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TMI Blog1981 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... j Kumar, Master Pankaj being minor at the relevant time was not legally competent to five his consent for partial partition. Keeping in view the ratio of decision in the case of CIT vs. Seth Gopaldas (HUF) 1978 CTR (MP) 246 : (1979) 116 ITR 577 (MP) the order passed by the ITO on 20th Feb., 1979 u/s 171 appears to be erroneous and prejudicial to the interest of revenue. Accordingly notice u/s 263 was issued. Before the CIT the assessee inter-alia contended as under : "That the claim for partial partition was genuine and bona fide; it was very rightly accepted by the ITO after deep and thorough enquiry with all aspects of the claim; the decision of the Madhya Pradesh High Court in the case of Seth Gopaldas (HUF) was distinguishable on facts of the present case. There is a consent of guardian on behalf of the minor at the time of effecting the partial partition; that according to Hindu law the father is competent to make partition and the partition so made binds his sons; that the Hon ble High Court while deciding the said case did not take into consideration the ratio of decision in the case of Charandas Haridas Anr. vs. CIT (1960) 39 ITR 202 (SC). It was also contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith himself as well as amongst his sons inter se without their consent. In this decision it was also held that the partition can be partial qua person and property but a partition which follows disruption of a joint family status will be amongst those who are entitled to a share on partition. Thus it was contended that the finding of the CIT is not correct. 6. The ld. D.R. supported the order of the ld. CIT and contended that on the face of the order passed by the Hon ble Madras High Court it cannot be said that the order passed by the ITO u/s 171 is not erroneous and prejudicial to the interest of the revenue. 7. We have considered the rival submissions and perused the entire material on record. So the only point for determination in the present appeal is whether the decision in the case of Seth Gopaldas is applicable on the fact of the present case or not. 8. The relevant facts of the case of Seth Gopaldas may be stated here. The assessee (HUF) of which Seth Gopaldas was Karta was running two shops known as M/s Ramkishan Dhanraj and M/s Ramkishan Hemraj. Hemraj died leaving behind his widow, Harkuwarbai and no issues. Harkuwarbai then adopted Hiralal as her son who died iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Kumar, having also become major by then, another application for the same purpose u/s 171 of the Act was made on 16th Jan., 1969 by Mahendra Kumar. 9. The question which arose before the ITO on this fact was whether the HUF governed by Mitakshara, the father s right as patria potestas extended to making even a partial partition between himself and his sons, without the constant of his sons. This was the main question necessary for disposal of the application made u/s 171 of the Act by the assessee for recording a finding of partial partition. 10. In the present case it is common ground that the father effected partial partition with the consent of his sons at the relevant time. The partial partition was made by the Karta of the HUF consisting of himself, his wife and his minor sons. A deed of partition was executed by the Karta and the wife in the capacity of mother and guardian of minor sons. The partial partition was effected of the 75 shares of the HUF in the partnership. The ITO after making due enquiry accepted the same. In the present case the partition deed was signed by the Karta for himself on behalf of his minor sons. Whereas no such signature on behalf of the mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ede or be simultaneously taken with partition of property by metes and bounds. But he has no right to make a partition by will of joint family property amongst various members of the family except of course, if it could be made with their consent." 12. At page 1181 the Supreme Court ruled as under : "Partition can be partial qua person and property but a separate which follows disruption of a joint family status will be amongst those who are entitled to a share on partition." So this decision of the Supreme Court impliedly superseded the decision rendered by the Hon ble M.P. High Cout in the case of Seth Gopaldas. This view was also taken by the ITAT Nagpur Bench in ITA Nos. 503 504/79 for the asst. yr. 1976-77. Copy of Tribunal s order is in the paper book. Before the Tribunal in that case it was also argued that in the case of Kalyani it was held that the partition such as in the case of the assessee was a valid partition. It was also contended that to that extent the decision of the Hon ble M.P. High Court in the case of Seth Gopaldas was superseded. This argument was accepted by the Tribunal. We may also point out that at page 388 of Hindu Law by Raghavachariar (6th Edi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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