TMI Blog1970 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... GOVINDA BHAT J.- These two writ petitions arise under the Mysore Agricultural Income-tax Act, 1957, hereinafter called " the Act ". Pursuant to a notice issued on 26th September, 1966, the petitioner filed two returns for the assessment years 1965-66 and 1966-67 furnishing only the extent of the areca gardens from which he derived agricultural income with their survey and sub-division numbers ; but he did not furnish the particulars of the income, expenses, etc. In response to the Form No. 5 notice, the petitioner appeared before the respondent and produced before him copies of a registered partition deed dated 10th January, 1958, and three term lease deeds in respect of the areca gardens from which income is derived. On perusal of the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held that the petitioner and his three brothers own the areca gardens as tenants-in common. The total extent of the areca gardens comprised in schedule F of the partition deed is 13.27 acres ; the said areca gardens, which at the time of partition had been granted on long term leases, were not divided by metes and bounds, but were allotted to the shares of the petitioner and his three younger brothers and each of the brothers held a 1/4th share. In order to appreciate the contentions urged in these writ petitions it is necessary to refer to the terms of the registered partition deed dated 10th January, 1968. That was a partition deed entered into between Gopal Pai and his four sons, viz., Cheradappa Pai, Vittal Pai, Venkatesha Pai and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It has been laid down by the Judicial Committee of the Privy Council in Approver v. Rama Subba Aiyan, that the true test of partition of property according to Hindu law is the intention of the members of the family to become separate owners and that intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the property in defined shares as separate owners operates as a partition, although there may have been no actual division of the property by metes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y consisting of himself and his three younger brothers. The petitioner and his brothers should have been assessed as tenants-in common and not in the status of a Hindu undivided family. In regard to the first ground, the argument of the learned counsel for the petitioner is that the total extent of the areca garden is 13.27 acres in which the petitioner has a 1/4 share, and, therefore, the share of the petitioner is 3.31 acres of areca garden which is less than 5 acres of the second class specified in Part II of the Schedule. Areca gardens come under the second class in Part II. One acre of areca garden is equal to 10 acres of the eighth class of land. Therefore, it is contended that under the proviso to Part I of the Schedule, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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