K.K. Usha, J. 1. These tax revision cases are at the instance of the Revenue. They arise out of a common order passed by the Kerala Agricultural Income-tax Appellate Tribunal, Additional Bench, Kozhikode, in A. I. T. A. Nos. 289, 290, 291 and 292 of 1989. These tax revision cases are coming up for hearing before us on a reference along with 0. P. Nos. 1893 of 1993, 10950 of 1992 and 9468 of 1992 (K. N. Indira Devi v. Deputy Commr. of Agrl. I. T. and Sales Tax [1998] 231 ITR 693 (Ker) [FB]), where similar issues are raised. The above-mentioned three original petitions have been disposed of by us under a separate judgment.
2. The common questions raised in these tax revision cases are as follows :
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in finding that the respondent and his four family members constituted a joint Hindu family even after the partition in 1978 and also by virtue of Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975 ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in finding that the property held by the respondent is liable to be assessed under the provisions of the Agricultural Income-tax Act for the half share of income due to him assigning the status of tenants-in-common ?
3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that by virtue of Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the assessee and the four female members constituted a joint family ?
4. Whether, on the facts and in the circumstances of the case, the Tribunal was right in finding that the assessee and four members were entitled to half share of the property got by his father in partition under the system of Mitakshara law ?
5. Whether, the Tribunal was correct in finding that the respondent with his wife and three daughters constitute a coparcenary ?
6. Is the finding and conclusion reached by the Tribunal correct in law ?"
3. The relevant assessment years are 1980-81 to 1983-84. The respondent/ assessee was assessed under the Agricultural Income-tax Act, 1950, assigning the status as individual. The contention taken by the assessee that he along with his wife and three daughters formed a joint Hindu family and pursuant to the introduction of the Kerala Joint Hindu Family System (Abolition) Act, 1975, there is a notional partition between them and, therefore, the income from the property which was originally obtained by the assessee in partition, should be assessed in the hands of the assessee, his wife and daughters as tenants-in-common, was not accepted by the assessing authority. On appeal before the Appellate Assistant Commissioner, Kozhikode, the above view taken by the assessing authority was affirmed. But, on second appeal, the Kerala Agricultural Income-tax Appellate Tribunal (Additional Bench), Kozhikode, took the view that the income from the above mentioned property has to be assessed in the hands of the assessee, his wife and daughters as tenants-in-common. It is the above finding that is under attack in these tax revision cases at the instance of the Revenue.
4. Admittedly, the parties are governed by the Mitakshara school of Hindu law. The property income from which is sought to be assessed was allotted to the share of the assessee, T. K. Jayakumar, under a partition deed of the year 1958, executed between himself, his father, mother and his brothers. The fact that it was ancestral property and that the assessee was sole coparcener in his family at the time when the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as "the Act"), came into force is not disputed. But the contention which found favour with the Tribunal was that Sub-section (1) of the Act would be applicable in the case of the assessee even if his wife and daughters are not coparceners. The Tribunal took the view that the assessee, his wife and daughters formed an undivided Hindu family governed by the Mitakshara law and that the female members of the family are entitled to a share in the family property in view of the provisions contained under Section 14 of the Hindu Succession Act, 1956.
5. It is contended by Sri V. V. Asokan, Special G. P. (Taxes), on behalf of the Revenue, that neither Sub-section (1) nor Sub-section (2) of the Act has any application to the case of the assessee. Sub-section (1) of Section 4 applies only in the case of coparceners holding coparcenary property. So long as the wife and children of the assessee cannot be treated as coparceners there is no question of applying Sub-section (1) to their case. Whatever right they have in the property under the Mitakshara law has been protected under the proviso. He also contended that an undivided Hindu family governed by the Mitakshara law would not come within the purview of Sub-section (1) or Sub-section (2). He also pointed out that Section 14 of the Hindu Succession Act has no application whatsoever in the facts of this case. Sub-section (2) applies only in the case of those who come under categories 1, 2 and 3 of the definition clause contained under Section 2 of the Act.
6. At the outset, we may point out that learned counsel appearing on behalf of the assessee did not contend that Sub-section (1) of Section 4 would be applicable in this case. According to him, it is Sub-section (2) that would be applicable, since the wife and daughters of the assessee cannot be treated as coparceners holding coparcenary property. We have examined the reasoning of the Tribunal in coming to the conclusion that Sub-section (1) of Section 4 is applicable to the facts of this case. We are unable to sustain the reasoning of the Tribunal. The wording of Subsection (1) of Section 4 is very clear that it would be applicable only in the case of coparceners holding coparcenary property. The proviso would make it further clear that in respect of other members of the undivided Hindu family what has been protected is only their right to maintenance or the right to marriage or funeral expenses or right to residence. Reliance on Section 14 of the Hindu Succession Act, 1956, is totally erroneous. The object of Section 14 is only to remove the disability of a female to acquire and hold property as an absolute owner and also to convert any estate already held by a woman on the date of commencement of the Act as a limited owner into an absolute estate. The above section does not give any fresh right to a female member of undivided Hindu family governed by the Mitakshara law on the coparcenary property. It does not intend to treat a female member as a coparcener who can claim a separate share in a partition in the family. The assessee has no case that any portion of the property which is the subject-matter of the assessment was possessed by his wife or daughters as limited owners and over which they could claim full ownership by relying on Section 14 of the Hindu Succession Act. The wording in Sub-section (1) of Section 4 "holding his or her share" is of no consequence. Reading the entire Sub-section (1) of Section 4 it is clear that reference to "her share" is only an erroneous expression. The decisions of the Supreme Court relied on by the Tribunal are also irrelevant for interpretation of Sub-section (1) of Section 4 of the Act. Therefore, we have no hesitation to hold that Sub-section (1) of Section 4 has no application to the case of the assessee.
7. As mentioned earlier, learned counsel for the assessee was placing reliance on Sub-section (2) of Section 4. In our separate judgment in O. P. Nos. 9468 of 1992, 10950 of 1992 and 1893 of 1993 (K. N. Indira Devi v. Deputy Commr. of Agrl. I. T. and Sales Tax [1998] 231 ITR 693) where similar contentions were raised we have taken the view that Sub-section (2) of Section 4 also has no application in the case of a joint Hindu family consisting of a sole coparcener with his wife and daughters and that in such cases the assessee cannot claim to be assessed as tenants-in-common. We are of the view that the dictum laid down in the Bench decision of this court in Deputy Commr. of Agril I. T. v. R. S. Chidambaram [1994] 209 ITR 531 ; [1995] KLJ (Tax Cases) 576, does not require reconsideration.
8. We, therefore, hold that the Tribunal has committed an error in finding that the respondent/ assessee, his wife and daughters should be deemed to hold the property as tenants-in-common and that the income from the properties allotted to the assessee as per partition deed No. 56 of 1958 has to be assessed under the Agricultural Income-tax Act, 1950, assigning them the status of tenants-in-common. The view taken by the assessing authority as well as the first appellate authority that the assessment has to be completed by assigning the assessee the status of an individual is upheld. The tax revision cases are allowed.