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TMI Blog1969 (2) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of properties set apart for their use and enjoyment. The Expenditure-tax Officer also served a notice of assessment Under Section 15(2) calling for a return of expenditure by the Hindu undivided family for the assessment year 1959-60. 2. The appellant them moved petitions before the High Court of Kerala under Article 226 of the Constitution for writs quashing the assessment and the notice of demand for the year 1958-59 and the notice calling for a return for the assessment year 1959-60 contending, inter alia, that he was not liable to be assessed to tax on expenditure incurred in respect of property not under his personal control and direct enjoyment . A single Judge of the High Court of Kerala upheld the contention. In appeal a Division Bench of the High Court set aside the order of the single Judge. 3. The appellant contends that the law which enables the Expenditure-tax Officer to assess tax on the expenditure of all members of the Hindu undivided family governed by the Marumakkattayam law, discriminates, on the ground of religion, between the Hindu undivided family and a Mappilla undivided family governed by the Marumakkattayam law resident in North Malabar. 4. Section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the members. On death of the interest of a member devolved by survivorship. Management of the family property remained in the hands of the eldest male member, and in the absence of a male member a female member. A tarwad may consist of two or more branches known as thavazhies; each tavazhi or branch consisting of one of the female members of the tarwad and her children and all her descendants in the female line. Every tarwad consisted of a mother and her children-male and female-living in commensality, with joint rights in property. 7. The District of Malabar formed part of the State of Madras till October 31, 1956. The customary Marumakkattayam law applicable to Malabar was modified in certain respects from time to time by the Madras Legislature e.g. the Malabar Marriage Act 4 of 1896. the Malabar Wills Act 5 of 1898. But the law relating to property relations between the members of the tarwad remained in its customary form till the fourth decade of this century. Under the customary law partition of the property of the family could not be claimed by an individual member or even by a thavazhi. It was so laid down by a course of judicial decisions for over 75 years, and this rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overned by the Marumakkattayam law. 9. The Hindu Succession Act 30 of 1956 also made inroads upon the customary law. Section 3(h) defined the expression Marumakkattayam law , and by Section 7 it was provided that if a Hindu to whom the Marumakkattayam or Nambudri law would have applied, if the Hindu Succession Act had not been passed, dies, his or her interest in the property of a tarwad, tavazhi or illom shall devolve by testamentary or intestate succession, not according to the Marumakkattayam law or the Nambudri law, but under the Hindu Succession Act. By Section 17 of the Act Sections 8, 10, 15 and 23 apply to persons governed by the Marumakkattayam law subject to certain modifications. 10. The Hindu Adoptions and Maintenance Act 78 of 1956 and the Hindu Marriage Act 23 of 1955 also apply to Hindus governed by the Marumakkattayam law and modify the law relating to family relations. 11. Initially a common system of law relating to family property of the tarwad was applicable to Hindus and Mapillas governed by the Marumakkattayam law. Since the enactment of Madras Act 22 of 1933 and the other Acts governing the Hindus, and Act 17 of 1939 governing the Mappillas, points of similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of classification. The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways : the Legislature may select persons, properties, transactions and objects, and apply different methods and even rates of tax, if the Legislature does so reasonably. Protection of the equality clause does not predicate a mathematically precise or logically complete or symmetrical classification : it is not a condition of the guarantee of equal protection that all transactions, properties, objects or persons of the same genus must be affected by it or none at all. If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax in different ways and adopt different modes of assessment. A taxing statute may contravene Article 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of taxation and imposed tax at the rates prescribed. To fall within the description the unit must be an undivided family of Hindus. Within the expression Hindu undivided family will fall an undivided family of Hindus governed by the Marumakkattayam law. Even though the basic scheme of a Hindu undivided family governed by the Mitakshara law and the Marumakkattayam law is different in two important respects, viz. the descent is through females and children both males and females have equal rights to property-these families are still Hindu undivided families. The law applicable to Hindu undivided family governed by the Marumakkattayam law, and to the Mappilla tarwad in North Malabar has the same characteristics in two principal respects- (a) descent is traced through females; and (b) there is community of interest and unity of possession in respect of the family property. But the laws applicable to those families in other respects widely differ. 18. The Mappilla families governed by the Marumakkattayam law reside in a small part of the country and form numerically a small community. The Parliament has' again been accustomed in enacting tax laws to make a distinction between a H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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