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8. In the present case, we are concerned with the situation where in fact and in Hindu law a partial partition had taken place and the asset belongs to and the income actually accrues only to the coparcener to whom the property is allotted. In that context it falls for consideration whether the effect of not recognising the partial partition is that the HUF is deemed to be the owner of the property which is the subject-matter of partition and also the recipient of the income from such property. As we have noted before, there is a direct answer to this question in the Madras High Court judgment which has not been overruled so far. To understand this question, we may take an illustration. Supposing there is a joint family holding certain shares in companies and on a partial partition the shares are allotted to a coparcener. Thereafter the dividend income accrues only to the coparcener and under Section 4 has to be assessed in his hands. No doubt, under Section 171(9), a partial partition will have to be ignored and the assessment continued to be made on the HUF, but when there is no specific provision deeming the dividend income which has accrued to the coparcener as having accrued to the joint family or that such income should be added to the total income of the joint family analogous to the provisions of Section 64, it is difficult to assume that the provision which requires a partial partition to be ignored by itself deems that the income accruing from the divided property to the individual coparcener continues to accrue to the joint family. To continue the illustration further, if the coparcener were to transfer the shares to a stranger, we would be led to the absurd situation of the joint family being assessed on the dividend income from the shares which no longer belongs either to the HUF or even to the coparcener. The situation will be more complicated when a coparcener goes out of the family by partial partition. Section 171 is not a charging section but only a section to facilitate the assessment and collection of the revenue where a joint family is disrupted. It is "only a machinery section for collection of tax--Kalwa Devadattam's case (supra) and CIT v. Kapoorchand Shrimal [1974] 95 ITR 20 (AP). It had provided for three situations, that is, where there is a disruption in the family during the previous year, where there is a disruption in the family before an assessment is made or where there is a disruption after the assessment is made so that the tax on the income assessable in the hands of the HUF could be collected from the coparceners. But the actual charge on the income which could arise to the HUF or be deemed to arise to the HUF has to be found only with reference to Sections 4 and 5 or any other specific provision deeming the income of the coparcener to arise to the HUF or to be included in the total income of the HUF.

Clause (c) of Section 20A provides that the several liability of any member or group of members for the purposes of Clause (b) will be computed according to the portion of the joint family which has been allotted to him at the time of partial partition.

The Explanation to Section 20A seeks to provide that for the purposes of this section, 'partial partition' will have the meaning assigned to it in Clause (b) of the Explanation to Section 171 of the Income-tax Act.

This amendment will take effect from the 1st April, 1980, and will accordingly apply in relation to the assessment year 1980-81.--[1980] 123 ITR (St.) 135-136.

127. It is proposed to derecognise the partial partition of Hindu undivided families taking place after 31st December, 1978. Where any claim is made before the Wealth-tax Officer that a partial partition of the Hindu undivided family which has hitherto been assessed as undivided has taken place after 31st December, 1978, such family will continue to be liable to be assessed under the Wealth-tax Act as if no such partial partition has taken place. Each member or group of members of such family immediately before such partial partition and the family will be jointly and severally liable for the tax, penalty, interest or any other sum payable under this Act by the family in respect of any period, whether before or after the partial partition. The liability attributable to any member or group of members will be computed according to the portion of the joint family property which has been allotted to him at the time of partial partition. For this purpose, the expression 'partial partition' will have the same meaning as in Clause (b) of the Explanation bdow Section 171 of the Income-tax Act, that is to say, 'partial partition', will mean a partition which is partial as regards the persons constituting the Hindu undivided family or the properties belonging to the Hindu undivided family, or both.

11. As we have seen from a perusal of the section itself, there is no express deeming provision treating the income of the divided coparcener as that of the HUF though the section provides for making the assessment on the HUF. We may also consider whether there is any necessary implication of such a fiction. The law favours complete freedom of transfer. For instance, Section 6 of the Transfer of Property Act, 1882 states that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Therefore, coparceners of a HUF are at complete liberty to partition the properties even partially to enable them to deal with their share of the property. Under Section 23 of the Indian Contract Act, 1872, it is only an agreement of which the object or consideration is unlawful that is void. The consideration or object of an agreement is lawful unless it is forbidden by law or is such that if permitted it would defeat the provisions of any law or is fraudulent. The Supreme Court has held even in the latest decision in the case of Apoorna Shantilal Shah (HUF) v. CIT [1983] 141 ITR 558 that partial partition under the Hindu law is permissible and valid. Such a partial partition is neither forbidden by law nor can it be regarded to be fraudulent. It does not also defeat the provisions of any law because Section 171(9) only states that a partial partition will not be recognised and does not state that such a partial partition cannot be made. It does not also defeat any provisions of the Act, because Sub-section (9) itself provides for recovering the tax or other sums payable under the Act from the coparceners even if the family is divided, but assessed in the status of an undivided family. This provision is sufficient to indicate that the section takes note of the factual division of the properties of the HUF even if such a partial partition is not recognised, This is because, according to Clause (d) of Sub-section (9), the several liability of the members of the family is to be computed according to the portion of the joint family property allotted to him on the partial partition. Therefore, instead of there being a necessary implication of a deeming provision to regard the income accruing from the divided properties as that of the undivided HUF, there is in fact an internal evidence in the section itself to show that even if the assessment is made in the name of the undivided faimily, the factual partial partition cannot be ignored and the tax due on the income accruing from the divided properties is to be collected from the coparcener to whom the share is allotted. We may recall that even in the 1922 Act there was a similar provision in proviso to Section 25A(2) which states that the members shall be jointly and severally liable for the tax assessed even though the assessment may be made by deeming the HUF to continue without being partitioned. Hence, in our considered opinion, the position emerging after the amendment of Section 171 by the introduction of Sub-section (9) is identical with the position that obtained at the time when Section 25A provided for recognition of only a complete partition and not a partial partition. Therefore, the decision of the Madras High Court which arose out of that situation equally applies to the present situation and the income accruing from properties which had gone out of the HUF as well as those assets cannot be included in the total income or wealth of the HUF in respect of which assessment may continue to be made without recognising the partial partition.