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TMI Blog1962 (2) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... being a minor represented by his mother and natural guardian, Bhawani Debi. In the agreement it is stated that Tolaram and his sons, Hinumanmall, Naurathmall and Surajmall, constituted a Hindu undivided family and Routhmall and his sons, Keshrichand, Motilal and Chhatarsingh, constituted another Hindu undivided family and that these two Hindu undivided families were carrying on business in partnership under an agreement dated November 24, 1937, under the name and style of Rupchand Routhmall. It is further stated in the July, 1950, agreement that the two Hindu undivided families were partitioned and there was an agreement of partition on March 30, 1950. It was stated in the agreement of July, 1950, that for the benefit of the minors it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tolaram and Routhmall who admitted the adult sons as partners were kartas of the erstwhile Hindu undivided families as well as of the truncated Hindu undivided families and that the minors were not partners and, therefore, the firm was entitled to registration. On these facts the following question of law has been referred: Whether on a proper construction of the deed of partnership dated July 21, 1950, the assessee was a firm entitled to registration under section 26A of the Indian Income-tax Act and with effect from July 21, 1950? Counsel for the Commissioner contended, firstly, that by the document of partnership minors were in fact shown as having shares in the business, secondly, that it was impossible to ignore the minors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the mother's share could not be relinquished in favour of her husband and three sons including the minor. It is true that in the agreement for partition it is stated that the father will remain joint with the minor son and further that in the partnership agreement of July 21, 1950, it is stated that the father is entitled jointly with his minor son to a four annas share but it was contended that it does not mean that there is a joint family. After there has been severance of the joint family by a general partition there has to be an agreement to reunite and a minor cannot enter into an agreement to reunite. Therefore, counsel for the Commissioner contended that the minor could not claim to have reunited and become a joint famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d family has been divided among the parties. The result in m y opinion is that there is a severance of the joint family and there is division of the shares and thereafter the father and the minor son remain joint in a loose sense for the sake of convenience. Clause 6 of the partition agreement states that the minor remained joint with his father and that the minor's share of capital and profit shall be amalgamated and credited to the account of the father. In this context the words jointly with his minor's son in the partnership agreement show that the minor has a share in the partnership but the extent of it is not specified in the partnership agreement. The law is stated in Mulla's Hindu Law, 12th edition, paragraph 315, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion between the father and the minor son. Therefore, after severance of the joint family the minor acquires a share. To hold that in the partnership agreement the father held shares in his individual capacity and as karta is to deny the minor's share and to make a new agreement contrary to the real agreement between the parties. In the case of Commissioner of Income-tax v. Dwarkadas Khetan Co. [1961] 41 ITR 528 ; [1961] 2 SCR 821it was held that an agreement under which a minor who was admitted as a partner sharing in the profits and bearing losses could not be registered under section 26A of the Income-tax Act. It is true that in Dwarkadas Khetan's case (supra), the minor was a signatory to the instrument whereas in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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