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TMI Blog1998 (3) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... vant assessment years are 1978-79 and 1979-80. The questions of law raised for decision of this court are as follows : "(I) Whether the property of the assessee situate in Kerala State who is governed by the Hindu Mitakshara law will not come under the purview of the Kerala Joint Hindu Family System (Abolition) Act on the ground that the assessee is residing outside Kerala State ? (II) Whether the Kerala Joint Hindu Family System (Abolition) Act, 1975, is applicable to the assessee ? (III) Whether domicile of a person governs the system of law relating to property situate in Kerala State ? (IV) Whether there is bar of limitation for initiating suo motu proceedings ? (V) Has not the order passed by the Sub-Court, Salem, in I. A. 1372 of 1980 in O. S. No. 366 of 1980 allotted shares to the wife and daughter of Dayalan Rajes the assessee ?" The assessee who is domiciled in Tamil Nadu is having properties in Kerala. He was originally assessed to the Kerala agricultural income-tax on July 1, 1988, for the assessment years 1978-79 and 1979-80. The assessee obtained the property under family partition deeds dated July 14, 1954, and October 16, 1956. The assessing authority too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the joint family and as a result of the disruption which was brought about by the Kerala Joint Hindu Family System (Abolition) Act, 1975, in the joint family, the assessee, his wife and daughter are to be treated as tenants-in-common. It was further contended that since the properties are situate in Kerala, the Kerala Joint Hindu Family System (Abolition) Act, 1975, is applicable to the property, income from which is being assessed and, therefore, the view taken by the Deputy Commissioner is unsustainable. The Commissioner found from the assessment records that original assessments for the years 1978-79 and 1979-80 were completed assigning the assessee's status as individual. Even in the partition which had taken effect in the family in the year 1981, the assessee had not allotted any share to his wife and minor daughter. Later, by the revised assessment order dated July 1, 1988, they were assigned the status of tenants-in-common. The Commissioner agreed with the view taken by the Deputy Commissioner that since the assessee and his family are residing at Tamil Nadu, the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975, is not applicable to his case. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside the State of Kerala. The preamble of the Act reads as follows : "Whereas it is expedient to abolish the joint family system among Hindus in the State of Kerala ; Be it enacted in the Twenty-sixth year of the Republic of India as follows....... Sub-section (1) of section 1 gives the title of the Act as the Kerala joint Hindu Family System (Abolition) Act, 1975. Sub-section (2) provides that the Act extends to whole of the State of Kerala. The term "joint Hindu family" is defined under section 2. It takes in (1) a tarwad or thavazhi governed by the Madras Marumakkathayam Act, 1932, the Travancore Nayar Act, II of 1100(ME), the Travancore Ezhava Act, III of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya Act of 1108, the Travancore Krishnavaka Marumakkathayee Act, VII of 1115, the Cochin Nayar Act, XXIX of 1113, or the Cochin Marumakkthayam Act, XXXIII of 1113, (2) a kutumba or kavaru governed by the Madras Aliyasanthana Act, 1949, (3) an illom governed by the Kerala Nambudiri Act, 1958, and (4) an undivided Hindu family governed by the Mitakshara law. The assessee in this case claims that he is a member of an undivided Hindu family governed by the Mita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole or any part of the State of Kerala. Thus, for example, when the Madras Marumakkathayam Act, 1932, as well as the Madras Aliyasanthana Act, 1949, are applicable to Hindus inside as well as outside the present State of Kerala, its repeal is limited only to its application to those who are within the State of Kerala. Therefore, from the title, preamble and also from the provisions of the Act as referred to above, it is clear that the Act has application only to Hindus in the State of Kerala. In this connection, it is relevant to note that under the Madras Marumakkattayam Act, 1932 (22/33) there is specific provision by which the Act is made applicable to Hindus outside the presidency of Madras also. Sub-section (2) of section 1 of the above Act reads as follows: "It shall apply-- (a) to all Hindus in the Presidency of Madras who are governed by the Marumakkattayam law of inheritance ; (b) to all Hindus outside the said Presidency governed by the said law, in respect of properties within it ; and (c) to all Hindu males, whether governed by the said law or not, who have contracted or may contract marital alliances with Hindu females governed by the said law." But, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wad property situate in the State of Cochin, is maintainable. Vaidyanatha Ayyar C. J., who delivered the leading judgment, made the following observations : "It is beyond dispute that simply because a British Nayar tarwad, which is not compulsorily partible according to the Marumakkathayam law, possesses immovable properties there, a thavazhi of that tarwad cannot take advantage of the provisions of the Nayar Regulation and enforce partition to those properties. This is on the well-known principle that a tarwad is governed by the law of its domicile. The domicile of a tarwad is the domicile of all the members constituting the tarwad." The same view was taken in Kumara Pillai v. Arumukhaperumal Pillai (34 Cochin 579) and Ananchaperumal Pillai v. Bhagavathi Amma (40 CLR 334). It is true that when it comes to the choice of law in respect of immovable property, the general rule is that lex situs is the governing law. But, there are exceptions to this general rule. There is a discussion on this aspect at page 504 of Cheshire and North's Private International Law, 10th edition : "...the whole law of the foreign situs might either include its rules of private international law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property held by the joint family takes effect as in the case of partition. But the Act has other implications also. As mentioned earlier sub-section (2) of section 7 repeals 12 statutes applicable to different sections in the State of Kerala. The provisions are made in the abovementioned statutes in respect of matters other than joint family property also. Even after the coming into force of the Hindu Marriage Act, 1955, certain provisions under the local enactments are saved and kept in force by virtue of section 29(2) of the above Act. A Full Bench of this court had occasion to consider in Ayyappan Kurup Krishna Pillai v. Parukutty Amma Subhadra Amma [1971] AIR 1971 Ker 44 ; [1970] KLT 442, as to how all rights, substantive, procedural or remedial to obtain dissolution of marriage under the Travancore Nayar Act, 1100 are saved under sub-section (2) of section 29 of the Hindu Marriage Act, 1955. By repeal of these enactments under sub-section (2) of section 7 of the Act 30 of 1976, what has been saved under section 29(2) of the Hindu Marriage Act, 1955, as provisions under local enactment are no longer available. This is only to show that the effect of Act 30 of 1976 on joint H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. Therefore, the Commissioner is fully justified in rejecting the revisions filed by the assessee and directing the Agricultural Income-tax Officer to issue fresh assessment orders in accordance with law. We find no merit in the contention raised on the question of limitation also. Under section 34 of the Agricultural Income-tax Act, 1950, which gave the Commissioner power of suo motu revision, it had not provided for any period of limitation. Section 75 of the Kerala Agricultural Income-tax Act, 1991, provides that the revisional authority shall not pass the order after expiry of 4 years from the date of passing the order revised. In these cases, the order revised is dated July 1, 1988, notice under section 75 was issued on November 6, 1991, and the order was passed on February 13, 1992. Therefore, it is clear that the order is passed within the time prescribed. In view of the above facts, learned counsel for the assessee did not seriously argue the point. On the questions referred, we hold that the property of the assessee situate in the Kerala State will not come within the purview of the Kerala Joint Hindu Family System (Abolition) Act, 1975, and that the above A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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