9911796707
TMI Blog1971 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e's share in the joint family property was held to be justified - - - - - Dated:- 23-9-1971 - Judge(s) : RAMAPRASADA RAO. ORDER RAMAPRASADA RAO J.- The petitioner is the village munsif of Koottathupatti in Salem District. He claims that on March 24, 1960, there was a partition of the family properties between himself and his minor sons, as also the mother of the petitioner and the brother's widow of the petitioner. The family property was admittedly subject to agricultural income-tax. We are concerned in this case with the assessment year 1963- 64. Notwithstanding the alleged partition as above, the assessee was filing applications for composition for the prior assessment years including the entire extent of the family properties wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the benefits thereunder, were not given immediate separate possession of the properties, but they were entitled to get such possession only after they attained majority. After noticing the recital as above, and finding that the assessee himself did not rest his case for the previous assessment years on the alleged partition deed, the Commissioner found that no case of separate enjoyment of the family properties was made out and in the absence of the same, the application for composition in the manner submitted could not be entertained and so no order was passed under section 65 of the Act. It is as against this the present writ petition has been filed. The partition deed has been produced and it is not in dispute that there is a reci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence. A fortiori it is so when the matter is adjudicated in this court under article 226 of the Constitution. It is fundamental that, when a subject-matter is dealt with under article 226 of the Constitution, all records are brought before this court on the issue of a rule nisi and this court is entitled to peruse them and find whether the records disclose cogent material for the existence of any jurisdictional fact which alone would prompt the statutory authority functioning under a taxing enactment to grant the concession. It is in this view that the partition deed was reviewed by me and I find that the statement made by the Commissioner of Agricultural Income-tax that the partition deed dated March 24, 1960, recited in its operative p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to be against him. The learned judges made a general observation to this effect: " We must observe even at the outset that the learned counsel for the department did not contend that the partition deeds, which are registered documents, are instruments created without intending to give effect to them......There is no reason to suppose that the partition deeds were brought into existence nominally without intending to give effect to them and to disrupt the joint status of the members of the family of each sharer. " These preliminary observations which obviously relate to the facts of that case, point out that, if the instruments were not intended to be given effect to and if they were brought into existence nominally, then such partit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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