Dayal vs. Jugdip Narain (9), that the purchase of an undivided property at an execution sale during the life of the debtor for his separate debt does not acquire his share in such property with the power of ascertaining and realising it by a partition. The Privy Council in Suraj Bunsi vs. Sheo Persaud (10), held that there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family; upon the equity which a purchaser for value has, to be allowed to stand in his vendors shoes, and to work out his rights by means of a partition. In Sidheshwar Mukherjee vs. Bhubeshwar Prasad Narain Singh and others (11), in a case of decree of personal debt against a coparcener-execution sale-purchase of undivided interest of co-parcener it was held that the purchaser did not acquire title to any defined share in property and was not entitled to joint possession from date of his purchase and he could work out his rights only by a suit for partition. (13). In Dropdi Devi and others vs. Jagdish Chandra and others (12), the Hon. Bench of this Court held that attachment of undivided interest of a coparcener in execution of a decree against him for his personal debts is permitted under the law. (14). From the above discussion it is very clear that so far the undivided HUF property is concerned, there is no defined share of a coparcener until and unless the property is divided or partitioned. If a decree is obtained against an individual coparcener, his property is liable to be sold in execution proceedings but the purchaser can have his share only by way of affecting partition. (15). In the present case notice under Section 222 of the Income Tax Act is to be given to an assessee in default and authorities can proceed to recover from such assessee the amount specified by one or more modes mentioned i.e. attachment or sale of the assessees movable or immovable properties and arrest or detention of assessee, by appointment of a Receiver for the management of the assessees movable property. No doubt in the present case the assessee is Mr. Prakash Chand Lunia in his individual capacity. Notice given in the present case is not to any other co-parcener or member of the HUF property but it is to Prakash Chand Lunia for recovery of the amount for which he was individualy liable from the property in which he has got a share in HUF. Prakash Chand Lunia in his individual capacity. Notice given in the present case is not to any other co-parcener or member of the HUF property but it is to Prakash Chand Lunia for recovery of the amount for which he was individualy liable from the property in which he has got a share in HUF. If the decree can be executed against the share of a coparcener in HUF property, on the same anology the share of a defaulter in the HUF property is also to be attached. (16). In view of the facts and discussions, it is not denied that the petitioner had a share in the HUF property and a notice for recovery of tax has also been issued to the petitioner in his individual capacity by the Tax Department subject to the final decision of appeal etc. The respondent has issued a notice for auction of the property of the share of the petitioner as it existed at the time of issuing the notice in the HUF property specified in the notice. It can not be said that by attaching the share of the petitioner in HUF property, the respondent has committed any illegality. Ofcourse, if and when such property is ultimately sold in pursuance of the impugned notice, the purchaser shall have only a right of purchase of the share of the petitioner and shall be inducted as one of the share holder in the HUF property which is permitted by law. Such purchaser would be placed in the shoes of the petitioner and can enforce his right lateron by seeking a partition of the property in accordance with law. But so far as the issuing of the notice under the relevant provisions of the Income Tax to the petitioner is concerned, no illegality can be found and writ petition is likely to be dismissed and is dismissed. (17). No order as to costs. @CENT = @CENT =