As karta and father I divided some family shares between myself and my minor sons. Can the officer refuse to record the partial partition because the shares are unequal?
No. The Supreme Court held that a father may effect a partial partition of joint family property between himself and his minor sons, in exercise of his superior right as father or as patria potestas, and that such a partition is valid under Hindu law. It does not become invalid because the shares are unequal; an aggrieved son may challenge it, and until a competent court holds it invalid it stands. The officer may enquire whether the partition is genuine and refuse recognition if it is sham, but cannot refuse it for unequal division. The appeal was allowed.
Decided by the Supreme Court (Supreme Court of India; P.N. Bhagwati and Amarendra Nath Sen JJ. Judgment by Sen J) on 1983-03-03, reported as (1983) 141 ITR 558; 1983 (2) SCC 155; AIR 1983 SC 409; 1983 SCR (2) 492; 1983 SCC (Tax) 111. It bears on section 171, section 171(9), section 256(1) of the Income Tax Act 1961, in Assessment & Scrutiny matters.
For the years it governs this is the complete answer to the three objections officers took to a father's partial partition: that the minors did not ask for it, that the residue was not allotted to a single coparcener, and that the division was unequal. The Court's reasoning is a fortiori: if a father can disrupt the family and effect a total partition even against the wishes of his minor sons, his power cannot be confined to total partitions, and as their natural guardian he can ordinarily give the consent the High Court thought was missing. It also fixes the officer's role under section 171: he may enquire into genuineness, and nothing more. Note the limit. Section 171(9), inserted with effect from 1 April 1980, bars recognition of a partial partition after 31 December 1978, and the Court expressly set that sub-section aside as having no application to the year before it.
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The assessee was a Hindu undivided family of four: Apoorva Shantilal Shah, his wife Karuna and their two minor sons. For assessment year 1975-76 Apoorva, as karta, applied under section 171 to have two partial partitions recorded, one of 24 December 1973 covering 200 shares of Gujarat Steel Tubes Ltd and the other of 29 December 1973 covering a further block of shares of the same company. The Income-tax Officer refused to record them on three grounds: that the partitions had not been made at the instance of the minor sons; that after allotting shares to the two minors the remaining shares had not been allotted in their entirety to the remaining coparcener; and that the distribution was not equal. The Appellate Assistant Commissioner allowed the appeal, finding that taking earlier allocations into account the shares had been distributed equally. The Tribunal allowed the Revenue's appeal, holding that a partial partition of this kind fell outside the framework of Hindu law. On a reference the Gujarat High Court answered against the assessee, holding that a father has no power to effect a partial partition between himself and his minor sons.
The appeal was allowed, the High Court's judgment set aside, the partial partition held valid, and the Income-tax Officer directed to recognise it and assess on that footing, without costs. A partial partition of joint family property brought about by the father between himself and his minor sons is valid and binding under Hindu law, whether it is done in exercise of his superior right as father or of his right as patria potestas. That right must be exercised bona fide and is subject to the sons' right to challenge a partition that is not fair and just. Section 171 as it then stood recognised partial partition, the Explanation defining it as a partition partial as to persons or as to properties or both. Unequal distribution does not invalidate a partial partition; until a competent court holds it invalid it must be treated as valid. The officer may enquire into genuineness and may refuse recognition of a sham or fictitious partition, but here there was no such finding.
The Court began from the position in ancient Hindu law that the father may bring about a disruption of the joint family in exercise of his superior right or as patria potestas. The High Court had accepted that partial partition of some properties or between some members is permissible, but confined that to partitions made with the consent of the members, and held that consent was impossible where minors were involved. The Court rejected the limitation. If the father can effect a complete partition even against the wishes of his minor sons, his authority cannot be confined to total partitions; and even on the consent test, the father as natural guardian of the minors will normally be able to give it, since it cannot be assumed as a universal proposition that a partition, partial or total, sets his interest against theirs. The protection lies elsewhere: the father must act bona fide, and the sons may impeach the partition on attaining majority, or during minority through a proper guardian, if it was made to their detriment. Charandas Haridas and Kalloomal Tapeswari Prasad were followed. Turning to the statute, the Court set out section 171 and its Explanation, which expressly define and recognise partial partition, and noted that sub-section (9) inserted by the Finance (No. 2) Act, 1980 was not in existence in the relevant year and had no retrospective operation. Since the partition was valid under Hindu law and there was no finding that it was sham or had not been acted upon, section 171 required it to be recognised.
Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid.
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Handle my notice → Ask a CA on WhatsAppNo. The Supreme Court held that a father may effect a partial partition of joint family property between himself and his minor sons, in exercise of his superior right as father or as patria potestas, and that such a partition is valid under Hindu law. It does not become invalid because the shares are unequal; an aggrieved son may challenge it, and until a competent court holds it invalid it stands. The officer may enquire whether the partition is genuine and refuse recognition if it is sham, but cannot refuse it for unequal division. The appeal was allowed. This was decided by the Supreme Court (Supreme Court of India; P.N. Bhagwati and Amarendra Nath Sen JJ. Judgment by Sen J) and bears on section 171, section 171(9), section 256(1) of the Income Tax Act 1961. It is reported as (1983) 141 ITR 558; 1983 (2) SCC 155; AIR 1983 SC 409; 1983 SCR (2) 492; 1983 SCC (Tax) 111. For the years it governs this is the complete answer to the three objections officers took to a father's partial partition: that the minors did not ask for it, that the residue was not allotted to a single coparcener, and that the division was unequal. The Court's reasoning is a fortiori: if a father can disrupt the family and effect a total partition even against the wishes of his minor sons, his power cannot be confined to total partitions, and as their natural guardian he can ordinarily give the consent the High Court thought was missing. It also fixes the officer's role under section 171: he may enquire into genuineness, and nothing more. Note the limit. Section 171(9), inserted with effect from 1 April 1980, bars recognition of a partial partition after 31 December 1978, and the Court expressly set that sub-section aside as having no application to the year before it. If it applies to you, the first step is this: Check the date first. A partial partition after 31 December 1978 cannot be recognised under section 171, and this case does not help.
The assessee was a Hindu undivided family of four: Apoorva Shantilal Shah, his wife Karuna and their two minor sons. For assessment year 1975-76 Apoorva, as karta, applied under section 171 to have two partial partitions recorded, one of 24 December 1973 covering 200 shares of Gujarat Steel Tubes Ltd and the other of 29 December 1973 covering a further block of shares of the same company. The Income-tax Officer refused to record them on three grounds: that the partitions had not been made at the instance of the minor sons; that after allotting shares to the two minors the remaining shares had not been allotted in their entirety to the remaining coparcener; and that the distribution was not equal. The Appellate Assistant Commissioner allowed the appeal, finding that taking earlier allocations into account the shares had been distributed equally. The Tribunal allowed the Revenue's appeal, holding that a partial partition of this kind fell outside the framework of Hindu law. On a reference the Gujarat High Court answered against the assessee, holding that a father has no power to effect a partial partition between himself and his minor sons. The matter was decided on 1983-03-03 by the Supreme Court (Supreme Court of India; P.N. Bhagwati and Amarendra Nath Sen JJ. Judgment by Sen J). On those facts the Supreme Court held as follows. The appeal was allowed, the High Court's judgment set aside, the partial partition held valid, and the Income-tax Officer directed to recognise it and assess on that footing, without costs. A partial partition of joint family property brought about by the father between himself and his minor sons is valid and binding under Hindu law, whether it is done in exercise of his superior right as father or of his right as patria potestas. That right must be exercised bona fide and is subject to the sons' right to challenge a partition that is not fair and just. Section 171 as it then stood recognised partial partition, the Explanation defining it as a partition partial as to persons or as to properties or both. Unequal distribution does not invalidate a partial partition; until a competent court holds it invalid it must be treated as valid. The officer may enquire into genuineness and may refuse recognition of a sham or fictitious partition, but here there was no such finding.
The Court began from the position in ancient Hindu law that the father may bring about a disruption of the joint family in exercise of his superior right or as patria potestas. The High Court had accepted that partial partition of some properties or between some members is permissible, but confined that to partitions made with the consent of the members, and held that consent was impossible where minors were involved. The Court rejected the limitation. If the father can effect a complete partition even against the wishes of his minor sons, his authority cannot be confined to total partitions; and even on the consent test, the father as natural guardian of the minors will normally be able to give it, since it cannot be assumed as a universal proposition that a partition, partial or total, sets his interest against theirs. The protection lies elsewhere: the father must act bona fide, and the sons may impeach the partition on attaining majority, or during minority through a proper guardian, if it was made to their detriment. Charandas Haridas and Kalloomal Tapeswari Prasad were followed. Turning to the statute, the Court set out section 171 and its Explanation, which expressly define and recognise partial partition, and noted that sub-section (9) inserted by the Finance (No. 2) Act, 1980 was not in existence in the relevant year and had no retrospective operation. Since the partition was valid under Hindu law and there was no finding that it was sham or had not been acted upon, section 171 required it to be recognised. In the words reproduced by the source cited on this page: "Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid."
It was decided by the Supreme Court on 1983-03-03 and is reported as (1983) 141 ITR 558; 1983 (2) SCC 155; AIR 1983 SC 409; 1983 SCR (2) 492; 1983 SCC (Tax) 111. Binding on every court and authority in India. A Supreme Court decision binds every assessing officer, every Commissioner (Appeals), every bench of the Income Tax Appellate Tribunal and every High Court in India. An officer who declines to follow it is acting contrary to law, and that refusal is itself a ground of appeal. On section 171, section 171(9), section 256(1), the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The appeal was allowed, the High Court's judgment set aside, the partial partition held valid, and the Income-tax Officer directed to recognise it and assess on that footing, without costs. A partial partition of joint family property brought about by the father between himself and his minor sons is valid and binding under Hindu law, whether it is done in exercise of his superior right as father or of his right as patria potestas. That right must be exercised bona fide and is subject to the sons' right to challenge a partition that is not fair and just. Section 171 as it then stood recognised partial partition, the Explanation defining it as a partition partial as to persons or as to properties or both. Unequal distribution does not invalidate a partial partition; until a competent court holds it invalid it must be treated as valid. The officer may enquire into genuineness and may refuse recognition of a sham or fictitious partition, but here there was no such finding. It arises in Assessment & Scrutiny matters, on section 171, section 171(9), section 256(1) of the Income Tax Act 1961, and was decided by Supreme Court of India; P.N. Bhagwati and Amarendra Nath Sen JJ. Judgment by Sen J. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Where the case is about an earlier partition still under examination, meet an objection about unequal shares by pointing out that inequality goes to the son's remedy, not to validity, and that the officer's enquiry is confined to genuineness. Expect the enquiry to be about whether the partition was real and acted upon, so keep the share transfer records, the dividend receipts afterwards and the family arrangement itself. If shares were divided unequally, be able to show the father acted bona fide in the interest of the minors, taking earlier allocations into account, as was found here.
Superseded by amendment. The Hindu law reasoning stands, but the tax result does not survive for later years. Section 171(9), inserted with effect from 1 April 1980, provides that a partial partition after 31 December 1978 shall not be enquired into or recorded, that the family continues to be assessed as undivided, and that members remain jointly and severally liable. The Court set that sub-section out and held it inapplicable to the year before it. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The harvested page is clipped: a block from the middle is not reproduced, containing much of the Court's review of the Hindu law texts and authorities on the father's power to partition. The facts, the statutory provisions, the reasoning on unequal shares and on the officer's role, and the operative order are all present. The page also carries a reporter's headnote above the judgment, which has been disregarded. The number of shares in the second partition is garbled in the source and is therefore not given. The Court did not decide the wife's entitlement to a share on a partition between father and sons, which was one of the officer's grounds. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeal was allowed, the High Court's judgment set aside, the partial partition held valid, and the Income-tax Officer directed to recognise it and assess on that footing, without costs. A partial partition of joint family property brought about by the father between himself and his minor sons is valid and binding under Hindu law, whether it is done in exercise of his superior right as father or of his right as patria potestas. That right must be exercised bona fide and is subject to the sons' right to challenge a partition that is not fair and just. Section 171 as it then stood recognised partial partition, the Explanation defining it as a partition partial as to persons or as to properties or both. Unequal distribution does not invalidate a partial partition; until a competent court holds it invalid it must be treated as valid. The officer may enquire into genuineness and may refuse recognition of a sham or fictitious partition, but here there was no such finding.
TaxSphere, “Apoorva Shantilal Shah v CIT”, https://taxnotice.vittsphere.com/caselaw/case/apoorva-shantilal-shah-v-cit-partial-partition-by-father/ (validity last checked 2026-08-29)
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The family's only income-producing right is the karta's share in a managing agency, which cannot be split among the members. They divided the commission between themselves. Is that a partition the department must accept?
The department is ignoring a partial partition my client's family made in April 1979, even though the Income-tax Officer recognised it and gave the family the benefit of it in that very assessment year. Is there any authority that the recognition once given must stand?
Our family made a partial partition in the early 1980s — we divided some of the properties but stayed joint as to the rest — and the Assessing Officer has recognised it in past assessments. He is now assessing the whole income in the HUF's hands and says the partial partition never counted. Is he right?
My father died and I am now the only male member of our family, with my mother and unmarried sisters. Must the family income be assessed on me as an individual?
