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TMI Blog1982 (6) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... n that partial partition, the capital of the assessee HUF, namely, Rs. 30,000.25 p. Was said to have been divided in four equal shares between Kashi Ram, his son and grand son. The ITO after holding enquiry refused to recognise the said partition on the ground that the wife of Babulal was not given any share in the partial partition. The partition is held to be against the principles of Hindu Law. The ITO held that such a partition cannot be recognised. He relied upon the commentary in Mulla s Hindu Law at 403 where the ld. Author speaking about the rights of a wife in a Mitakshara family belonging to the northern part of the country summarised the legal position as follows: "A wife cannot herself demand a partition, but if a partition do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to refuse recognition to such a partition. The AAC found no force in it. He found that at least the evidence of the wife to the effect that she has no objection for the partition was not secured into the record by the assessee HUF and, therefore, he held that the order of the ITO refusing recognition to the partition would set up before him in quite legal and valid. Thus, he found no merit in the appeal and had dismissed it by his order dt.31st January 1981. 4. Further aggrieved, the assessee came up in second appeal before this Tribunal and thus the matter stands before us. We have heard Sri. B.L. Gupta, the ld. Counsel for the assessee and Sri. S.C. Tewari, the ld. Departmental representative for the revenue. It is argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower authorities as well as the position of law enunciated under Mulla s Hindu Law, already quoted above. Further he tried to distinguish the judgment of the Hon ble Allahabad High Court cited on behalf of the assessee by stating that in the facts of the said case, no member of the joint family was left out without being given any share. The only point considered by the Hon ble Allahabad High Court in that case was whether allotment of share to an outsider of the family renders the partition void. However, in this case, the fact remains that a member of a joint family who is lawfully entitled for a share was altogether left out of consideration. Thus in his submission this is the distinguishing feature between the facts of the case in ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, if the ration fully covers the case on hand. In our view, the ratio laid down by the saidAllahabaddecision was that even though a partition may be voidable at the instance of a member of the family affected by it, still the department has no locus standi to hold that such a partition was void ab initio. We are of the view that the AAC went wrong in not appreciating the ratio of the Allahabad High Court s decision correctly and went wrong while applying it to the facts on hand. Ultimately, we are of the view that the partial partition dt.19th July 1979 filed by the assessee HUF before the ITO should be recognised by the ITO. 7. In the result, we set aside the orders of the lower authorities, allow the appeal and direct the ITO t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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