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TMI Blog1978 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in allowing the claim for partial partition as per the application of the assessee ? (4) What is the legal effect of the order of the Tribunal allowing the assessee's claim for partial partition and, if so, from what date ?" The assessee is a HUF of which Seth Gopaldas of Ichhawar is the "karta". The relevant assessment year is 1964-65, for which the accounting period ended on Diwali, 1963, i.e., October 20, 1963. The assessee was assessed as a HUF up to the assessment year 1963-64. For the assessment year 1963-64, an application was made on July 6, 1963, under s. 171 of the Act, for recording a finding of total partition in respect of this HUF. However, that application was rejected and the assessee's claim of total partition was not recognised. For the relevant assessment year 1964-65, initially a claim for recognising a total partition within the family was made by the assessee but subsequently by an application dated September 16, 1967, filed by Seth Gopaldas under s. 171 of the Act, a claim was made for recording a partial partition only, which prayer was reiterated by Mahendra kumar, a major son of Seth Gopaldas, by another application made on January 16, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on October 23, 1962, and October 27, 1962. Obviously because of this discovery as a result of which the partition made on October 23, 1962, and October 27, 1962, could not be treated as a total partition, a claim for recording partial partition only under s. 171 of the Act was made by Seth Gopaldas in place of the original prayer for recording a total partition. His eldest son, Mahendra Kumar, having also become major by then, another application for the same purpose under s. 171 of the Act was made on January 16, 1969, by Mahendra Kumar. The question which arose before the ITO, on these facts, was whether in a 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 consent of his sons. This was the main question necessary for disposal of the application made under s. 171 of the Act by the assessee for recording a finding of partial partition. The ITO, by his order dated March 24, 1969, rejected the assessee's claim of partial partition made in this manner. On appeal by the assessee, the AAC by his order dated August 13, 1969, upheld the ITO's order for the same reasons and added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self, whether one, two or more sons." (Ch. I, Sec. II, Paras 1 2) In the analysis given after translation of the text, the meaning of "partition" is stated as under : "Partition is the adjustment of diverse rights extending over the whole estate, to specific portions of the same." S. S. Setlur's Translation of Hindu Law on Inheritance : "Partition (vibhaga) is the adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several ownership." (Ch. I, Sec. I, para 4) J. C. Ghose's Commentaries on Principles of Hindu Law, First Edition, Vol. II : "Partition (vibhaga) is the adjustment of diverse rights regarding the whole, by distributing them on particular portions of the aggregate." (Ch. I, Sec. I, Para 4) The above extracts taken from authentic translations of the ancient text show that in defining "partition" use of expressions "whole", "aggregate" and "aggregate wealth" has been made. Similarly, in analysis of Colebrooke's Translation, the expression used is "whole estate". These expressions used while giving the meaning and explaining "partition" clearly indicate that the texts contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... When a father wished to become a vanaprastha (hermit), or an ascetic.........partition would suggest itself as the obvious solution...... Apastamba apparently required that the father should, during his lifetime, divide his wealth equally amongst his sons prior to his becoming an ascetic or a hermit." : "A Hindu father under the Mitakshara law can, it has been held, effect a partition between himself and his sons without their consent and this is rested on the Mitakshara I, ii, 2. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se ". "In all these cases, the father's power must be exercised bona fide and in accordance with law ; the division must not be unfair and the allotments must be equal". Mulla's Principles of Hindu Law (14th Edn.): "The father of a joint family has the power to divide the family property at any moment during his life, provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to make a complete partition and not merely a partial partition in respect of the properties. The question of testing the validity of a partition made by the father on this basis can arise only where the partition is total and not where it is only partial in respect of some of the properties. It is clear from the text that this limit on the father's power is imposed and is intended to be a check at the time when he is making the partition. Thus, this is another indication in the text that the partition contemplated to be made by the father in the exercise of his extraordinary power without the consent of his sons was intended only to be a total partition in respect of all the family properties. Some authoritative decisions may now be referred to. The father's power of making a partition together with its origin and the object thereof was authoritatively laid down by the eminent judge Muttuswami Ayyar J. in Kandasami v. Doraisami Ayyar [1880] ILR 2 Mad 317, 321, which continues to be a leading case on the point. Some relevant extracts from the judgment are as under : "According to the Hindu law it is competent to a father to make a partition during his life, and the partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as under : "In Hindu law, 'partition' does not mean simply division of property into specific shares ; it covers, as pointed out by Lord Westbury in Appovier's case [1866] 11 MIA 75, 76, 78 (PC), both 'division of title and division of property'. In the Mitakshara, Vijnaneswara defines the word 'vibhaga', which is usually rendered into English by the word 'partition', as the 'adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate'. Mitra Mishra explains in the Viramitrodaya the meaning of this passage : he shows that the definition of Vijnaneswara does not mean exclusively the division of property into specific shares as alone giving right to property, but includes the ascertainment of the respective rights of the individuals, who claim the heritage jointly. He says (Sarkar's translation, Ch. I., s. 36) : 'For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares.' " In Alluri Venkatapathi Raju v. Dantuluri Venk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st patriarchal family which has for long changed into the joint family giving equal right to the sons with their father. The origin of that power and the object for which it was given to the father, i.e., "when he was about to sever his connection with the family as its head either by becoming a religious anchorite or a resigned recluse" in the words of that great judge, Muttusami Ayyar J., is also now most often not the reason for its exercise. These are also factors which indicate that there is no justification for enlargement of this extraordinary right of the father as patria potestas so as to include within it something which was originally not within its ambit. A partial partition of the properties which leaves some properties for subsequent division, wherein the father also would have a share, is obviously inconsistent with the avowed object for which this extraordinary power was given to the father. The view that a complete partition of the properties and a total severance of the father's shares therefrom is alone permitted in this manner, is more consistent and in conformity with the origin and object of this extraordinary power given to the father. Shri K. A. Chitale, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the I.T. Act, 1961, introduces the fiction that an assessee which has been assessed as a HUF shall be deemed for the purposes of the Act to continue to be a HUF till a finding of partition in respect of the family has been given under this section. Sub-section (2) permits a claim of partition, whether total or partial, among members of such family, to be made before the ITO who is then enjoined to make an enquiry into the claim. This is where the new Act permits also a claim of partial partition in the family to be made whereas under s. 25A of the old Act a claim of total partition alone was permissible. Sub-s. (3) then requires the ITO to record his finding on completion of the enquiry as to whether there has been a total or partial partition of the joint family property, and, if so, the date on which it has taken place. Obviously, the enquiry contemplated is to find out whether the claim is in respect of a genuine and valid partition, total or partial. It is this finding of the ITO which is referred to in sub-s. (1). Sub-sections (4) and (5) deal with the mode of assessment in different situations where the finding of total or partial partition has been recorded by the ITO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily property without the consent of the sons cannot be made by the father in exercise of his right as patria potestas. The contents of s. 171 of the I.T. Act, 1961, the gist of which we have already indicated, also do not warrant a different conclusion and there is nothing in the section to support Shri Chitale's argument. The decision in M. S. M. M. Meyyappa Chettiar v. CIT [1950] 18 ITR 586 (Mad), which was in the context of s. 25A of the Indian I.T. Act, 1922, is of no assistance. The facts of that case clearly show that the decision is distinguishable. Therein, the minor sons were represented by their mother and guardian at the partition which was made with the consent of the minor's guardian. That was, therefore, not a case of a partial partition made by the father without the consent of his sons in exercise of his right as patria potestas, the question which arises for our decision in the instant case. For this reason, the question relating to the validity of a partial partition made by the father without the consent of his sons neither arose for decision of the Madras High Court nor was it decided therein. The real question involved in that case was whether an unequal part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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