Ramaprasada Rao, J.
1. 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 without noticing the partition, or giving effect to it. But, for the year 1963-64, he filed an application for composition under Section 65 of the Madras Agricultural Income-tax Act, stating that there was a partition between himself and his minor sons and others and by reason of such partition, the composition he was seeking for was to be limited to his aliquot share of the family properties. The Agricultural Income-tax Officer, when he was confronted with such an application for composition, found that the petitioner gave incomplete particulars in the application as they were far different from the particulars given in the previous assessment years. After scrutinising the partition deed, he was of the view that no convincing reason was given as to how a self-acquired property could be the subject-matter of a partition between a father and his sons and, therefore, he issued a show cause memo, to the petitioner as to why his application for composition should not be rejected and why the petitioner should not file the returns in the usual form under Section 16(2) of the Act.
2. As against this proposal of the Agricultural Income-tax Officer, the petitioner filed a revision petition to the Commissioner of Agricultural Income-tax as provided under the Act, but without success. The Commissioner, after hearing the parties and perusing the records, found, as a fact, that the partition deed dated March 24, 1960, recited that the minors, who were also parties to the document and entitled to the benefits thereunder, were not given immediate separate possession of the properties, but they were enti'tled 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.
3. The partition deed has been produced and it is not in dispute that there is a recital in the deed to the effect that the other members of thefamily, particularly the minors were to get possession of their aliquot share only after they become majors. Mr. Sivamani, however, contends that this fact not having been noticed by the assessing authority, the Commissioner ought not to have probed into it and found this as a circumstance against the grant of the composition application. I am unable to agree. If an assessee approaches a statutory authority for obtaining a concession under the taxing statute he should in fairness place all the material before the said authority and be also in a position to satisfy the said authority that he has gained his entitlement to obtain the concession in accordance with the provisions of the taxing statute and also under the common law. The jurisdictional fact in the instant case which would entitle the petitioner to gain the concession under Section 65 of the Act is that there should be a partition between the members of the family, even if it is conceded that it is a joint family and such a partition reduced to writing was acted upon and given effect to. In the absence of proof that such a partition was acted upon by the persons concerned 'immediately after its execution, it will be difficult for the authority adjudicating on the entitlement to come to one or other of the conclusions. The fact that the assessing authority failed to notice this fact and that, the revisional authority noted it in its order would not make any difference. 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.
4. 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 portion that the minors shall get their respective shares only after attaining majority is correct. The Hindu law is clear that to constitute a partition, the partition of the shares should not only be defined, but it should be so defined with the intention of immediate separation, and exclusive enjoyment by the parties, who partitioned the joint family properties. But, in the instant case, such enjoyment and possession is postponed to a future date. Therefore, it cannot be said that the deed, though eo nomine called a partition deed, is one which is acceptable either under the personal law of the parties or otherwise. The conduct of the assessee also is a pointer to the fact that this partition was not acted upon, for, prior to the assessment year inquestion, he never claimed that there was any such partition as between himself and his minor sons and during those previous assessment years he was satisfied to file an application for composition with reference to the entire extent of the family lands. One other circumstance noted by the Commissioner is that even the electric service connection to the lands in question always stood in the name of the petitioner, which is again a positive fact to indicate that there was no separate possession and enjoyment of the family members after the partition deed was executed.
5. Reliance, however, was placed upon the decision in H. N. Kempai Gowder v. Commissioner of Agricultural Income-tax, : 54ITR31(Mad) . This case, far from helping the petitioner, appears 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 werebrought 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.'
6. 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 partitions have to be ignored. That is the case here. I have, already stated the facts and circumstances of this case to show that the instrument created was never acted upon, and it appears that it was not intended to be acted upon either. There might have been a disruption in the joint status of the members of the family, if the members are to be treated as joint family at alt. This doubt has arisen because of the observation in the record, whether the property is ancestral property or the self-acquired property of the petitioner. I am not, however, touching upon this aspect. But certainly the other limb which is equally important to make a partition effective, namely, that it was acted upon or intended to be acted upon is conspicuously absent in the instant case.
7. For all these reasons, I am unable to say that the order of the second respondent is without jurisdiction or contains an error apparent or an error of law therein. The rule nisi is discharged. The writ, petition is dismissed. There will be no order as to costs.