TMI Blog1981 (9) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... itted the affidavits having been sworn by the other members. They deposed in the affidavits that on partial partition a sum of Rs. 3,05,000 dad been divided on 1st Aprill, 1976 as under: . Rs. Shri Rashmikant Jain (Karta) 5,000 Smt. Sumedha (Wife) 1,00,000 each Master Mehul (Minor son) . Kumari Monisha (Minor daughter) . The partial division was claimed to have been made by debiting the capital account of the HUF in the books of M/s R.Y. Durlabhji and crediting the divided amount to the respective accounts of the members. Deed of partial partition purporting to have been executed on 1st April, 1976 was duly furnished. In cl. 1 of the said deed, it was stated that the Karta of the HUF had divided on 1st April, 1976 a sum of Rs. 3,05,000 out of Rs. 5,29,500,08 standing to the credit of the HUF in the books of account of the firm M/s R.Y. Durlabhji. The ITO refused to accept the said partial partition observing "The Karta, in the exercise of his rights as Patria potastas could not have carried out the partial partitions. Further, he himself could not give consent on behalf of his minor children to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition was a result of mutual agreement and that the karta having not obtained any valid consent of the members of the family, no valid partition was made in this case. To come to the conclusion that a partial partition cannot be made without the consent of the coparceners, the Hon ble Madhya Pradesh High Court relied on the commentary of Mulla s Hindu Law on s. 328. which in turn was based on the decisions of the Privy Council and the Supreme Court. One of the principles which was deduced from such decisions was as follows: "Though a partition may be partial by mutual consent of parties, no coparcener can by suit enforce a partial partition against the other coparceners. The suit must be one for complete partition". Commenting on the aforesaid principle, the Madhya Pradesh High Court observed in first paragraph on p. 584 as follows: "No doubt this is in the context of a suit for partition but it is not unreasonable to infer that a partial partition requires mutual agreement of all the parties and cannot be made against their will even though a complete partition can be enforced by one coparcener against the will of the remaining coparceners". In second paragraph on 589, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lways coincide. He, therefore, rejected the assessee's claim of partial partition. According to the Calcutta High Court, the whole controversy rests on the facts whether the division of some of the joint Hindu family assets between a new small joint Hindu Family and the members of the family are tenable and whether the new small Hindu Family could be separated with regard to certain assets only. The Calcutta High Court observes on p. 519 in second paragraph as under: "The partition in Hindu law is effected by a definite and unequivocal indication of a coparcener s intention to separate. Similarly, a partial partition is effected by a definite and unequivocal indication of the coparcener to partition a particular business or property of the joint family leaving the other assets as joint family property. There father as patria potestas can effect a partition in the family if he considers the same to be in the interest of the family. There was no suggestion that such partition was, in any case made against the interests of the minors. An aggrieved member of the coparcenary can question such a partition but not a third party, namely, the IT Deptt. As regards the issue raised in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Since the family consisted of the karta, wife and the minors, it is the karta only who being a father can safeguard the interests of the minors. We, therefore, hold that the ITO was not right in observing at the karta himself could not have given consent on behalf of minor children to the partial partition being to advantage of the minor children and on the facts and circumstances of the case, the karta himself being the father, would have been care of the interest of the minors. We hold that the ITO was not right in saying the karta being a father could not have given the consent on behalf of the minor children. 4. There is yet another decision of Hon ble Punjab High Court is the case of Naraindass Wadhwa (1980) 14 CTR (P H) 99 : (1980) 123 ITR 281 (P H) which has a direct bearing on the instant case. In this case also, partial partition was made among the members of the HUF consisting of Shri Krishanlal Wadhawa, his wife Smt. Sita Devi and two minor sisters. A sum of Rs. 60,000 was divided among the members of the family. The ITO rejected the claim of partial partition, as he was of the view that there must be atleast two coparceners for the purposes of effecting a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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