APOORVA SHANTILAL SHAH versus COMMISSIONER OF INCOME TAX GUJARAT-I, AHMEDABAD

Citation: [1983] 2 S.C.R. 492 · Decided: 03-03-1983 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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APOORVA SHANTILAL SHAH 
v. 
COMMISSIONER OF INCOME TAX 
GUJARAT-I, AHMEDABAD 
March 3, 1983 
[P. N. BHAGWATI AND AMARBNDRA NATH SEN, 'JJ.J " 
Partial partition- lVhether the father in exercise of his right as "patrla 
potestas" or otherwise can effect a pa,tial partition between himself and his minor 
so1',_s of joint family properties of a Hindu Joint Family governed by the Mitakshara 
School of Hindu Law-Income Tax Act, 1961, Section 171. 
The assessee 
is a Hind undivided Family consisting of four members, 
namely, Sri Apoorva Sbantilat Shah, his wife Smt. Karuna and their minor sons 
Chintan and Tejat. During 
the 
assessment pertaining to the assessment year 
1975-76. Shri 
Apoorva as a Karta of the H.U.F. made an application to the 
Income Tax Officer for recognising partial partition under S. 171 of the Income 
.Tax Act, 1961 (hereinafter referred to as the Act) claiming that two partial parti· 
tions 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. The Ince.me Tax Officer refused 
to· record them for three reasons. namely (i) the partitions have not been made at 
the instance of the minor sons; (ii) after making certain allocations in favour of 
the two minor sons, the remaining shares were not allotted in their entirety to the 
remaining third coparcener, namely Apoorva separately or Apoorva 
and Smt. 
Karunajointly describing them as H.U.F'. and (iii) the distribution of 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 Apoorva's wife Karuna also 
became entitled to an equal share on partition between the father and sons. The 
appeal preferred before the Assistant Appellate Commissioner was accepted. The 
further appeal, by Revenue to the Income Tax Appellate Tribunal was allowed 
since the Tribunal was of the opinion that the 
partial partitions in the instant 
case, being outside the framework of the Hindu Law could not be recognised as 
valid for the purposes 6f Section 171 of the Income Tax Act. All the questions 
referred to in the reference under Section 256 (1) to the High Court were answer-
ed against 
the 
assessee. The High Court held that under Hindu Law the 
father has no power or authority to effect any partial partition of joint family 
properties 
between himself and &his minor sons. Hence the appeal by speci~l 
Jeave. 
AHowing the appeal, the Cour~ 
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APOORVA SHANTILAL v. c.1.r. 
493 
HELD : J. I. Partial Partition of the shares belonging to the Hindu 
A 
undivided Family cannot be said to be bad either under the Hindu Law or under 
the Indian Income Tax Act. [514 H, SIS A] 
1.2. Partial partition of properties brought about by the father between 
himself and his minor sons is valid and binding under the Hindu Law. This right 
of the father to effect a partial partition of joint family properties between himself 
and bis minor sQDs, whether in exercise of bis superior riaht as father or in exer-
cise of the right as patria poles/as has neqessarily (_to be exercised bona fide by the 
father and is subject to the right of the sons to challenge the partition, if the parti-
tion is not fair and just. [Sll C·E] 
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1.3. The 
right of the father to bring about the disruption nf the joint 
family properties in exercise pf his superior right, as fathCt" or 
of 
his rights as 
patria potestas is recognised in ancient Hindu Law. [509 D-E] 
1.4. The stand taken by the High Court to the effect that the propo,ition 
laid 
down 
by judicial decisions to the effect that partial partition of a joint 
Hindu family qua some joint family properties or qua some members of 
the 
joint family is permissible and valid in law, will apply only when partial partition 
is f':ffected with the consent of the members of joint family and cannot be extended 
to a case when partial partitiori is sought to be brought by father in exercise of 
his superior rights as father or his right as patria potestas is incorrect. (509 F-H] 
If the father in exercise of his superior 
right 
or of bis right as patria 
potestas in 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 bis -minor sons eve

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