Appeal No 156 of 1971
From the Judgment and Order dated 19 10 1970 of the Gujarat High Court in Special Civil Appln
No 117770
BRL Iyengar SK Dholakia and RC Bhatia for the appellant
BBAhuja for respondent No 1
The Judgment of the Court was delivered by UNTWALIA J
The appellant s writ petition filed in the High Court of Gujarat was dismissed in limine by a Bench of the High Court on October 19 1970
The Commissioner of Income tax Gujarat II respondent No 1 was the authority against whom several reliefs had been claimed in the writ petition
Subsequently were added the other members of the family of the appellant as respondents to the writ petition
The appellant obtained a certified from the High Court for appeal to this Court under sub clause b of clause 1 of Article 133 of the Constitution of India as it stood before the 30th Constitution Amendment Act
Hence tills appeal to this Court
Having heard Mr BRL Iyengar Senior Advocate for the appellant at some length we found that the appellant was ill advised to file the writ petition and to
pursue the matter upto this Court
The appeal being devoid of any substance must fail
We proceed to state the facts and discuss the points urged before us very briefly
One BapalaI Purshottamdas Modi was the head of a Hindu Undivided family
The joint family possessed many immovable properties and carried on business of various types such as money lending etc
Bapalal had five sons namely Vadilal Ramanlal Jayantilal Gulabchand and Kantilal
Ramanlal died long ago in or about the year 1933
Jayantilal died in 1956
The appellant is one of the sons of Jayantilal
The appellant s case in the writ petition was that Bapalal was the karta of the Hindu Undivided family
He executed a general power of attorney on October 5 1948 in favour of his third son Gulabchand to manage his Bapalal s separate property
On October 22 1954 Bapalal relinquished his right title and interest in the joint family properties on taking a sum of Rs 75000 leaving the corpus and management of the joint family properties to his four sur viving sons and Rajnikant son of late Ramanlal
These five members also executed a memo of partition on October 24 1954 disrupting the erstwhile Hindu Undivided family and partitioning the properties
In course of the proceedings for assessment of the income tax for the assessment year 1955 56 against the Hindu Undi vided family of Bapalal Purshottamlal Modi an application under Section 25A of the Income tax Act 1922 was made claiming partition wef October 24 1954
Notices of the enquiry under section 25A were served on all the members of the family
At the enquiry the statements of various persons including the appellant were recorded by the Income tax Officer
He by his order dated January 28 1960 disallowed the 114 claim under section 25A of the Income tax Act 1922
It is asserted that in the year 1961 a suit for partition had also been filed and the City Civil Court Ahmedabad passed a decree for partition on June 30 1965
In an appeal filed before the Appellate Assistant Commissioner from the order of the Income tax Officer dated January 28 1960 reliance was placed on the Civil Court partition decree also
The Appellate Assistant Commissioner however dismissed the appeal by his order dated September 30 1965
A second appeal to the Income tax Appellate Tribunal was dismissed on March 28 1969
InCometax assessment was made against the Hindu Undivided family for the year 1955 56
Assessments were also made against the Hindu Undivided family sometimes treating it as Association of Persons or Unregistered Part nership Firm as per returns filed from time to time for the subsequent years upto the assessment year 1965 66
Copies of all the assessment orders were enclosed with the writ petition aS Annexure I  collectively
Appeals taken to the Tribunal from some of the assessment orders were also dismissed
Notices were being issued and served under sections 22 and 23 of the Income tax Act 1922 for the assessment years which were governed by the said Act
In respect of the assessment years 1962 63 onwards notices were
issued and served under sections 142 and 143 of the Income tax Act 1961
A large sum of tax and penalty became due as the demands from time to time were partly paid
The Income tax authorities took steps for realization of the income tax dues against the appellant s family and got attached various properties
In Civil Suit No 806 of 1961 in which the preliminary partition decree was passed on June 30 1965 respondent Kantilal had been appointed as a re ceiver Later on one Mr Bhatt was appointed Receiver
A Savings Bank Account No 412002 was being operated by the Receiver
The Income tax Officer attached the entire amount of Rs 5629443 in the said account by his orders dated May 12 1970
Thereupon the appellant filed the writ petition challenging the various orders passed in the pro ceeding under section 25A of the Income tax Act 1922 the assessments made for the years 1955 56 to 1965 66 and the attachment orders on various grounds
In a single writ petition rambling allegations were made challenging the multifarious proceedings and the orders on various ground s and the following prayers were made a declaring void and illegal and quashing the proceedings of the income tax authorities making assessments on Hindu Undivided Family Association of persons and unregistered partnership firm afore said for the years beginning from the assessment year 1955 56 and also the proceedings for the recovery of the taxes so assessed and b quashing the orders of the income tax Au thorities refusing to record partition and direct ing the Respondent and his Subordinates to record under Section 25A of the Act that the erstwhile joint family property has been divided or parti tioned in definite portions each member getting an equal share on October 1954 115 c directing the respondent and his subordi nates to cancel or withdraw the impugned orders and all steps taken for the recovery of the amounts so
assessed d directing the respondent and his subordi nates not to take any further steps for the recov ery of the tax so assessed e quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid f quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955 56 onwards and g to pass such other and further orders as your Lordships deem just and expedient in the circurm stances of the case
 It seems to us that the High Court rightly dismissed the appellant s petition in limine
Since the valuation under Article 1331b was beyond Rs 20000  the appellant was granted a certificate as a matter of course
It was pointed out to
the appellant s counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only
Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account
While doing so he traversed the entire allegations in the petition by adopting an ingenious method
Counsel submitted that the attachment had been made for realization of the income tax dues based upon various orders which were void and ultra vires
All those orders could be attacked collaterally while attacking the attachment order
Mr Iyengar urged the following points insupport of the appeal
1  That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act 1922 were without jurisdiction and on their face suffered from many infirmities of law
2 That after Bapalal relinquished his inter est in the joint family properties and ceased to be the karta there was no karta of the family
Gulabchand a junior member of the family could not act as a karta
Other members of the family did not accept him to be the karta
3 That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi a dead person and hence the entire proceedings and assessment orders were nullities
116 4 That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings
None of the points urged on behalf of the appellant merits any detailed discussion
We were taken through the power of attorney executed by Bapalal in favour of Gulabchand the deed of relin quishment executed by him on October 22 1954 and the alleged memorandum of partition of October 24 1954 the orders of the Income tax officer the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act 1922
In our opinion
the orders do not suffer from any infirmity of law or any such defect which will make them void
Notice of the enquiry had been given to all the members as admitted by the appellant himself
He had been examined in the proceedings
Sub section 3 of Section 25A pro vides
that where an order accepting partition had not been passed in respect of a Hindu family as sessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family
A partition preliminary decree came much later
The income tax authorities had their own view to take
They were not bound by the decree
No reference was taken under the income tax Act challenging the order of the Tribunal dismiss ing the appeal
It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban
At the relevant time no body disput ed his authority to act as karta
His eldest brother Vadilal was an old man of about 70 years of age
His eider brother Jayantilal father of the appellant died in the year 1956
In these circum stances he appears to have acted as the karta with consent of all the other members
A junior member of the family could do so
See Mulla s Hindu Law 296 fourteenth edn
Where occurs the following passage So long as the members of a family remain undivided the senior member of the family is entitled to manage the family properties includ ing even charitable properties q and is presumed to be the manager until the contrary is shownr
But the senior member may give up his right of management and a junior member may be appointed managers 
 Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi
They were neither issued to nor served on Bapajal the dead person
In response to the notices returns were being filed by the managing member of the family
At no stage before the income tax authorities a contention was raised that the notice was served on a dead person
There is no substance in the third point
Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assess ment made in respect of the income of his family which continued in the eye of law to be joint
The share 117 of the appellant s properties received by him from the joint family or the income thereof is liable for the income tax dues in question
The appellant as we have said above was ill advised to file a misconceived petition on wholly un tenable grounds
In the result the appeal fails and is dismissed with costs to respondent No 1
SR Appeal dismissed


Summary:
Bapalal Purshottamdas Modi was the karta and head of a Hindu Undivided Family possessing many immovable properties and carrying on business of various types including money lending
Bapalal had five
sons viz Vadilal Ramanlal Jayantilal Gulabehand and Kantilal out of whom Ramanlal and Jayantilal predeceased him in 1933 and 1956 respectively and the appellant was one of the sons of Jayantilal
As per the general power of attorney dated 5 10 1948 executed by Bapalal in his favour Gulabchand the third son was acting as a karta and was filing the various tax returns without any objection
whatsoever by the other members of the Hindu Undivided Family
Bapalal relinquished all his rights in the joint family property on 22 1054 leaving the corpus of the joint family properties to his four surviving sons and Rajnikant son of Ramanlal
All of them executed on 24 10 54 a memo of partition disrupting the Hindu Undivided Family and partitioning the properties the course of the proceedings of the income tax assessment for the assessment year 1955 56 against the HUF of Bapalal Purshottamlal Modi an application under section 25A of the Income Tax
Act 1922 claiming partition was made
The claim was disallowed by  the ITO by his order dated 28 1 1960
During the pendency of the appeal a suit for partition was filed in 1961 and a decree for partition was obtained on June 30 1965
The appeal to the Appellate Assistant Commissioner was dismissed on September 30 1965 and the second appeal 10 the Income Tax Appellate Tribunal was also dismissed on March 28 1969
The appellants did not ask for a reference to the High Court as provided under the Act but went on filing the returns in respect of the subsequent assessment years
When the Income Tax Officer got attached the entire amount in the Savings Bank Ac towards the tax liability by an order dated May 12
1970 the appellant filed a writ petition challenging the various orders passed in the pro ceedings under section 25A for the assessment years 195566 to 1965 66 and the several attachment orders
The High Court dismissed the writ in limine but granted a certificate under article 1331b of the Constitution
Dismissing the appeal the Court HELD 1 Sub section 3 of section 25A provides that where an order accept ing partition had not been passed in respect of a Hindu Undivided Family assessed as undivided such family shall be deemed for the purposes of the Act to con tinue to be Hindu Undivided Family
The Income Tax Officers who had their own view to take were not bound by the de cree since in the instant case the partition preliminary decree came much later and there was no reference under the Income Tax Act challenging the order of the Tribunal
116 C D 2 A junior member of the family can with the consent of all the other members
act as a karta if the senior member gives up his right
116 E 113