1. At the instance of the Commissioner of Income Tax, the Income Tax Appellate Tribunal, Patna Bench "B", has referred the undermentioned question for the opinion of this court:

"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in allowing registration to the firm "

2. The question, as its very frame indicates, relates to registration of the firm which is the opposite party here. The assessment year is 1972-73. The application for registration was duly filed along with the partnership deed. The partnership deed indicated the names of the partners as Smt. Satya Banaik, Smt. Vinod Banaik and Sardar Gurnam Singh. The recital in the partnership deed about the second named partner, namely, Smt. Vinod Banaik was as under :

"Smt. Vinod Banaik, wife of Shri Satish Kumar Banaik, by occupation painter and housewife representing the HUF constituted of herself and her husband, Shri Satish Kumar Banaik."

3. The ITO refused the claim for registration on two grounds : (1) Smt. Vinod Banaik could not become the partner of a firm as representative of the HUF; and (2) the two lady partners were already running another firm as partners and that, therefore, by entering into a partnership here, it was a firm which was entering into a partnership. This was wholly illegal.

4. The registration having been refused, the firm appealed and the AAC held that the partnership agreement was between three individuals who had signed the partnership deed as partners individually. The two ladies had not entered, into the partnership as representing another partnership. The AAC, therefore, allowed registration to the firm.

5. The department then appealed to the Appellate Tribunal, which confirmed the AACs order holding that it was the lady herself, who was the partner as far as the firm was concerned and it could not be held that the HUF as such became the partner. The Tribunal having confirmed the order of the AAC, the department being aggrieved his got the aforesaid question referred for the opinion of this court. In fact, the question which the Commissioner wanted to be referred was in the following terms, namely :

"Whether, on the facts and in the circumstances of this ease, the Tribunal were correct in law in allowing registration to the firm in spite of the fact that the lady who was legally incompetent to represent the HUF when the karta was there, entered into a partnership in a representative capacity on behalf of the HUF "

6. The Tribunal found that the question as suggested was rather argumentative and, therefore, the question, as stated above, has been referred for the opinion of this court.

7. Mr. Rajgarhia, appearing for the department, has laid stress on the recitation in the partnership deed relating to the capacity in which Smt. Vinod Banaik had joined the partnership. According to him, she had joined it as representing the HUF. This she could not do. In support of his argument, he has relied on a decision of the Madras High Court in the case of V. M. N. Radha Ammal v. CIT : [1950]18ITR225(Mad) , which decision was approved by the Supreme Court in the case of CIT v. Seth Govindram Sugar Mills : [1965]57ITR510(SC) .

8. I think the proposition, as put forth by learned counsel for the department, is not at all the proposition arising in the case. Smt. Vinod Banaik had entered into the partnership not in the capacity of a karta of an HUF but as a representative of the HUF. There is a clear difference between the two, namely, "acting as karta of a Hindu undivided family" and "acting as its agent or representative" ; whereas a female cannot be karta of an HUF, there is no bar for her to represent the family as its agent. The two decisions, which have been referred to by learned counsel for the department are on the point, inter alia, that a Hindu female is not a coparcener and has no legal qualification to become a karta of a Hindu joint family. So far as this proposition is concerned, it is indisputable, but this propostion has hardly any relevance to the points in issue in this case.

9. On the facts as stated, the real question is if a female enters into a partnership and describes herself as representative of an HUF, whether the claim for registration of such a partnership was allowable. To put it in a simpler way, whether a female can represent or be an agent of an HUF in a partnership. There is no law, to our knowledge, which prohibits a female from representing the family ; of course, she cannot be the karta of the family, but in matters which concerns the family, to our mind, there is no law which prohibits a female from acting on behalf of the family. The Supreme Court in the case of CIT v. Hukumchand Mannalal and Co. : [1970]78ITR18(SC) was seized with the question as to whether by reason of the fact that two or more partners of the firm were members of the HUF, representing the interest of the family, the partnership became valid. While answering the question in the negative, their Lordships observed thus (P- 21):

"The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual : it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is, under Section 4 of the Partnership Act, the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all I if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. It is now settled law that in considering an application for registration of a firm, the Income Tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests."

10. A female is as good a member of the HUF as a male, of course, with certain limits, in the sense that she cannot become the karta of the family, nor can she be a coparcener. These limits, however, do not disable her from acting in the capacity of a member of the family and enter into a contract of partnership with the permission of the family, for the family.

11. We are, therefore, of the view that the reasons assigned by the ITO for rejecting the claim for registration of the partnership deed was invalid.

12. We may further observe that the AAC went into the question as to who were the real partners in the partnership firm and found it as a fact that the three persons, who had signed the partnership deed as partners, were the partners. That being the position, in fact as also in law, the question referred for the opinion of this court must be answered in the affirmative and against the department. The assessee will be entitled to costs. Hearing fee Rs. 250.