N.K. SARADA THAMPATTY NILAMBUR Vs. ITO

JUDGEMENT

(1.) The petitioner was the head of a tavazhi in the Nilamboor Kovilagam, which was partitioned on 12-11-1951. In that partition, the forest lands belonging to the Kovilagam were left undivided, allotting 9/112 share to the petitioner's tavazhi. Thereafter the petitioner was being assessed as the head of a Hindu Undivided Family. For the assessment year 1967-68, the petitioner made a claim under S.171 of the Income Tax Act, 1961 that her tavazhi had been divided by a registered agreement executed by the members of the tavazhi on 21-2-1963, and that she was not, therefore, liable to be assessed as head of such family. By his order, Ex. P1 dated 16-3-1970, the petitioner's claim was rejected by the Income Tax Officer. Accordingly the petitioner was assessed as head of the tavazhi for the assessment years 1967-68, 1968-69, and 1969-70 as per orders Exs. P2 and P3 dated 16-3-1970 and Ex. P4 dated 27-3-1970 respectively. This writ petition has been filed to quash the aforesaid orders on the ground that during the previous years to which the said assessments relate there was no undivided family.

(2.) The facts of the case are not in dispute. One of the tavazhi of the Nilambur Kovilagam filed O. . 22 of 1961 in the Sub Court, Kozhikode for partition of the forest lands which had been left undivided in the partition of 1951. Naturally the members of the petitioner's tavazhi were parties to that suit. The agreement of partition of the petitioner's tavazhi was executed during the pendency of the above suit. The suit was decreed on 24-9-1965 allotting individual shares in the suit property to the members of the petitioner's tavazhi on the basis of the aforesaid partition agreement. It is admitted that the tavazhi properties have not been divided among its members by metes and bounds under this agreement. The relevant clause of the partition agreement has been extracted in the original petition. There is no dispute that by the said agreement and by the aforesaid decree, there has been a severance in status of the petitioner's tavazhi as a joint Hindu family, and under law the tavazhi docs not exist as a joint Hindu family after 21-2-1963, the date of the partition agreement.

(3.) If S.171 of the Act will apply to the above assessments, the petitioner would not be entitled to any of the reliefs claimed by her, since the ' partition relied on by her was not one effecting a physical division of the property. But her contention is that the said section has application only to a partition effected during the previous year to which the assessment relates, and that it has, therefore, no application to the impugned assessments. Then there is no question of recording any finding under sub-s.(3) of S.171 in this case. The order Ex. P1 can be ignored; and there is no question of quashing it.