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TMI Blog1983 (11) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 between the karta and his widowed mother. The ITO rejected this claim on the ground that there could not be a partition between mother and son since there was only one coparcener in the HUF relying upon the decisions in the cases of CIT v. Shantikumar Jagabhai [1976] 105 ITR 795 (Guj.) and Pushpa Devi v. CIT [1977] 109 ITR 730 (SC). 2. The Commissioner (Appeals) in a very detailed order considering several High Courts and Supreme Court decisions held that the partial partition should have been accepted by the ITO and allowed the appeal. Before us copies, inter alia, of the 'agreement dated 12-12-1973' and 'Memorandum' in support of agreement to prove the partition have been filed. On behalf of the revenue copies of affidavits dated 4-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act, 1961, the partition is recognised between 'members'. Therefore, according to him, it is not necessary that for the purpose of the Act they should be coparceners. In other words, we are invited to discover a new Hindu law for the purpose of the Act. We decline this invitation. Further, a distinction was sought to be drawn from the decision in Shantikumar Jagabhai's case by pointing out that this is not a case of partition by metes and bounds and this was a partition at the instance of the karta and not of the mother. In reply, the learned departmental representative emphasised that the affidavits cannot be brushed aside. He urged that the interest paid to the HUF on the loans should, therefore, be added. He also said that since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there should not be any suspicions in anybody's mind about this partial partition and there may not arise any complication in future, we have thought it fit to enter into agreement and to prepare a 'Memorandum' so as to form part of this agreement. Accordingly, we have today made this agreement and also the memorandum along with this which is acceptable and binding to us all the parties irrevocably. This agreement in this way is made by us both the parties after reading and understanding the same and without anybody's undue influence willingly, in sound physical and mental conditions which is acceptable and binding to us both the parties and our heirs and legal representatives. The two parties mentioned above are the karta Rameshchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,25,000 with interest thereon at the rate of 12 per cent per annum." The affidavit of the karta is in the same terms. 6. We have been given copies of the accounts of the HUF Chhotalal Manekchand for Samvat Year 2029 and from that it is seen that from out of the capital of Rs. 3,60,921.66, an amount of Rs. 2,50,000 was withdrawn and as the account started 'credited to Sheth Mohanlal Chhotalal's Hindu Undivided Family Partial Partition of Capital Account dated 26-10-1973'. On the debit side of this partial partition of capital account the entry is as follows : Dr............................................................................. Rs. 2,50,000 Sheth Mohanlal Chhotalal's Hindu Undivided Family partial partition of capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, a female member of a joint family has no right to demand a partition or to get a share in her own right. It also held that since there was no other coparcener in this HUF, there was no question of a partition by metes and bounds being effected and least of all the mother could get a share on such a partition and that it was not open to the mother in her capacity as a guardian of the minor son to effect a partition between herself and the minor. The partition was, therefore, held to be not effective. 10. However, in Narain Dass Wadhwa's case the Punjab and Haryana High Court was concerned with a case where an HUF consisted of an adult male as karta, his mother and two sisters. The partition of amount invested by this HUF in a firm was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson. The agreement and memorandum produces a legal consequence, namely, family arrangement as stated above. That legal consequence remains as it is. An affidavit can contain only a statement of fact and it cannot prevent a legal consequence. This is the position in law. The result goes in favour of the assessee but that is merely incidental. Therefore, the department's Appeal No. 139 (Ahd.) of 1980 is rejected. 13. IT Appeal Nos. 1394 (Ahd.) of 1980 and 543 and 2078 (Ahd.) of 1981 are regarding the additions of the income from the sums received on partition by Rameshchandra and Bai Dhangauri in the firm of Rameshchandra Co. The ITO has added them in the income of the assessee since he did not recognise the partition. The Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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