JUDGMENT

SINGH, J.:—These appeals on certificate issued by the High Court under Art. 133 of the Constitution are directed against the order and judgment of the High Court of Kerala.

2. Briefly, the facts giving rise to these appeals are: the respondent was a member of the erstwhile Nilambut Kovilagam governed by the Madras Marumakkathayam Act, she was assessed to Income-tax as Hindu undivided family as the family possessed considerable property including lands, forests and other properties. The Income-tax Officer assessed the respondent for the assessment years 1967-68, 1968-69 and 1969-70 treating the members of the family included within the HUF. Before the Income-tax Officer, the respondent raised a plea, that there had been Division of Tavazhi under a partition agreement dated 3-7-1958 whereby all lands except forest lands were divided among the members of the family. The respondent further claimed that the members of the Tavazhi swelled to 14 and these members effected a division in status by a registered document dated 21-21963. She further alleged that the Division of Tavazhi into 14 shares was effected by a Civil Court decree in partition suit No. O.S. 22/ 1961 in the Court of Kozhikode. It was pointed out on behalf of the respondent that the partition suit was decreed and the properties were allotted to the respective shareholders. The Civil Court had appointed a Commissioner to divide the property by metes and bounds in accordance to the shares of individual members. The respondent further claimed that since the status of HUF was disrupted on account of the decree of partition the HUF could not be assessed to income-tax, instead the income derived by individual members could be considered for assessment.

3. The Income-tax Officer rejected the respondents claim and assessed the respondent as the head of the Tavazhi for the assessment years 1967-68, 1968-69 and 196970 by his order dated 16-3-1970/27-3-1970. The Income-tax Officer held that the decree of the Civil Court merely conferred right on the members of the family for separate possession of the land falling to their share after the physical partition, and the final partition could be made on application made by individual members after depositing Commissioners fee. Since the Civil Court decree was a preliminary decree and no final decree had been passed and no actual partition had been effected and no physical partition by metes and bounds had taken place in pursuance of the decree of partition, the status of HUF continued for purposes of assessment. The Income-tax Officer observed that earlier the assessee was assessed having the status of HUF, and since no other evidence except the decree of the Civil Court had been produced by her to show that there has been a real partition, therefore, the assessees claim for partition could not be accepted. The respondent filed a writ petition in the High Court under Art. 226 of the Constitution for quashing the orders of the Income-tax Officer on the ground that he failed to recognise the disruption of HUF in making the assessment. A learned single Judge of the High Court allowed the writ petition. and quashed the assessment orders. On appeal at the instance of the Revenue, a Division Bench of the High Court affirmed the order of the single Judge. On an application made on behalf of the Revenue the High Court granted certificate under Art. 133 of the Constitution. Hence these appeals.

4. The learned single Judge held that S. 171 of the Income-tax Act does not apply to a case where the division was effected before the commencement of the accounting period, and the HUF having received no income during the accounting period it could not be assessed to tax notwithstanding the fiction introduced by S. 171. In appeal the Division Bench held that there was no express provision in S. 171 nor was there any necessary implication arising from the provisions of the Section that the income of the family after its division must be treated o