1978 (4) TMI 59 - HC - Income Tax

Summary

Issues Involved:
1. Whether a Hindu father has a right to bring about a partial partition among his sons inter se as part of his patria potestas and without the consent of his sons.
2. If the answer to question No. 1 is in the affirmative, whether the Tribunal was legally justified in holding that the assessee's claim for recording a partial partition was valid.
3. Whether the Tribunal was justified in allowing the claim for partial partition as per the application of the assessee.
4. What is the legal effect of the order of the Tribunal allowing the assessee's claim for partial partition and, if so, from what date.

Detailed Analysis:

Issue 1: Right of Hindu Father to Bring About Partial Partition
The primary issue was whether a Hindu father, governed by Mitakshara law, has the right to effect a partial partition of family properties among his sons without their consent, as part of his patria potestas. The court found no authority directly addressing this point and referred to ancient texts and authoritative commentaries. The translations of Mitakshara and other texts indicate that the term "partition" refers to the division of the entire estate or aggregate wealth, not a partial partition. The court cited several authoritative texts and judgments, including Colebrooke's Translation of Mitakshara, J.C. Ghose's Commentaries, and decisions like Kandasami v. Doraisami Ayyar and Girja Bai v. Sadashiv Dhundiraj, which collectively suggest that the father's power to partition without the sons' consent pertains only to a complete partition of all family properties. The court concluded that the father's extraordinary power does not extend to making a partial partition without the consent of his sons.

Issue 2: Tribunal's Justification for Partial Partition
Since the answer to the first question was negative, the second issue regarding the Tribunal's legal justification for recognizing the assessee's claim for partial partition did not arise for consideration.

Issue 3: Tribunal's Allowance of Partial Partition Claim
Given the court's conclusion on the first issue, it held that the Tribunal was not justified in allowing the claim for partial partition made by the assessee. The court emphasized that there is neither text, authority, nor principle to support the view that a Hindu father has the right to effect a partial partition without the sons' consent.

Issue 4: Legal Effect of Tribunal's Order
As the answer to the first issue was negative, the question of the legal effect of the Tribunal's order allowing the partial partition did not arise.

Conclusion:
The court answered the reference in favor of the revenue and against the assessee, concluding that a Hindu father does not have the right to bring about a partial partition of family properties among his sons without their consent as part of his patria potestas. Consequently, the Tribunal was not justified in allowing the claim for partial partition. The assessee was ordered to pay the costs of the reference.