Judgement

SHAH, J.:- Rajah Padmanabha Ravi Varma was the karta of a Hindu undivided 1096 family governed by the Marumakkattayam law. On his death in 1961 the appellant - his brother - became the karta of the family. In 1909 the members of the family, while remaining joint, had entered into an arrangement for separate enjoyment of certain properties of the family by different members. For the assessment year 1958-59 Rajah Padmanabha filed, in the status of a Hindu undivided family, a return under the Expenditure Tax Act of the taxable expenditure incurred by him in respect of the property under his "personal control and direct enjoyment." The Expenditure-tax Officer added thereto the expenditure incurred by the other members of the family in respect 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 then moved petitions before the High Court of Kerala under Article 126 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 the Expenditure-tax Act 29 of 1957 is the charging Section ; in so far as it is relevant it reads:

"(1) Subject to the other provisions contained in this Act, there shall be charged for every financial year, commencing on and from the first day of April, 1958, a tax (hereinafter referred to as expenditure-tax) at the rate or rates specified in the Schedule in respect of the expenditure incurred by any individual or Hindu undivided family in the previous year:

Provided that * * * * *

* * * * * * * * "

Under the charging section tax is imposed on individuals and Hindu undivided families. An undivided family which consists of Hindus alone may be treated as a unit of assessment: an undivided family whose members are not Hindu will be assessed to tax as an "individual". Counsel for the appellant contends that whereas a Hindu family governed by the Marumakkattayam law is assessed to expenditure-tax on the total expenditure incurred by all the members of the undivided family, because the unit of taxation under Section 3 is the Hindu undivided family, a Mappilla undivided family governed by the Marumakkattayam law in North Malabar is liable to be assessed to tax as an individual", and on that account at a lower rate.

5. Marumakkattayam law applied originally by usage to a Section of the Hindus inhabiting the South-Western coastal region in India. Some centuries ago a section of the Hindu inhabitants of North Malabar were converted en masse to Islam, but they still continued to remain governed by the Marumakkattayam law especially in matters of property relations among members of the family. The law administered by the Courts to these communities is, subject to express statutory provisions, a body of customs and usages which have received judicial recognition.

6. The Mitakshara law of joint family is founded upon agnatic relationship: the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line. The principal incident of Marumakkatta