Judgment

AMARENDRA NATH SEN, J.:- The Principal question for decision in this appeal by Special Leave is whether the father in exercise of his right as patria potes as or otherwise can effect a partial partition between himself and his minor sons of joint family properties of a Hindu joint family governed by the Mitakshara School of Hindu law.

2. The assessee, a Hindu undivided family (hereinafter referred to as H. U. F.), which consists of four members, namely, (1) Shri Apoorva Shantilal Shah, (2) his wife Smt. Karuna and their minor sons, (3) Chinton and (4) Tejal, is the appellant before us. The members of the H. U. F. are governed by the Mitakshara School of Hindu law. The assessment year in question is the year 1975-76, During the assessment pertaining to the assessment year under consideration, Shri Apoorva who is the father of the minor sons and husband of Smt. Karuna and the Karta of the H. U. F. made an application to the Income-tax Officer for recognising partial partition under Section 171 of the Income-tax Act. 1961 (hereinafter referred to as the Act), claiming that two partial partitions had taken place amongst the members of the said family, one on 24-12-1973 in respect of 200 shares of Gujarat Steel Tubes Ltd. and the other on 29-12-1973 in respect of 1777 shares of the same company.

3. On enquiry the Income-tax Officer (hereinafter for the sake of brevity referred to as I. T. O.) found that the partial partitions had been embodied in memoranda of agreement of partition. The I. T. O. however, refused to record that there had been a partial partition of joint family properties, as he was of the view that partial partitions in question could not be recognised inasmuch as the remaining shares, after making certain allocations in favour of the two minor sons were not allotted in their entirety to the remaining third coparcener, namely, Shri Apoorva, separately or to Shri Apoorva and his wife Karuna jointly, describing them as members of the H. U. F. The I. T. O. further held that the said partitions did not purport to have been made at the instance of the minor children, as this course would require the approval of the Court but the same had been purported to have been made at the instance of Shri Apoorva. The I.T. O. hinted in the order that the distribution of the shares had not been made equally either amongst the three members including the two minor sons or amongst the four members of the H. U. F., as Apoorvas wife Karuna also became entitled to an equal share on partition between the father and the sons.

4. Against the order of the I. T. O. the assessee H. U. F. presented an appeal before the Appellate Assistant Commissioner (hereinafter referred to as A. A. C. for the sake of brevity). The A. A. C. allowed the appeal and held that there had been genuine partial partitions between the coparceners in respect of the said shares. The A. A. C. held that it was not necessary to obtain Courts sanction even in a case where some of the parties to the partition were minors. As regards the point that the distribution of share-holdings had not been made on equal basis, the A. A. C., taking into consideration some earlier partitions, came to the conclusion that the distribution had been equally made. The A. A. C. further observed that even if the distribution had not been made on equal basis that would not affect the validity of the partitions in question and the minor sons, if they felt aggrieved in this regard, could on attainment of majority seek to avoid the said partitions.

5. Aggrieved by the order of the A. A. C., the Revenue went up in appeal to the Income-tax Appellate Tribunal (referred to as Tribunal hereinafter for the sake of brevity) to challenge the A. A. C.s recognition of the said partitions. The Tribunal held for reasons recorded in the order that partial partitions in the instant case were outside the frame. work of the Hindu law and as such they could not be recognised as valid for the purposes of Section