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TMI Blog1990 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, the Tribunal was correct in law in upholding the, assessee's claim of partial partition ? 2. Whether, on the facts and circumstances of the case, the Tribunal was legally correct in holding that the indenture dated April 22, 1971, created sub-partnership ? 3. Whether, in view of the finding that there was a genuine partial partition which brought about an overriding title in favour of the members, the Tribunal was right in coming to the conclusion that it was a case of sub-partnership attracting the provisions of the Income-tax Act ? 4. Whether the Tribunal was right in its interpretation of the deed dated 27th of April, 1971, and upholding that it was a partnership deed and not merely a document containing a recital of partia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by and standing to the credit of the smaller Hindu undivided family represented by him. (Rs. 70,100.06) has been divided in equal shares between him and his wife, Smt. Uma Devi, and three sons, viz., Ravi Nath, Rajiv Nath and Rakesh Nath, the latter two being minors. His contention was that the share income of his wife or his minor sons, cannot be clubbed with his income under section 64 of the Act. The facts relating to the smaller Hindu undivided family of Jagdish Prasad are similar. But so far as Vishwamitra's branch is concerned, there was no minor on the date of partition. One of the five members of the smaller Hindu undivided family, however, Sri Virendra Kumar, was a person of unsound mind and was represented by his father, Vishwami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h ... Rs. 14,020.01 Rakesh Nath 1/5th ... Rs. 14,020.01 and whereas as a result of such partition each member had become the exclusive owner of the said money and the share allotted to his/her share in partition to the exclusion of the others and hereafter the share derived from the said firm, R. S. Janki Pershad and Sons, shall belong to Shri Rajendra Nath, Smt. Uma Devi, Ravi Nath, Rajiv Nath and Rakesh Nath each having 1/5 share except that in case it is a loss the same shall be shared equally by Shri Rajendra Nath, Smt. Uma Devi and Ravi Nath. A mention of the said partition also occurs in the cash book of the said Hindu undivided family started for this purpose and relevant entries in respect of the above have also been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act would be attracted in so far as the income received by the wife and minor sons are concerned. Against this decision of the Appellate Assistant Commissioner, both the assessees and the Department went in appeal to the Income-tax Appellate Tribunal. The Tribunal confirmed the findings and conclusion of the Appellate Assistant Commissioner. It would be appropriate to quote the operative portion of the Tribunal's judgment in Rajendra Nath's case which runs as under : "These appeals were heard by us along with similar cross appeals filed in the case of Shri Vishwamitra. The two similar appeals filed by the Department ITA Nos. 1703 and 1705/Ald/1975-76 have been disposed of by us by order dated 16-6-1976. The facts and the contentions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid questions to be stated for the opinion of this court. According to the Mitakshara school of Hindu law, a karta/father is entitled to effect partition of joint family property between himself and the other members of the family. This right is not affected by the presence of minor members in the joint family. Even if a member of the joint family is of unsound mind, he may be represented by a guardian and a valid partition may be effected. That is what precisely has happened in this case. In the case of the smaller Hindu undivided families of Rajendra Nath and Jagdish Prasad, there were minors while, in the case of Vishwamitra's Hindu undivided family, one of the sons of Vishwamitra was of unsound mind and was represented by his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u undivided family too, an identical recital is found (to the effect that the person of unsound mind shall not be liable for loss), yet that clause is liable to be ignored in law. Section 30 of the Partnership Act which provides for admission of a minor to the benefits of partnership, does not apply or extend to a person of unsound mind. There is no other provision of law whereunder a person of unsound mind can be admitted to the benefits of partnership. If he is admitted as a partner, he would also be liable for losses. We, therefore, ignore the said clause in the case of the Hindu undivided family of Vishwamitra. It may also be noticed that section 64 of the Act does not apply to the income received by a person of unsound mind. Section 64 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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