TMI Blog1982 (8) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... income-tax case of the assessee, the said claim of the partial partition was rejected by the ITO. The amount alleged to have been partitioned was credited alleged to have been partitioned was credited in the names of various coparceners with the firm M/s Jagdamba Sellac Corpn., Gondia. As the claim of partial partition has been negatived the balance in the names of the members of the assessee family with the said firm as on the valuation date was included in the net wealth of the assessee. 3. As against this order of the WTO the assessee went up in before the AAC. The AAC following the order of the AAC. A, Range, Nagpur, date 6th Feb., 1981 ITA No. 38. GA/79/80 held that the partial partition is valid and directed the WTO to revise the assessment by excluding the investment in the firm. 4. As against this order of the AAC the Revenue is in before us. The learned counsel for the assessee at the outset relied on the decision of this Bench of the Tribunal in ITA No. 176 (Nag)/81 for the asst. yr. 1979-80 in the case of ITO vs. Radheshyam Pyarelal Agrwalal, Gondia, wherein this Bench of the Tribunal after elaborate discussion held that the partial partition is valid and upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family, no guardian shall be appointed for the minor in respect of such undivided interest except by the High Court. On these grounds it was submitted that the father had no power of effect partial partition of the joint family property by giving consent on behalf of the minor. 5. The ld. Advocate for the assessee, on the other hand, submitted that the facts in the case of Gujarat High Court were distinguishable. According to him in the aforesaid decision of the Gujarat High Court the partition was in unequal proportions and the court held that such a partition could not be said in the interest of the minor. He further submitted that s. 6 applies only to the individual properties of the minor and does not extend to the joint family interest of the minor. If s. 6 is r/w s. 12, the latter referring the interest of the minor in the joint family property, it would be clear that the father's guardianship of the minor's interest in the joint family property could not be interfered with except by the court. Sec. 8(2) of the Hindu Minority and Guardianship Act place restrictions on the natural guardian dealing with the immovable property of the minor. There were no restrictions on mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial partition. Since later developments of the Hindu law included partial partition also, in the ambit of partition we have to accept the proposition that there is nothing invalid in partial partition. We have then to examine under what conditions the two types of partitions could be brought about. If a father could bring about a complete partition of the joint family properties can we say that his powers are fettered with regard to partial; partition and if so what is the authority for holding that the father is powerless to enforce partition of a part of the property while he has full power to enforce complete partition. It would at first blush appear not logical to say that the father has full powers of bringing about a complete partition while he has no such powers of bringing about a partial partition which can be brought about only with the consent of coparceners. Logically one would assume that once the law recognises partial partition as possible it has to be placed on the same pedestal as full partition. The position, therefore has to be examined with reference to decided case laws. 7. In the light of the above proposition, we proceed to examine the decision of the Madh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case before us there is a further refinement that such consent has been given by father acting on behalf of the minor as his guardian. Hence in effect what has happened in this case is, a partial partition has been brought about with the consent of all the coparceners while the Calcutta High Court said that such consent on behalf of the minor was not necessary. It appears to us that Gujarat and Madhya Pradesh High Court did not consider there question whether consent could be obtained on behalf of the minor. We have, therefore to hold that the partial partition is valid. Further if we examine the provisions of s. 6 and. 8(1), (2) and (3) and ss. 11 and 12 of the Hindu Minority and Guardianship Act, we are of the opinion that such sections determine the natural guardians of a minor in respect of his property except the undivided interest in the join family property. Therefore, s. 6 has no application. Since s. 8 refers to the power of the natural guardian and s. 6 determines the natural guardian in respect of the individual property of the minor, the latter section does not throw any light on how the interest of the minor in the joint family property could be dealt with. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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