MOHAN J. - The short question that arises in these three writ petitions is whether the holdings of the wife who, under a settlement from the petitioner made on November 25, 1959, got 44.78 acres could be clubbed along with the holdings of the petitioner.
The case of the petitioner is that these properties were ancestral in character and, therefor, the properties retained by him after settlement should be considered as belonging to the Hindu joint family consisting of the petitioner and his wife and it is not necessary that there should be another male member to constitute a joint Hindu family because this is not a case of coparcenary. In support of his submission reliance is placed on Narendranath v. Commissioner of Wealth-tax : 74ITR190(SC) . The first of the two writ petitions, viz., W.P. No. 6053 of 1973, relates to the assessment year 1970-71 and the second writ petition, viz., W.P. No. 263 of 1974, relates to the assessment year 1971-72. I do not think it is necessary in these two cases that the question whether the holdings of the wife could be clubbed along with the holdings of the petitioner will have to be considered, because in the returns field by the petitioner himself, he did not claim to have field the returns as the Karta of the joint Hindu family. On the contrary, he filed them as 'individual' and, therefore, section 9(2) of the Madras Agricultural Income-tax Act was invoked and accordingly the assessment was made, which assessment was confirmed by the Commissioner of Agricultural Income-tax, the first respondent. No exception could be taken to the same. Nor can the petitioner contend that though the returns did not disclose that they were filed as the manager of the joint Hindu family, the department should have caused investigation into that fact. Assuming that it is an incorrect return, nothing prevents the tax authorities to accept that return and proceed to assess on that basis.
However, W.P. No. 4086 of 1974, relating to the assessment for the year 1972-73, stands entirely on a different footing. The petitioner did file his returns concerning the ancestral properties which were held by him jointly along with his wife as the manager of the joint Hindu family. The properties came to be owned by his wife under the settlement dated November 25, 1959, and are of the extent of 44.78 acres. Concerning this property, a separate return came to be filed. The question is whether they could be clubbed together. In my view, it cannot be; the decision in N. V. Narendranath v. Commissioner of Wealth-tax : 74ITR190(SC) is a clear authority for the proposition that a joint Hindu family can exist concerning the ancestral properties consisting of the petitioner and his wife. In the said decision it is observed thus (page 193) :
'A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the Hindu joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being.'
Under those circumstances, the question arises as to what is the procedure for assessment. Firstly, it cannot be under section 9(2) of the Madras Agricultural Income-tax Act, 1955 (hereinafter referred to as 'the Act'), because that sub-section says 'in computing the total agricultural income of any individual for the purpose of assessment.........' In the instant case, what requires to be noted is that the return was not filed by the petitioner as an individual but on behalf of the joint Hindu family.
The learned counsel for the respondent would, however, contend that section 9(1) of the Act would apply to this case. He seeks to derive support from the language of section, viz. : 'In computing the total agricultural income of an assessee, all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or after the commencement of this Act, from assets remaining the property of the settlor or disponer, shall be deemed to be the agricultural income of the settlor or disponer, and all agricultural income arising to any person by virtue of a revocable transfer of assets shall be deemed to be the agricultural income of the transferor.........'
In this connection he relies upon the definition of a 'person' under section 2(q) of the Act which is as follows :
'(q) 'Person' means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu Mitakshara family, an Aliyasanthana family or branch, a Marumakkattayam tarwad or a tavazhi possessing separate properties, or a Nambudiri or other family to which the rule of impartibility applies, a firm or a company, an association of individuals, whether incorporated or not, and any institution capable of holding property.'
Therefore, a 'person' would include thereunder an undivided Hindu Mitakshara family. This submission carries no merits because that relates to a case wherein the settlor or disponer retains some interest under the settlement. But, here, every conceivable interest has been parted with under the settlement deed dated November 25, 1959. Therefore, there is no possibility of clubbing the income of the petitioner as the karta of the joint Hindu family along with the holdings of the wife who got the properties separately under the settlement and they have to be assessed separately. So far as the authorities below refused to accept the contention, I will have necessarily to hold that the orders are manifestly wrong and they are accordingly quashed and the matter is remitted for fresh assessment in the light of the observations made above. I may once again state that this order would relate only to the assessment year 1972-73.
Since I confirmed the orders for the assessment years 1970-71 and 1971-72, W.P. Nos. 6053 of 1973 and 263 of 1974 will stand dismissed. W.P. No. 4086 of 1974 will stand allowed and the matter is remitted to the Agricultural Income-tax Officer, Mayuram, for fresh assessment in the light of the observations made above. I make not order as to costs in any one of these writ petitions.