Kerala H.C : No HUF came into existence on the marriage of the assessee in view of the Kerala Joint Hindu Family System (Abolition) Act, 1975?

Section 4

Asst. Year 1978-79

Counsel Appeared

Jose Joseph, for the Assessee : P.K.R. Menon, for the Revenue

M. FATHIMA BEEVI, J.:

The question referred for our opinion under s. 256(1) of the IT Act, 1961, is this : ” Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no HUF came into existence on the marriage of the assessee in view of the Kerala Joint Hindu Family System (Abolition) Act, 1975? “

The assessment year in question is 1979-80. The assessee, who was a member of an HUF, separated from the family on September 2, 1974. He was thereafter assessed as an individual upto and inclusive of 1978-79. He got married on June 12, 1978. In the assessment for the year 197980, the assessee claimed the status of an HUF in respect of the share income from the firm in which he was a partner. The ITO rejected the claim and held that in view of the Kerala Hindu Joint Family System (Abolition) Act, 1975, which came into force on December 1, 1976, the assessee cannot claim the status of an HUF. The AAC confirmed the assessment. The Tribunal held that in view of the abolition of the Hindu Family System by the Kerala Act, no HUF consisting of the assessee and his wife came into existence. The assessment on the assessee as an individual was, therefore, confirmed. The question of law was referred at the instance of the assessee.

Sri P. K. G. Warrier, learned counsel for the assessee, contended before us that the property obtained by the petitioner as his share in the joint family revived its ancestral character on the assessee getting married and a joint family must be deemed to have come into existence on such marriage and in the absence of any specific provision in the Kerala Act repugnant to this rule of the Hindu law, the general law is to prevail and the assessment could have been made only in the status of an HUF. As held by this Court in WTO vs. Madhavan Nambiar (1988) 169 ITR 810(Ker) , there can be no joint Hindu family in the State after December 1, 1976. It is a case of the statutory extinction of joint family. When the system has been abolished and the right by birth has been put an end to and the provision has been made for distribution of the properties owned by the joint family, the dormant character of the property obtained by individual member cannot revive and leave the imprint of joint property. Under the general law, the share falling to coparceners does not lose its character of joint family property. The HUF will come into existence on the marriage of the coparcener and the wife along with the husband can constitute an HUF. That rule cannot apply after the extinction of the HUF itself by the Act, when the joint family has been wiped off, the joint family character has been effaced and the absolute right of the individual members had been declared under the statute. Thus, by operation of law, the property held by an individual member on and after December 1, 1976, has lost its character of ancestral property and that character cannot be revived as no undivided family could come into existence or revive within the State where the system has been statutorily put an end to.

We, therefore, hold the view that the Tribunal has rightly rejected the contention of the assessee. We accordingly answer the question in the affirmative, in favour of the Revenue and against the assessee.

[Citation : 169 ITR 813]