9911796707
TMI Blog1993 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... comprising Rashmikant Jain as karta, Smt. Sumedha, wife, and master Mehul (minor son), and Kumari Monish (minor daughter). The assessee-Hindu undivided family filed its return for the assessment year 1977-78 on June 21, 1977, in which below the computation chart the following note was given : "that there was a partial partition on April 1, 1976, of Rs. 3,05,000 amongst the members of the Hindu undivided family. As such, order under section 171 may be passed". The Income-tax Officer issued notices to the other members of the Hindu undivided family and the affidavits of these members were submitted, in which they have admitted the fact of partial partition and the amount was divided and a sum of Rs. 5,000 came to the share of Shri Rashmikant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consent of coparceners and he has no power to make a partial partition without the consent of the other coparceners is not applicable. The decision of the Privy Council laying down the principle "that though the partition may be partial by mutual consent of the parties, no coparcener can by suit enforce a partial partition against the other coparceners. The suit must be one for complete partition", was also taken into consideration. On the basis of the decision of the Madhya Pradesh High Court the principle that the partition can be effected with the consent of all the sons of the coparceners and whether or not the karta can give consent on behalf of the minor son, reliance was placed on the decision of the Calcutta High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e family. The Tribunal observed that there is evidence to show that a definite and unequivocal intention was there on the part of the members of the family to effect a partial partition, which is clearly borne out from the affidavits and the interest of the minors was safeguarded by their father and the action of the partial partition was also in accordance with law. The additions of interest made were accordingly deleted. The controversy now is settled by the decision of the apex court in Apoorva Shantilal Shah v. CIT [1983] 141 ITR 558 which reads as under : "If the father in exercise of his superior right or of his right as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of the joint family and its members feels that a partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally, be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does not act bona fide in the matter when he effects a partition of the joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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