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P. Vincent and ors., Coimbatore (by Manager Mr. Paul Vincent) Vs. Commr. of Income-tax, Madras - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCase Referred No. 5 of 1950
Judge
Reported inAIR1953Mad336; [1952]22ITR285(Mad); (1952)2MLJ545
ActsIncome-tax Act, 1922 - Sections 26A
AppellantP. Vincent and ors., Coimbatore (by Manager Mr. Paul Vincent)
RespondentCommr. of Income-tax, Madras
Appellant AdvocateM. Subbaraya Aiyar, Adv.
Respondent AdvocateC.S. Rama Rao Sahib, Adv.
Excerpt:
- .....partners the partnership should not be dissolved. at the date of the family arrangement one of the sons, danaraj vincent, was a minor and was represented by the eldest son as guardian. but in the partnership deed however danaraj vincent signed as a major. notwithstanding the execution of the partnership deed in 1942 no attempt was made by the assessees to get the deed registered under section 26a, income-tax act. for the first time an application to register the firm was made on 11-3-1946 during the assessment year 1945-46. the registration of this firm as a partnership was rejected by the income-tax authorities and also by the appellate tribunal and at the instance of the assessee this reference was made to this court. during the pendency of these proceedings, on 1-11-1947, danaraj, who.....
Judgment:

Satyanarayana Rao, J.

1. Under Section 66 (1), Income-tax Act the Appellate Tribunal referred to this Court two questions for decision. They are:

'1. Whether on the facts and in the circumstances of the case the assesses is entitled to claim registration as a firm under Section 26A, Income-tax Act on the basis of the partnership deed, dated 21-8-1942, and/or on the deed of family arrangement, dated 7-8-1942 and/or the deed, dated 24-3-1948?

2. Whether on the facts and in the circumstances of the cases, the provisions of Section 9(3) of the Act are attracted to the income from property.

We may at once point out that question 2 arises only out of the assessment and does not arise out of the order under Section 26A of the Act. The reference that was sought for was only against the order under Section 26A and not against the assessment order. Therefore question 2 should not have been referred by the Appellate Tribunal to this Court. The argument was therefore confined before us to question 1 alone. It is that question which we have to answer as arising out of the appellate order of the Tribunal.

2. One S. Vincent executed a Will on 4-2-1941 and died on 22-4-1942, leaving behind him four sons, two daughters and a widow. Immediately after his death there were disputes regarding the Will between the members of the family and the disputes were ultimately settled by a deed of family arrangement of 7-8-1942. Under this arrangement it was agreed between the members that the entire properties and the business left by the deceased S. Vincent should be managed by the eldest son P. Vincent, and after his, on behalf of all the members of the family, by the then surviving eldest son. The managing member was given complete control over the business belonging to the members for a period of seven years from the date of the deed. At the end of the period, it was provided that the parties should scrutinise the accounts and draw a true and accurate list of all the assets and liabilities and if thereafter they did not wish to continue the business, the properties should be divided so as to give a one-sixth share to each of the four sons and the widow and a one-twelfth to each of the two daughters.

Within fourteen days after this deed, they entered into a deed of partnership in respect of the business. The four sons, the two daughters and the widow were treated as the partners, and their shares were one-sixth each to the four sons and the widow and one-twelfth to each daughter. There is a provision in the partnership deed whereunder notwithstanding the death of anyone of the partners the partnership should not be dissolved. At the date of the family arrangement one of the sons, Danaraj Vincent, was a minor and was represented by the eldest son as guardian. But in the partnership deed however Danaraj Vincent signed as a major. Notwithstanding the execution of the partnership deed in 1942 no attempt was made by the assessees to get the deed registered under Section 26A, Income-tax Act. For the first time an application to register the firm was made on 11-3-1946 during the assessment year 1945-46. The registration of this firm as a partnership was rejected by the Income-tax authorities and also by the Appellate Tribunal and at the instance of the assessee this reference was made to this Court. During the pendency of these proceedings, on 1-11-1947, Danaraj, who had by then attained majority, released his interest in the business under a release deed and on 24-3-1948 there was a ratification executed between the parties whereunder Danaraj ratified the previous arrangements from the date of the family arrangement till the date of his relinquishment on 1-11-1947 when he retired from the partnership. These documents which came into existence on a date subsequent to the date of the application were not and could not be taken into consideration and in that we think that the revenue authorities were correct. The assessee contended that there was a valid partnership both under the deed of family arrangement of 7-8-1942 and also under the partnership deed of 21-8-1942. It is rather difficult to construe the deed of family arrangement as constituting a partnership as it proceeds on the assumption that the parties became co-owners of all the properties, movable and immovable, and the businesses and they provided for the management of the properties for a period of seven years by appointing a common manager. At the end of the period it was provided that there should be a taking of accounts and if there is no intention to continue joint they could divide in accordance with the shares provided in the deed. The deed in no sense can be treated as constituting the co-sharers, partners.

3. The deed of partnership was consideredinvalid as Danaraj signed the documents asa major while in fact he was a minor. Theview taken was that because a minor couldnot be made a partner and as the deed purported to make Danaraj a partner the wholeof that deed was void and of no legal effect.The other aspect, whether the deed could notbe so construed as to imply that the partiesintended thereby to admit Danaraj to thebenefits of the partnership was also rejectedon the ground that the two could not be separated from the document i.e., the intention toconstitute a partnership could not be severedand from that an inference to admit theminor as a partner could not be made. Weare however unable to accept this view. Ifthe minor signed as major, he could not bindhimself by that contract. That does not meanthat the partnership between the remainingmembers was thereby also made invalid. Inthe judgment in -- 'Jakka Devayya & Sons v.Commr. of Income-tax, Madras', RC Nos. 1and 2 of 1950 (Mad.) which we delivered today we gave reasons for construing a document of a similar nature as constituting aminor as a person admitted to the benefits ofa partnership, and as according to the definition of 'partner' in the Income-tax Act evena minor is treated as a partner for the purpose of the Act, the six adults may be treatedas having entered into a valid partnership andthe minor as having been admitted to thebenefits of the partnership. As he is also apartner according to the definition of the income-tax Act there is no valid objection forregistering the partnership under Section 2GA, Income-tax Act. As already stated, the subsequent deed of 24-3-1948 could not be considered in these proceedings and it was rightly rejected. We have already given reasons fornot construing the settlement deed of 7-8-1942, as constituting a partnership. There ishowever a valid partnership deed under thedeed of 21-3-1942 and the partnership shouldhave been registered under Section 26A of the Act.The answer therefore to the question referredto us is in the affirmative and in favour of theassessee. As the assessee has succeeded he isentitled to his costs which we fix at Rs. 250.


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