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TMI Blog1993 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ed him accordingly. In the appeal filed for the assessment year 1976-77, the respondent did not dispute the status before the Appellate Assistant Commissioner. The appeal was dismissed. The Tribunal found that the Revenue was not aggrieved by the order and the question that arose for consideration in the other years did not arise for consideration for the assessment year 1976-77. So, the appeal filed by the Revenue before the Agricultural Income-tax Appellate Tribunal was dismissed in limine, holding that the Department was not aggrieved by the order of the Appellate Assistant Commissioner (paragraph 4 of the common order). T. R. C. No. 5 of 1992 is filed by the Revenue for the assessment year 1976-77 against the common order of the Appellate Tribunal dated June 19, 1991. We are of the view that T. R. C. No. 5 of 1992 is incompetent and unnecessary, since the Revenue is not aggrieved either by the order of the Appellate Tribunal or by the order passed by the first appellate authority. We hold so. We dismiss T. R. C. No. 5 of 1992 as incompetent and unnecessary. The question in controversy in the other three revisions is regarding the status to be assigned to the respondent/assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee and his wife. There was no other male member. The Kerala Hindu Joint Family System (Abolition) Act, 1975, came into force with effect from December 1, 1976. The plea of the assessee was that on that day the joint family consisted of two members, the assessee and his wife, and by the operation of section 4(2) of the said Act, the assessee's wife is entitled to one-half share and the assessee can be assessed only as "tenants-in-common" for the other half of the property. It was common ground that it is the ancestral joint family property obtained by the respondent/assessee in the partition between himself, his brother and father by partition deed No. 401 of 1960 which was again partitioned between the respondent and his only son by partition deed No. 156 of 1975, dated March 29, 1975. After the later partition, the assessee was the sole male member in the family. The Revenue took up the plea that the property so held by the respondent/assessee is his separate property. There was no joint family or joint family property on the date when the Kerala Hindu Joint Family System (Abolition) Act came into force on December 1, 1976. The daughter of the respondent/assessee was married aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1976, confers a right on her to share the properties obtained by the respondent on partition between himself and his only son and the wife is entitled to one-half share. It cannot be said that the property so obtained by the respondent on the partition aforesaid is not joint family property. The claim of the Revenue that the property obtained by the respondent is his separate property was not accepted. So, it was held that the respondent and his wife constituted a joint Hindu family even after the partition in 1975. The respondent and his wife will hold it as tenants-in-common and each of them will be assessed on a half share of the income. The status to be assigned is tenants-in-common. These are the findings of the Appellate Tribunal. We are of the view that the Agricultural Income-tax Appellate Tribunal has wholly misunderstood the nature of the property obtained by the respondent as per the partition deed dated March 29, 1975. It is true that the properties so partitioned were obtained by the respondent/assessee in a partition between himself, his brother and his father. They were ancestral properties. Even so, the property allotted or obtained by the respondent in the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us : "The share in the ancestral estate which a coparcener gets on partition with his co-sharers is his separate property as against the coparceners from whom he separates (Bijai Bahadur v. Bhupinder [1895] 17 All 456 ; 22 IA 139), though as against his own male issue who are born after partition or who were born before but who do not get themselves separated from him the property has still the character of ancestral property in which they take an interest by birth." In Hindu Law by S. V. Gupte, 3rd edition (1981), Vol. I, at page 120, paragraph 28, the law is stated thus: "Where the dividing coparcener has male issue in existence at the time of partition and the partition takes place between him and some or all of them, then the share allotted to him is in his hands ancestral only as regards those who are still undivided with him and those yet to be born but not as regards those who have separated from him, for on partition they would receive shares for themselves. Where the dividing coparcener has no male issue in existence at the time, there is nothing to prevent him from dealing with the share as he is the absolute owner thereof; but the birth later of a son, grandson or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y property on the day when the Act came into force. It was only a separate or individual property of the respondent. The Appellate Tribunal was in error in holding that the respondent/assessee was holding any joint family property on the day when the Act came into force or that he should be deemed to hold it as tenants-in-common or that he can be assessed only on the half share of income due to him. The above findings are clearly erroneous in law. We hold that the respondent/assessee was holding the property obtained by him in the partition dated March 29, 1975, as his separate property and was holding so on the day when the Act came into force, i.e., on December 1, 1976. He was owning the property as his separate property or individual property. The entire income should be assessed only in his hands and as individual. The Appellate Tribunal erred in holding that the status to be assigned to the respondent is "tenants-in-common" or that he could be assessed only on half share of the income from the said property. The respondent should be assessed in the status of "individual" on the entirety of the income obtained by him from the property as per the partition deed dated March 29, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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