1982 (8) TMI 141 - AT - Wealth-tax

Summary

Issues Involved:

1. Validity of partial partition effected by the assessee.
2. Inclusion of the balance in the names of the members of the assessee family in the net wealth of the assessee.
3. Applicability of the Hindu Minority and Guardianship Act to the partial partition involving a minor.

Detailed Analysis:

1. Validity of Partial Partition Effected by the Assessee:

The Revenue contested the appeal on the ground that the AAC erred in holding that the partial partition effected by the assessee is valid, thus deleting the addition of Rs. 52,939. The cross-objection filed by the assessee supports the AAC's order. The assessee claimed a partial partition on 11th Nov., 1977, which was rejected by the ITO under s. 171 of the IT Act, 1961. The AAC, following a previous order, held that the partial partition is valid and directed the WTO to revise the assessment by excluding the investment in the firm. The Tribunal upheld the AAC's order, referencing a similar case (ITA No. 176 (Nag)/81) where the partial partition was deemed valid.

2. Inclusion of the Balance in the Names of the Members of the Assessee Family in the Net Wealth of the Assessee:

The ITO included the balance in the names of the family members with the firm M/s Jagdamba Sellac Corpn., Gondia, in the net wealth of the assessee, as the partial partition claim was rejected. The AAC's direction to exclude this investment was upheld by the Tribunal, as the partial partition was validated.

3. Applicability of the Hindu Minority and Guardianship Act to the Partial Partition Involving a Minor:

The Revenue argued, citing the Gujarat High Court's decision in Appoorva Shantilal Shah vs. CIT, that partial partition could not be effected by the father in respect of an HUF consisting of himself and his minor son, as ancient Hindu Law did not recognize partial partition. The Gujarat High Court emphasized that partial partition requires free consent from all HUF members, which a minor cannot provide. The Calcutta High Court, however, in CIT vs. Hoshiari Lal Kalyani, held that the question of consent does not arise for minors. The Tribunal noted that the Gujarat High Court did not consider the Calcutta High Court's decision and concluded that partial partition is valid under later developments in Hindu law.

The Tribunal examined the Madhya Pradesh High Court's decision in CIT vs. Seth Gopaladas (HUF), which stated that partial partition requires the consent of all coparceners. The Calcutta High Court clarified that consent from minors is unnecessary as they are incapable of giving it. The Tribunal concluded that the father's consent on behalf of the minor, as his guardian, is valid, and the partial partition is legitimate.

The Tribunal also considered the provisions of the Hindu Minority and Guardianship Act, concluding that sections 6 and 11 do not apply to the undivided interest of a minor in joint family property. Section 12 allows the father to manage the minor's interest unless displaced by the court. The Tribunal upheld the AAC's order, confirming the validity of the partial partition.

Conclusion:

The appeal filed by the Revenue is dismissed, and the cross-objection of the assessee is dismissed as infructuous. The Tribunal confirmed the AAC's order, validating the partial partition effected by the father on behalf of the minor and excluding the investment in the firm from the net wealth of the assessee.