TMI Blog1984 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... he Kerala joint Hindu Family System (Abolition) Act, 1975, came into force with effect from December 1, 1976. (I shall refer to this Act as the State Act or the Abolition Act as the context requires). In the course of the assessment proceedings, each of the assessees (petitioners) contended that, in view of the Abolition Act, he should no longer be assessed in the status of HUF, but as the full owner of his separate share as if a partition had taken place in his family. This contention was rejected by the ITO by his impugned orders in respect of each of the petitioners on the ground that the Abolition Act did not bring about a physical division of the properties held by the HUF so as to warrant a finding of partition in terms of s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onger a joint Hindu family in Kerala which can be assessed as such, or which can be deemed to continue as such, for the purpose of assessment by importing a fiction in terms of s. 171 of the I.T. Act. Only the individual members of the erstwhile families are liable to be assessed in respect of the income earned from the properties allotted to them. I shall first consider the relevant provisions of the State Act. The object of the enactment is to abolish the joint family system among Hindus in the State. The petitioners belong to a Namboodiri Illom which is included in the definition of the joint Hindu family. Section 4 of the State Act provides : 4. Joint tenancy to be replaced by tenancy-in-common.-(1) All members of an undivided H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold the properties which they hitherto held jointly, as tenants-in-common as if there was a partition among them. As a result of the statutory disruption, what was held by the members as joint tenants has come to be held by them as tenants in common. This is made possible by deeming that change in status has occurred as if there was a partition. The State Act does not say which portion of which property shall belong to which member, but has only apportioned among the members their respective shares which each of them shall hold separately as full owner thereof. The members have become separate in interest and in right, but no physical division of the properties into definite portions has taken place as a result of the Act. That is a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition... The effect of this section is that a Hindu family hitherto assessed as undivided shall be deemed, for the purpose of the I.T. Act, to continue as a HUF, except in so far as a finding of partition has been made under this section in respect of that. If the family had not been assessed in the past as an undivided family, s. 171 would have no application. In respect of a family described under s. 171, a finding of partition is a condition precedent to obtain the benefit under that section. In the absence of such a finding, the family is liable to be assessed on the basis of the, total income of the joint family as if no par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to the partition, except where a finding has been made under the section that the partition has actually resulted in a physical division of the properties. The State Act says that the properties held by the members of the joint family shall, as from the (late on which the Act came into force, be deemed to be held by them as tenants-in-common as if there was partition. This meant that the abolition of the joint family system in Kerala is accomplished by a statutory fiction. What was once a joint tenancy under the HUF is, by a fictional partition, converted into a tenancy-in-common. A joint family is disrupted either by an actual partition by volition of parties or by arbitration or suit, or by a deemed partition by operation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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