1. These are two references under s.60 (1) of the Travancore-Cochin Agricultural Income-Tax Act, 1950. The order concerned is the common order of the Agricultural Income-tax Appellate Tribunal, Trivandrum, in Agricultural Income-tax Appeals 6 and 7 of 1956 and the questions referred are:

(1) Whether the status of the assessee is that of an undivided Marumakkathayam tarwad, and not that of an association of persons or thavazhi; and

(2) Whether the assessment made under s.3, sub-section (3) of the Travancore-Cochin Agricultural Income-tax Act, 1950, is correct in law.

I. T. R. No. 4 of 1956 (K) (Income-tax Appeal 7 of 1956) relates to the assessment year 1952-53 (accounting period: 1126 M.E.) and I. T. R. No. 3 of 1956 (K) (Income-tax Appeal 6 of 1956) relates to the assessment year 1953-54 (accounting period: 1127 M.E.).



2. s.3 of the Travancore-Cochin Agricultural Income-tax Act, 1950, deals with the charge of agricultural income-tax and sub-section (3) of that section which has been held to be applicable by the Department and the Tribunal provides that :

"In the case of an undivided Marumakkathayam tarwad including a Nambudiri family or a family like that of the Moothathu or any other class governed by the law applicable to Nambudiries consisting of more than five members and whose agricultural income exceeds six thousand rupees, the tax shall be assessed at the average rate applicable to the share of the agricultural income due to five members of the family or to six thousand rupees, whichever is higher".

According to the assessee - one of the thavazhies of the Angarath tarawad represented by a receiver appointed by court - the properties are held as tenants-in-common and the sub-section applicable is not sub-section (3) of s.3 but sub-section (5) of that section:

"In the case of persons holding property as tenants-in-common and deriving agricultural income, the tax shall be assessed at the rate applicable to the agricultural income of each tenant-in-common".

3. The contention of the assessee before the Appellate Tribunal in Income-tax Appeals 6 and 7 of 1956 and its conclusion are summarised as follows in the Tribunals order of reference dated 12-12-1956:

"In the appeal before this Tribunal, two contentions were advanced on behalf of the assessee, firstly, that the assessment ought to have been made under s.3, sub-s. (5) of the Act, as the assessee was holding properties as tenants-in-common, and secondly, that in view of the specific provision made in the Act by s.3, sub-s. (5), s.29 of the Act ought not to be interpreted, so as to hold, that a partition by metes and bounds is necessary. This tribunal held, that so long as there has been no partition by metes and bounds, the assessee must be treated to be an undivided Marumakkathayam tarwad and the assessment must be made under s.3, sub-s

. (3) of the Act. It also held that the introduction of s.3. sub-s. (5) in the Act did not warrant a departure from the true interpretation to be placed on s.29 of the Act, as to hold, that a mere severance in status, as distinguished from a partition I by metes and bounds, is sufficient to attract the operation of s.29 of the Act".



4. sub-section (1) of s.29 (omitting the proviso thereto) reads as follows:

"Where at the time of making an assessment under s.18, it is claimed by or on behalf of any member of a Hindu undivided family, or Marumakkathayam tarwad hitherto assessed as undivided that a partition has taken place among the members or groups of members of such family or tarwad, the Agricultural Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect".

This is a machinery section and is similar to s.25 A (1) of the Indian Income-tax Act, 1922 which (omitting the proviso thereto) is in the following terms:

"Where, at the time of making an assessment under s.23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry there into as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect."



5. The latter provision came up for consideration in A.I.R. 1942 P. C.

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7. The Privy Council said:

"s. 25A provides that if it be found that the family property has been partitioned in definite portions, assessment may be made, notwithstanding s.14 (1), on each individual or group in respect of his or its share of the profits made by the undivided family, while holding all the members jointly and severally liable for the total tax. If, however, though the joint Hindu family has come to an end it be found that its property has not been partitioned in definite portions, then the family is to be deemed to continue - that is to be an existent Hindu family upon which assessment can be made on its gains of the previous year".

Kanga deals with the provision as follows:

"This sub-section provides that once a Hindu family is assessed as a joint family, it must continue to be so assessed even after disruption unless and until an order is passed under sub-section (1) of this section recognising the partition. Now, no order can be made under sub-section (1) unless there has been a complete physical division of the family property. Therefore, though a joint Hindu family

may have come to an end in law, if a complete division of the family property has not been effected and consequently no order is passed under sub-section (1) then the family is deemed, for the purposes of this Act, to continue to be a joint family and it would continue to be charged as a unit of assessment, despite its disruption in law. Even where there has been a physical partition of the family property, if no claim of partition is made by any of the members at the time of making the assessment and consequently no order is recorded under sub-section (1), the family must be deemed, for the purposes of this Act, to continue to be an undivided family". (Law and Practice of

Income-tax, 3rd Edition, p. 747)

6. The contention of the assessee is that as a result of O.S. 10 of 1116 of the Trichur District Court and the karar dated 19-6-1126 (1-2-1951) the homogeneity of the tarwad has been disrupted and that there has been a severance of joint status. This contention has apparently been accepted by the Department.



7. In XXVI Cochin 153 the question arose as to whether two items of property left in common at a partition in a Nair tarwad were held as joint tenants or tenants-in-common came up for consideration. sahasranama Ayyar, J., quoted the following passage from Mullas Principles of Hindu Law, 7th Edition para 328:

"It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint undivided family. But where there is evidence to show that the parties intended to sever, then the joint family status is put an end to and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as joint tenants is proved".

and said:

"The analogy, so far as the question in hand is concerned, seems to be fairly complete, and in my opinion, the above principles are equally applicable to the case of tarawad property. The result then is that the plaint property and the adjoining plot which were under the partition reserved as common property were after the partition held by the persons entitled thereto, not as a joint tenancy, but as a tenancy-in-common"



8. The reason that induced the Department and the Tribunal to hold that the assessments should be under sub-section (3) of s.3 and not under sub-section (5) of that section was not the absence of a severance of joint status but the fact that the property had not been partitioned "in definite portions" as contemplated by s.29 of the Act.



9. It is clear from the wording of s.29 (1) of the Act that it deals with Hindu undivided families and Marumakkathayam tarwads "hitherto assessed as undivided". The Travancore-Cochin Agricultural Income-tax Act, 1950, came into force only on 1-4-1951 and there has been no assessment under that Act, prior to the two assessments with which we are concerned. Counsel for the assessee contends that it should follow that s.29 has no application to these cases, that s.3 unhampered by s.29 should govern the issue, and that sub-section (5) of s.3 alone is applicable on the facts and circumstances of the case.



10. We are inclined to accept this contention. The words "hitherto assessed" in sub-section (1) of s.29 must refer to assessments under the Travancore-Cochin Agricultural Income-tax Act, 1950, and not to assessments under any other enactment and as the assessee had never been assessed as an undivided Marumakkathayam tarwad under that Act prior to the assessments in controversy, s.29 should be considered as having no application to the cases before us. There is a definition of the expression "Agricultural Income-tax" in s.2 (b) of the Act. The definition is: "Agricultural Income-tax means the tax payable under this Act."

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1. Counsel for the petitioner has also a case that even if s.29 applies, the true interpretation of that provision will still lead to the conclusion that the assessments should be under sub-section (5) and not sub-section (3) of s.3 of the Act. In the view we have taken in the last preceding paragraph it is unnecessary to consider this contention and it is not considered in this judgment.

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2. It follows that we must hold that the assessments under sub-section (3) of s.3 of the Travancore-Cochin Agricultural Income-tax Act, 1950, are incorrect and answer in the negative the second of the two questions referred to us. We also hold that in view of the said answer it is unnecessary to deal with the first of the two questions referred.

13. We have not had the advantage of hearing the Advocate-General or any of the Government Pleaders on behalf of the Department. Assistance in a case like this would have been most welcome and it is a pity that it has not been available to us. We have had to deal with the case as best we could, unaided by argument and discussion which form so much of the essence of our system of administering justice.

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4. The references are answered as above. The Department will pay the costs of the assessee, advocates fee Rs. 200/- for both the references.

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5. A copy of this judgment under the seal of the court and the signature of the Registrar will be forwarded to the Appellate Tribunal, Trivandrum, as provided by sub-section (6) of s.60 of the Travancore-Cochin Agricultural Income-tax Act, 1950.