The main legal point established is that the statutory disruption of the joint family system in Kerala does not eliminate the joint family character for the purpose of income tax assessment, unless a physical division of properties has occurred.

1.The petitioners are brothers. They belong to a Namboodiri Illom. Subsequent to a partition in the family in 1957, each of them has been in separate possession and enjoyment of the respectively allotted portion of the properties. Each has a family of his own and has been assessed to income tax separately in the status of Hindu undivided family. During the accounting year relevant to the assessment year 1977-'78 the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force with effect from 1-12-1976. (I shall refer to this Act as the "State Act" or the "Abolition Act" as the context requires). In the course of the assessment proceedings, each of the assessees (petitioners) contended that, in view of the Abolition Act, he should no longer be assessed in the status of Hindu undivided family, but as the full owner of bis separate share as if a partition had taken place in his family. This contention was rejected by the Income-tax Officer by his impugned orders in respect of each of the petitioners on the ground that the Abolition Act did not bring about a physical division of the properties held by the Hindu undivided family so as to warrant a finding of partition in terms of S.171 of the Income-tax Act. This finding of the Officer is challenged by the petitioners. Their principal contention is that to a "Kerala Hindu Undivided Family", abolished by the State Act, S.171 of the Incometax Act has no application, and it is repugnant to the provisions of the State Act, for the family is not only disrupted, but the system or the concept itself has been statutorily abolished. The question therefore is, does S.171 of the Income-tax Act apply to the petitioners or is it repugnant to the State Act, as they contend?

2. The Abolition Act replaced the joint tenancy in the properties held by members of every'joint Hindu family' in Kerala by tenancy in common. The Act was passed by the State Legislature, by virtue of its powers under entry 5 of the Concurrent List in the Seventh Schedule to the Constitution, after obtaining the consent of the President of India. The petitioners rightly contend that any provision of the Income-tax Act which is repugnant to any provision of the Abolition Act will be of no effect, for Art.254(2) of the Constitution says that the State law with respect to a matter in the Concurrent List shall prevail in the State over an earlier law made by Parliament or an existing law with respect to the same matter, provided the State law has received the consent of the President. But is there any repugnancy between the two enactments?

3. Counsel for the petitioners Shri. G. Sivarajan submits that after the coming into force of the State Act, there is no longer a joint Hindu family in Kerala which can be assessed as such, or which can be be deemed to continue as such for the purpose of assessment by importing a fiction in terms of S.171 of the Income-tax Act. Only the individual members of the erstwhile families are liable to be assessed in respect of the income earned from the properties allotted to them.

4. I shall first consider the relevant provisions of the State Act. The object of the enactment is to abolish the joint family system among Hindus in the State. The petitioners belong to a Namboodiri illam which is included in the definition of the joint Hindu family. S.4 of the State Act provides:

"4. Joint tenancy to be replaced by tenancy in common:

(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:

Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparc