The main legal principle established in the judgment is that a father, as the natural guardian of minor sons, has the authority to effect a partial partition of joint family properties between himself and his minor sons, subject to exercising this right bona fide and in the best interest of the family members.

( 1 ) THE Tribunal has referred the following question of law under Section 256 (1) of the IT Act, 1961, hereinafter referred to as the Act, for opinion to this Court :

"whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the alleged partial partition of the l/3rd share of the assessee-HUF in the capital of the firm M/s Singhasini Engineering Works, 3/2, Vishnupuri, Kanpur, on 1st April, 1976 ?"

( 2 ) DURING the course of assessment proceedings for the asst. yr. 1977-78, the assessee, Dharam prakash HUF, claimed that a partial partition took place on 1st April, 1976 in respect of its l/3rd share in the capital of the firm M/s Singhasini Engineering Works. The HUF consisted of the karta, Shri Dharam Prakash, his wife, Smt. Kamini Srivastava, his three daughters and his minor son Rohitesh. The partial partition was said to have taken place between Dharam Prakash smaller HUF consisting of himself on the one hand and his three daughters and his wife and minor son on the other hand. A memo of partial partition was also executed on 2nd April, 1979. The ITO observed that since a minor son is not in a position to give consent and the wife is not a coparcener competent to claim partition under the Hindu law, no partial partition could be effected amongst the Karta, his wife and his minor son. He also held that one of the parties to the partial partition, namely, the smaller HUF consisting of the Karta and his three daughters was illegal ab initio. He accordingly, rejected the claim of partial partition.

( 3 ) THE assessee came up in appeal before the AAC. The AAC did not agree that the consent given by the Karta on behalf of his minor son in his capacity as his natural guardian was valid. He also held that the partial partition was not proper since the minor was required to bear l/3rd share in the profit and loss of the assessees share in the firm which meant that the minor was also required to bear the losses.

( 4 ) THE assessee preferred an appeal before the Tribunal. The Tribunal upheld the claim of the assessee and granted approval to the partial partition claimed by it.

( 5 ) WE have heard Sri Dhananjay Awasthi, learned counsel appearing for the Revenue, and Sri gaurav Mahajan, on behalf of the respondent-assessee.

( 6 ) THE question as to whether Karta can give effect to the partition of the HUF, which consists of minor son, has-been settled by the Honble Supreme Court in the case of Apoorva Shantilal Shah (HUF) v. CTT, (1983) 141 ITR 558 (SC ). The Honble Supreme Court has held as follows :

"if the father in exercise of his superior right or of his right as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against the wishes of the minors and if a partial partition be permissible with the consent of sons when they have all become major, we see no reason to limit the power or authority of the father to effect the partition only to a case where the partition is total. The superior right or the right of patria potestas which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly of his minor sons. The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of the joint family properties between himself and his minor sons even against the will of the minor sons and when partial partition under the Hindu law is now accepted and recognised as valid by judicial decisions, we fail to appreciate on what logical grounds it can be said that the father who can bring about a complete partition of the joint family properties between himself and his minor sons will not be entitled to effect a partial partition of the joint family properties between himself

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