Mrs. K.K. Usha, J. 1. The above original petitions are filed by an assessee under Sections 60(2) and 60(3) of the Agricultural Income-tax Act, 1950, for orders directing the Commissioner, Agricultural Income-tax, Thiruvananthapuram, to refer questions of law extracted in the petition for opinion of this court. The common issue arising in these petitions is whether a sole coparcener with his wife and daughter or daughters can be treated as a joint Hindu family coming under Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, and whether the members of that family can be assessed under the Agricultural Income-tax Act, 1950, as tenants-in-common. Since the petitioners contended that the decision of this court in Deputy Commr. of Agrl. LT. v. R. S. Chidambaram [1994] 209 ITR 531 (Ker) ; [1993] KLJ (Tax Cases) 576, would require reconsideration in the light of the decisions of the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 ; N. V. Narendranath v. CWT [1969] 74 ITR 190 and Surjit Lal Chhabda v. CIT [1975] 101 ITR 776, the above petitions were referred by a Bench for consideration of a larger Bench. These original petitions have come up for our consideration on such reference.
2. The petitioners are the legal representatives of the late Koloor Nanjappa, an assessee, under the Agricultural Income-tax Act, 1950. The relevant assessment years are 1983-84, 1986-87 and 1987-88. The assessee filed returns claiming the status of tenants-in-common along with his wife and daughter. The parties are following the Mitakshara school of Hindu law. The assessee obtained properties, income from which is sought to be assessed, under a partition between himself, his father and father's brother. The assessee had no sons. The contention raised by the assessee that consequent upon the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, himself, his wife and daughter should be treated as tenants-in-common by applying Section 4(2) of Act was accepted by the assessing authority and assessments were finalised on the above basis. The Commissioner of Agricultural Income-tax, Trivandrum, issued notice to the legal heirs of the original assessee on August 28, 1989, invoking the power under Section 34 of the Act proposing to revise the assessment orders on the ground that the assessee was not entitled to have the assessment completed assigning the status of tenants-in-common, that the properties should be treated as belonging to the assessee as his absolute share and no other member of his family had any right over the same. Ever though objections were filed by the legal heirs of the assessee, contending that even if they are not coparceners, the property subjected to assessment was still joint family property and Sub-section (2) of Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975, would be applicable in their case, the Commissioner was not inclined to accept the contention. The matter was remanded to the assessing authority for fresh disposal in accordance with law and in the light of the observations contained in the order passed by the Commissioner.
3. Application filed by the assessee under Section 60(2) of the Agricultural Income-tax Act, 1950, seeking reference of certain questions of law for the opinion of this court was rejected by the Commissioner. The original petitions are filed for compelling the Commissioner to refer those questions for the opinion of this court.
4. The Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as "the Act"), came into force on December 1, 1976. The preamble of the Act shows that the statute was brought to abolish the joint family system among Hindus in the State of Kerala. The term "joint Hindu family" as defined under Section 2 would take in (1) a tarwad or thavazhi governed by the Madras Marumakkathayam Act, 1932, the Travahcore Nayar Act, II of 1100, the Travancore Ezhava Act III of 1100, the Nanjinad Vellala Act of 1101, the Travancore Kshatriya Act of 1108, the Travancore Krishnavaka Marumakkathayee Act, VII of 1115, the Cochin Nayar Act, XXIX of 1113, or the Cochin Marumakkathayam Act, XXXIII of 1113 ; (2) a kutumba or kavaru governed by the Madras Aliyasanthana Act, 1949 ; (3) an illom governed by the Kerala Nambudiri Act, 1958, and (4) an Hindu undivided family governed by the Mitakshara law. Admittedly, the original assessee belonged to an Hindu undivided family governed by the Mitakshara law and the properties income from which is proposed to be assessed under the Agricultural Income-tax Act, 1950, were obtained by him under a partition between himself, his father and father's brother. At the commencement of the Act the original assessee was the sole coparcener.
5. Section 4 of the above Act reads as follows :
"4. Total agricultural income.--(1) Subject to the provisions of this Act, the total agricultural income of any previous year of any person comprises all agricultural income derived from land situated within the State and received by him within or without the State, but does not include--
(a) any agricultural income derived from land situated without the State ;
(b) any agricultural income derived from property held under trust wholly for charitable of religious purposes, to the extent to which such income is applied to such purposes in the State ;
(c) any agricultural income derived from property held under trust in part only for such purposes, to the extent to which such income is applied to such purposes in the State ;
(2) For the purposes of Sub-section (1), agricultural income derived from any land situated within the State, which is in the possession of the mortgagee thereof, shall, notwithstanding anything contained in Section 23, be deemed to be agricultural income received by the mortgagor :
Provided that where the agricultural income-tax charged on such agricultural income cannot be recovered from the mortgagor, such tax shall be payable by and recoverable from the mortgagee, and the mortgagee shall be entitled to recover from the mortgagor the amount of the tax so paid."
6. The original assessee had no case that he, his wife and daughter can be treated as members of a Hindu undivided family holding coparcenary property when the Act came into force in order to apply Sub-section (1) of Section 4. But, according to the assessee, they are to be treated as members of a joint Hindu family holding joint family property when the Act came into force and, therefore, Sub-section (2) of Section 4 has to be applied in their case. It is contended by learned senior counsel, Sri S. V. S. Iyer, that the impact of Sub-section (2) of Section 4 is a disruption of the above mentioned joint Hindu family and its members should be deemed to hold the family property as tenants-in-common as if a partition of such property, per capita, has taken place among the assessee, his wife and daughter. On the other hand, Sri V. V. Asokan, learned Special G. P. (Taxes), would submit that Sub-section (2) of Section 4 has no application in the case of the assessee. The joint Hindu families referred to in Subsection (2) are those coming under categories 1, 2 and 3 under the definition clause. According to the learned Government Pleader, the provision that is applicable to a joint Hindu family governed by the Mitak-shara law is Sub-section (1) of Section 4. But in the case of the original assessee, since he was the sole coparcener at the time when the Act came into force, he cannot be treated as a member of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property. His wife and daughter cannot be treated as coparceners. This position was not disputed by the assessee also. But, according to the Revenue, the assessee should be treated as holding the property as full owner in the absence of another coparcener. The view taken by a Bench of this court in Deputy Commr. of Agrl. I.T. v. R. S. Chidambaram [1994] 209 ITR 531 ; [1993] KLJ (Tax Cases) 576 is in support of the contention raised by the Revenue. In the above mentioned case also the assessee was the sole coparcener when the Act came into force. He contended that he and his wife would form a joint family and by operation of Section 4(2) of the Act his wife is entitled to one-half share and the assessee can be assessed only for the other half of the property as tenants-in-common. This court took the view that the property allotted to the assessee in the partition between himself and his only son, with no other male member in the joint family will be his separate property. He could deal with it in any way he likes. It can again assume the character of joint family property only if a son is born subsequently or an adoption is made. The assessee's wife is not entitled to any share in the property when the Act came into force on December 1, 1976. She had no claim for partition of the property held by the assessee. Under these circumstances, there is no question of the assessee and his wife holding the property as tenants-in-common by applying Section 4(2) of the Act.
7. Learned counsel for the assessee would submit that the above decision requires reconsideration. According to him, even if the wife and daughter of the assessee are not coparceners and not holding any coparcenary property, they could still be members of the joint family holding joint family property and that Sub-section (2) of Section 4 would be applicable in their case. Support was sought from the following decisions of the Supreme Court for the contention that there could be a joint Hindu family governed by Mitakshara law even without two male members. Gowli Buddanna v. CIT [1966] 60 ITR 293 ; N. V. Narendranath v. CUT [1969] 74 ITR 190 ; C. Krishna Prasad v. OT [1974] 97 ITR 493 and Surjit Lal Chhabda v. CIT [1975] 101 ITR 776.
8. On perusing the above decisions we note that they arose either under the Income-tax Act or the Wealth-tax Act. In Gowli Buddanna v. CIT [1966] 60 ITR 293 (SC), which arose under the Indian Income-tax Act, 1922, it was held that the assessable entities under Section 3 was not a Hindu coparcenary but a Hindu undivided family. The phrase "Hindu undivided family" is used in the statute with reference not to one school only of Hindu law, but to all schools. The expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and apparently the Income-tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members. In N. V. Narendranath v. CWT [1969] 74 ITR 190 (SC) which arose under the Wealth-tax Act the question considered was whether a Hindu undivided family is one of the assessable legal entities under Section 3 of the Wealth-tax Act. 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, they being the sons, grandsons and great-grandsons of the holder of the joint property for the time being. There is nothing in the scheme of the Wealth-tax Act to suggest that a Hindu undivided family as an assessable unit must consist of at least two male members. In C. Krishna Prasad v. CIT [1974] 97 ITR 493 (SC), the question which came up for consideration was whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of a Hindu undivided family, where no other person besides him is a member of the alleged family. It was held that Section 2(31) of the Income-tax Act, 1961, treats a Hindu undivided family as an entity distinct and different from an individual and the expression "Hindu undivided family" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law. Therefore, assessment in the status of a Hindu undivided family can be made only when there are two or more members of the Hindu undivided family. In Surjit Lal Chhabda v. CIT [1975] 101 ITR 776 (SC) also the question considered was under Section 3 of the Indian Income-tax Act, 1922. It was held that the expression Hindu undivided family under the Income-tax Act is not synonymous with Hindu coparcenary and, therefore, a Hindu undivided family with one male member and other female members can be treated as a taxable unit. In the decision of the Andhra Pradesh High Court in Ashok Kumar Ratanchand v. CIT [1990] 186 ITR 475, the question that came up for consideration was again under the Income-tax Act and, therefore, the above referred Supreme Court decisions were followed.
9. A close examination of the above decisions would show that what was considered therein was the difference between the term "Hindu joint family" which is treated as a taxable unit under the Income-tax Act or the Wealth-tax Act and a Hindu coparcenary. But in none of the above decisions it is seen stated that the wife and daughters of the sole coparcener have a right to claim a share in the so-called joint family property. Learned counsel appearing on behalf of the assessee before us also did not contend for the position that under Hindu law, the wife and daughters of the sole coparcener have any right to claim a share in the coparcenary property obtained by the sole coparcener under a partition. But the contention is that by virtue of Sub-section (2) of Section 4 of the Act, a right is created in the female members of a joint Hindu family governed by Mitakshara law. According to learned counsel the following words in Sub-section (2), viz., "whether such members were entitled to claim such partition or not under the law applicable to them" would indicate that even those members who have no right to claim share in the joint family property would also be entitled to allotment of a share on per capita basis, as if a partition of such property had taken place.
10. Going by the scheme of the Act, we find it difficult to accept the contention that any new right has been recognized in favour of any class of persons covered by the Act. The preamble of the Act itself would show that the main object sought to be achieved by the statute is abolishing of the joint family system among Hindus in the State of Kerala. Section 3 provides that on and after the commencement of the Act no one is to get any right in property by the mere fact of his birth in the family of the ancestor. Section 5 abrogates the rule of pious obligation of Hindu sons. Sub-section (1) of Section 7 provides that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. Sub-section (2) of Section 7 repeals the following enactments, to the extent they apply to the whole or any part of the State of Kerala :
"1. The Madras Marumakkathayam Act, 1932 (XXII of 1933) ;
2. The Madras Aliyasanthana Act, 1949 (IX of 1949) ;
3. The Travancore Nayar Act, II of 1100 ;
4. The Travancore Ezhava Act, III of 1100 ;
5. The Nanjinad Vellala Act of 1101 (VI of 1101) ;
6. The Travancore Kshatriya Act of 1108 (VII of 1108) ;
7. The Travancore Krishnavaka Marumakkathayee Act (VII of 1115) ;
8. The Cochin Thiyya Act, VIII of 1107 ;
9. The Cochin Makkathayam Thiyya Act (XVII of 1115) ;
10. The Cochin Nayar Act (XXIX of 1113) ;
11. The Cochin Marumakkathayam Act (XXXIII of 1113) ;
12. The Kerala Nambudiri Act, 1958 (27 of 1958)."
11. The effect of Sub-section (1) and Sub-section (2) of Section 4, according to us, is only immediate crystallization of existing rights, as if a partition had taken place among all the members of the undivided Hindu family. While Sub-section (1) deals with the right of coparceners in the coparcenary property, the proviso thereto covers the members of the undivided family having the right to maintenance, or the right to marriage or funeral expenses or right to residence. In spite of the disruption of the coparcenary and division of the coparcenary property as a result of the statute, the right to maintenance of the widow, widowed daughter in law and other dependent females, right to marriage expenses of unmarried daughter, right of residence of the widow, etc., are protected by the proviso. As mentioned earlier, no contention is raised in these petitions by the assessee that his case would come under Sub-section (1) of Section 4. It is also admitted that the female members of the assessee's family have no existing right as such to claim a share in the property obtained by the original assessee under a partition. But the contention is that Sub-section (2) of Section 4 gives a new right to the female members. It applies to all members of a joint Hindu family other than an undivided Hindu family referred to in Sub-section (1), which according to the assessee, takes in only coparceners and coparcenary property of an undivided Hindu family governed by the Mitakshara law. The wording of Sub-section (2) does not persuade us to accept the above contention. Sub-section (2) deals with all members of a joint Hindu family other than an undivided Hindu family referred to in Sub-section (1), which, according to us, would take in the entirety of the 4th category referred in the definition clause, viz., an undivided Hindu family governed by Mitakshara law.
12. A reference to the Statement of Objects and Reasons attached to the Bill would also show that the Legislature never intended to include under Sub-section (2) of Section 4 an undivided Hindu family governed by Mitakshara law. The Kerala Joint Hindu Family System (Abolition) Bill, 1973, was prepared on the basis of a draft Bill furnished by the Kerala Law Commission. In the first report of the Commission, the question considered was unification of the personal laws of Hindus in Kerala other than those governed by Mitkashara law or the Kerala Nambudiri's Act, 1958. In the second report, the Law Commission adverted to the question of bringing Hindus governed by Mitakshara law or the Kerala Nambudiri's Act, 1958, within the scope of the proposed legislation for abolition of joint family system. The recommendation of the Commission was as follows :
"(i) the joint family system among the Hindus governed by the Kerala Nambudiri Act or the Mitakshara Law be abolished by legislation, replacing joint tenancies by tenancies in common ;
(ii) among the Nambudiries all male and female members of the illom do become co-owners as on a given date each taking an equal share on a per capita basis ; and
(iii) among the Hindus governed by the Mitakshara law, all members of the joint family who are entitled to shares if a partition takes place on a given date be co-owners, their shares being what they would be entitled to on such a partition."
13. A revised draft bill was also proposed by the Commission in its second report and as mentioned earlier, the Bill as introduced in the Kerala Assembly was on the lines of the revised Bill prepared by the law commission. The relevant portion of the Statement of Objects and Reasons as quoted above would clearly show that the Legislature had no intention to carve out a special class from the Hindus governed by the Mitakshara law as an undivided Hindu family without coparceners or coparcenary property. For the purpose of understanding the background in which the legislation was introduced, it is permissible to look into the Statement of Objects and Reasons of the Bill. So also, the Notes on Clauses appended to the Statement of Objects and Reasons are permissible external aids while interpreting a clause in the statute.
14. We are fortified in our view regarding the effect of Section 4(2) by the statement in the Notes on Clauses, explaining the provisions of the Kerala Joint Hindu Family System (Abolition) Bill, 1973, published in Kerala Gazette, Extraordinary, dated June 16, 1973. Under Clause 4, which is equivalent to Section 4, it is stated as follows :
"This clause is intended for putting an end to the joint character of family property and converting joint property into co-ownership property.
Sub-clause (1) deals with undivided Hindu families governed by the Mitakshara system of law. It provides that on the date of the coming into force of the Act all members holding coparcenary property will become co-owners, each taking the share that he would be entitled to if a partition takes place on that date among all members of the family. The proviso saves the existing rights as regards maintenance, marriage and funeral expenses and residence.
Sub-clause (2) deals with joint Hindu families other than Mitakshara families. In the case of these families, all the members of the family will hold the family property as co-tenants with equal shares. The Madras Aliyasanthana Act, 1949, recognises only Kavaru partition. Under that Act and the (Travancore) Nanjinad Vellala Act of 1101, the division on partition is partly on the per capita and partly on the per stirpes basis. But such distinction is not maintained under Section 7 of the Hindu Succession Act, 1956, where per capita basis alone has been adopted as regards inheritance. The same principle is adopted in this sub-clause." (emphasis* supplied)
15. The above would show that all joint Hindu families other than Mitakshara families are dealt with under Sub-section (2). The exclusion is not the coparcenary alone, as contended on behalf of the assessee. Therefore, we find no merit in the case of the assessee that a joint Hindu family following the Mitakshara law consisting of the sole coparcener, his wife and daughter would come under Sub-section (2). Sub-section (2) provides that the members of the joint Hindu family will be deemed to hold the family property as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family, whether such members were entitled to claim such partition or not under the law applicable to them. The underlined portion was necessary, since there are limitations and restrictions in the matter of claiming partition for the members of the tarwad or tavazhi coming under the first category of the definition clause under Section 2 of the Act. For example, Section 33 of the Travancore Nair Act provides that subject to the provisions of Sections 34, 35 and 36 every adult member of a tarwad shall be entitled to claim his or her share of the properties of the tarwad. Section 34 provides that no member of a tarwad can claim partition during the life time of female ascendant without her consent. The conditions under which the partition could be allowed during the life time of female ascendant are also provided under Section 34. Section 35 provides that an adult member cannot be allowed to divide from minors. By virtue of the provisions contained under Section 36 every female member who claims to get a share of the tarwad properties shall also claim and shall also be entitled to get the shares of her minor children in such properties. Similarly, there are restrictions regarding the claim for partition under Sections 28 to 31 of the Travancore Ezhava Act also. It is under these circumstances, the words "whether such members were entitled to such partition or not under the law applicable to them" were incorporated in Sub-section (2) of Section 4 when the intention of the Legislature was t.o bring about an automatic disruption of the joint family and partition of the joint family property on the coming into force of the Act. It is relevant to note that the wording is not, "whether such members were not entitled to claim a share in the property on such partition or not under the law applicable to them". It is, therefore, clear that there is pre-existing right to share in the family property to all the members of the joint Hindu family to be covered by Sub-section (2) is contemplated. Since the assessee's wife and daughter have admittedly no right to claim a share in the family property, they would not come within Sub-section (2). The object of the statutory provision is clear from its wording.
16. In Deputy Commissioner of Agrl. I.T.v. R. S. Chidambaram [1994] 209 ITR 531 ; [1993] KLJ (Tax Cases) 576, an assessee under the Agricultural Income-tax Act, 1950, contended that in respect of the income received from the property which he obtained under a partition between himself, his brother and father has to be assessed in the hands of the assessee and his wife as tenants-in-common after the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975. A Bench of this court rejected the contention. It was held that the ancestral propery when allotted to the assessee under a partition and when there was no male member in the joint family, the property will take the character of his separate property. He could deal with it in any way he likes. It can gain the colour of joint family property again only if a son is born subsequently or an adoption is made. Even if the wife of the assessee was alive at the time of the partition between the assessee and his son, she may be a member in the family or unit, but not entitled to claim partition as she is not a coparcener. So long as the assessee's wife was not entitled to any share in the property on the day when the Act came into force on December 1, 1976, it cannot be taken that she holds the property as tenant-in-common with her husband. In coming to the above conclusion, the learned judges relied on passages in Mayne's Hindu Law and Usage, Mulla on Hindu Law, N. R. Raghavachariar's Hindu Law and Hindu Law by S. V. Gupte. It was therefore held that the assessee who obtained the property in a partition was holding the same as separate property on the day when the Act came into force and entire income should be assessed only in his hands as individual. Even though reliance was placed by the assessee in that case on the decisions of the Supreme Court in Gowli Buddanna v. CIT [1966] 60 ITR 293 ; N. V. Narendranath v. CWT [1969] 74 ITR 190 ; and Surjit Lal Chhabda v. CIT [1975] 101 ITR 776, the learned judges took the view that those decisions are not applicable to the facts of the case. We find no reason to disagree with the above considered view taken by a Bench of this court.
17. The questions of law sought to be referred for opinion of this court are as follows :
"(i) Whether, on the facts and in the circumstances of the case, was the Deputy Commissioner justified in holding that the assignment of status as tenants-in-common with 3 members consisting of the assessee, his wife and daughter is irregular in view of the statutory disruption of joint family status and a per capita partition of the joint family property ?
(ii) Whether, on the facts and in the circumstances of the case, was the Deputy Commissioner justified in holding that the property from which the income subjected to assessment was belonging to the assessee as his absolute share with full ownership and right of alienation, in view of the clear recitals contained in the partition deed No. 166 of 1994 in which the property allotted to each sharer is set apart for the enjoyment of the sharer along with his offspring ?
(iii) Whether, on the facts and in the circumstances of the case, the Deputy Commissioner was justified in finding that the assessment completed by the assessing authority assigning the status of tenants-in-common is irregular on the ground that only male members can be coparceners and female members are excluded from the coparcenary ignoring as it were the provisions contained in Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, providing for a statutory disruption of a joint Hindu family and per capita partition of the joint Hindu family property and a deeming provision by which each member of the family irrespective of whether such member is male or female is considered to hold his or her share separately as full owner thereof ?
(iv) Whether, on the facts and in the circumstances of the case, was the Deputy Commissioner justified in setting aside the order of the assessing authority is neither ancestral nor coparcenary property, but the self-acquired property of the assessee when it is an indisputed case that the property subjected to assessment came into the hands of the assessee by virtue of the partition effected in the family of the assessee, his father and his brothers and evidenced by document No. 166 of 1944 of the Sub-Registry Officer, Mananthavady ?"
18. In view of our conclusion that the Bench decision of this court in Deputy Commissioner of Agrl. I.T. v. R. S. Chidambaram [1994] 209 ITR 531; [1993] KLJ (Tax Cases) 576, does not require any reconsideration and that the Commissioner of Agricultural Income-tax has correctly set aside the assessment orders assigning the assessee and his wife status of tenants-in-common, we hold that there is no referable question of law arising out of the orders passed by the Commissioner.
19. In the result, the petitions stand dismissed.