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Reference is also made to paragraph 458 of Mayne's Book on Hindu Law and Usage for contending that agreement between the parties is a sine qua non.

3. The powers of patria potestas are confined mainly to the power to sever the status of the joint family as-a whole. Judge. made law which has recognised partial partition has attempted to extend the ancient, feudal archaic patriarchal powers of patria potestas to joint families so as to include the power of partial partition with the consent of the parties. There could be no justification for now extending it, particularly as the legislature itself, as per the Finance Act (2) 1980 w.e.f. 1,4.80 has de-recognised partial partition altogether. Sub- section (9) has been added to S. 171 of the Act and by this provision partial partition of a HUF effected after 31.12.78 will be de-recognised for income-tax purposes and this sub- section has been incorporated with the object of curbing the creation of multiple HUF by making partial partitions. Where a HUF is taxed in the status of HUF it will continue to be taxed as such unless there has been a total partition of the family properties by metes and bounds and an order to that effect is recorded by I.T.O.

It is, however, well settled by judicial decisions 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. The High Court appears to have accepted this position but the High Court then proceeds to hold that the proposition laid down by judicial decisions with regard to partial partition will apply only when partial partition is effected with the consent of the members of the joint family and cannot be extended to a case where partial partition is sought to be brought about by father in exercise of his superior rights as father or his right, as patria potestas. On an anxious and careful consideration of the matter we are unable to agree with the view expressed by the High Court.

If the father in execise 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 family consisting of himself and his minor sons even against the wishes of the minors and if 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 tho 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 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 even against the will of the minor sons. It is also now recognised that partial partition of joint family properties is permissible. When father can bring about a complete partition of 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 joint family properties between himself and his minor sons if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does not act bona fide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority, the minor sons through d proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interests.

The other question which falls for determination is whether the partition can be said to be bad at the time of the partition there was no equal division of the shares by the father amongst himself and his minor sons and a part of the share holding had not been distributed to the father or to the father and mother jointly. We may point out that the A.A.C. has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will act bonafide in the interest of the joint family and 13 its members, bearing in mind in particular the interests of the minor sons. If however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the Income-tax Authorities to consider a partial partition to be invalid on tho ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the Income-tax officer before recognising the partition to come to a conclusion on proper enquiry whether tho partition is genuine or not. If the Income-tax officer on enquiry comes to a finding that the partition is sham or fictious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the Income-tax officer, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of S. 171 of the Income-tax Act and the assessment must be necessarily made on the basis that there is Partial partition of the said shares.