Joint Hindu family abolition law does not create partition rights for non-entitled family members; separate property treatment applies.

Section 4(2) of the Kerala Joint Hindu Family System (Abolition) Act, 1975 applies only where family members already have a pre-existing right to a share on partition; it does not create a new share for a wife or daughter who had no such right under the applicable Hindu law. The Court followed the principle that property held by a sole coparcener remains separate property where no other coparcener exists. On that construction, the assessee's property could not be treated as joint family property, assessment as tenants-in-common was not sustainable, and no referable question of law arose from the Commissioner's refusal to make a reference.

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Issues: Whether, on the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the property held by a sole coparcener with his wife and daughter could be treated as joint family property so as to attract section 4(2) and justify assessment of the family as tenants-in-common, and whether any referable question of law arose from the Commissioner's order refusing reference.

Analysis: The scheme of the Kerala Joint Hindu Family System (Abolition) Act, 1975 shows that section 4(1) deals with coparcenary property of an undivided Hindu family governed by Mitakshara law, while section 4(2) applies to joint Hindu families other than those covered by section 4(1), namely families in which the members already have a pre-existing right to a share on partition. The Court held that the assessee's wife and daughter had no such right in the property obtained by the assessee under partition, and that the provision does not create a new right in favour of persons who were not entitled to claim a share under the applicable Hindu law. The earlier decision holding that the property of a sole coparcener without another coparcener remains his separate property was followed, and the contrary construction of section 4(2) was rejected.

Conclusion: Section 4(2) was inapplicable, the assessee's property remained separate property, and the assessment as tenants-in-common could not be sustained. No referable question of law arose.

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