Judgment :- 1. The only question for determination in this appeal is whether the assessment made on the assumption that the assessee is an undivided Marumakkathayam tarwad is justified or not. The assessment is under the Agricultural Income-tax Act, 1950, and the assessment year concerned is the financial year which ended on the 31st March 1962. The contention of the appellants - the State of Kerala and the Agricultural Income-tax Officer, Kozhikode - is that the assessment is justified, and that the conclusion to the contrary in the judgment under appeal cannot be sustained. 2. It is common ground that even though there has been a preliminary decree for partition the properties of the tarwad have not yet been divided by metes and bounds. It is also clear that the tarwad has hitherto been assessed as undivided, and that those assessments have become final. 3. Sub-section (1) of S.29 of the Agricultural Income-tax Act, 1950 (omitting the proviso thereto) reads as follows: "Where at the time of making an assessment under S.18 it is claimed by or on behalf of any member of a Hindu undivided family, or Aliyasanthana family or branch or Marumakkathayam tarwad hitherto assessed as undivided that a partition has taken place among the members or group of members of such family or tarwad, the Agricultural Income-tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect:" This provision corresponds to sub-section (1) of S.25-A of the Indian Income-tax Act, 1922. The case law on that sub-section makes it quite clear that once a family has been assessed as a joint family it should continue to be so assessed until an order has been made under that sub-section, and that no order can be made under that sub-section until there has been a physical division of the family property. 4. This is evident from sub-section (3) of S.29 of the Agricultural Income-tax Act, 1950. 4. This is evident from sub-section (3) of S.29 of the Agricultural Income-tax Act, 1950. That sub-section says that "where such an order" - an order under sub-section (1) of S.29 - "has not been passed in respect of a Hindu family, or Aliyasanthana family or branch or Marumakkathayam tarwad hitherto assessed as undivided, such family or tarwad shall be deemed for the purposes of this Act to continue to be an undivided family or tarwad." 5. Counsel for the respondent drew our attention to sub-section (5) of S.3 of the Agricultural Income-tax Act, 1950, which says: assessment should be on that basis. The fallacy in the submission lies in ignoring the mandate of the Legislature embodied in sub-section (3) of S.29. That mandate is to the effect that no Hindu family, or Aliyasanthana family or branch or Marumakkathayam tarwad which had previously been assessed as undivided should be considered as disrupted for the purposes of the Agricultural Income-tax, 1950, unless and until there has been a physical division of the properties by metes and bounds. 6. We are fortified in this view by the decisions in Sunder Singh Majithia v. Commissioner of Income-tax (AIR. 1942 P. C. 57), Srilalan v. Impeding Assistant Commissioner of Agricultural Income-tax and Sales-tax (1958 KLJ. 435) and Joint Receivers of the Estate of Dewan Bahadur C. Arunachala Mudaliar v. Commissioner of Income-tax (1961-41 ITR. 432), and it is unnecessary to go over the ground afresh. It was suggested that the words "hitherto assessed as undivided" meant "hitherto validly assessed as undivided" and that the prior assessments were incorrect. The assessee did not challenge the correctness of those assessments in appropriate proceedings and we cannot but proceed on the basis that they have become final and conclusive. 7. Counsel for the respondent also submitted that no appeal has been filed against the decision in O.P. No. 485 of 1961 and that the said decision will operate as res judicata. That O.P. had nothing to do with the agricultural income of the tarwad before us and we are unable to see any merit in this contention. It follows that the Writ Appeal should be allowed and we do so with costs, advocate's fee Rs. 100/-. Allowed.