Interpretation of the definition of 'Hindu undivided family' to include Mohammedan families governed by marumakkathayam law.

1. The petitioner, who is a member of a Mohammedan family, which is admittedly governed by the marumakkathayam law, has challenged the order Ext. P-1 dated 10 81964 assessing the petitioner on the entire income of the group of persons of whom the petitioner is the bead and who are governed by marumakkathayam law, for the years 1959-60,1960-61,1961-62,1962-63 and 1963-64. It is clear that the order Ext. P-1 cannot stand, for the petitioner cannot be assessed for the entire income of the family of the petitioner.

2. Apart from this, it is urged that the benefit of S.3(3) of the Agricultural Income-tax Act, 1950 is also available in the matter of assessment of the family of which the petitioner is the head and that the assessing authority has wrongly refused to apply the section That sub-section is in these terms:

"In the case of a Hindu Undivided family consisting of more than five members entitled to claim a share on partition and whose agricultural income exceeds six thousand rupees, the tax shall, be assessed at the average rate applicable to the share of the agricultural income due to five members of the family or to six thousand rupees, whichever is higher."

3. Looking into the wording of sub-section (3) of S.3 alone, it will prima facie appear that the Section will only apply to a 'Hindu' undivided family. If such is the manner in which the sub-section should be read, it is urged by counsel on behalf of the petitioner, that the Section is discriminatory and therefore should be struck down.

4. But, if it is possible to read, the Statute so as to make it consistent with the provisions of the Constitution, the attempt must always be to so read the statute as to uphold its validity.

5. S.3 (1) of the Act states that agricultural income-tax at the rate or rates specified in the schedule to the Act shall be charged for each financial year in accordance with and subject to the provisions of the Act, on the total agricultural income of the previous year of every person. "Person" has been defined in S.2 (m) of the Act and the definition is in these terms:

"Person" means any individual or association of individuals, owning or holding property for himself or for any other or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes a Hindu undivided family a firm or a company, an association of individuals whether incorporated or not, and any institution capable of holding property;"

6. This leads to the question what a "Hindu undivided family" is, and the definition of that term is in S.2 (kk)-and reads as follows:

"Hindu undivided family" includes an undivided Marumakkathayam tarwad or tavazhi, an undivided Aliyasanthana family or branch, a family governed by the law applicable to Namboodiris and an undivided Mitakshara family;"

7. If the expression "Marumakkathayam tarwad or thavazhi" can be taken to comprehend the family of Mohammedans governed by Marumakkathayam law, those families will also fall within the definition of the term "Hindu undivided family" in S.2 (kk). There is nothing in the expression "Marumakkathayam tarwad or thavazhi" which by itself connotes religious faith of the members of that family. The word "Marumakkathayam" pertains generally to a system of law governing a body of persons and a group of persons governed by that law came to be called a tarwad, though perhaps it applied in its inception only to 'Hindus'. For a very long time the Mohammedans in these areas were following the same law and if they refer to their families as 'tarwads' or 'tavazhies', there is nothing wrong or out of tune in that. There is an Act, called the 'Mappila Marumakkathayam Act' and this Act defines 'tarwad', and that definition is applicable to Mohammedan families governed by marumakkathayam law. It is no doubt undesirable and perhaps dangerous to interpret the meaning of a word in one Statute with reference