Subba Rao, J.-This is an appeal against the order of the Court of the District Judge of West Tanjore scaling down the decree under section 19 of Madras Act IV of 1938. For appreciating the facts and the contentions of the parties the following genealogy may usefully be referred to:

The branches of Ramalinga and Sabapathi had become divided in 1926. But in the partition certain immoveables and cash outstandings were left undivided and they were in the management of Ramalinga. Ramalinga and his sons became divided between 1934 and 1936. In spite of the division Ramalinga continued to be in management of the assets not divided. During the lifetime of Ramalinga he was assessed to income-tax in regard to the income of the property left undivided and after his death his son Kayarohana was also assessed in respect of the same income. After Kayarohana’s death Subramania was assessed in the same manner. Subsequently in O.S. No. 3 of 1938, a partition suit filed in the District Court of West Tanjore, the undivided assets also were divided between the members of the family. The appellants obtained a decree in O.S. No. 5 of 1934, against Mariappa Thevar and others. Mariappa filed I.A. No. 299 of 1944 for scaling down the decree under section 19 of Madras Act IV of 1938. The decree-holders relied upon section 5 of Act IV of 1938, and contended that as the family was assessed to incometax the petitioner being a member of the family could not get the decree scaled down. The learned Judge held that at the time when Kayarohana was assessed to income-tax as representing the undivided Hindu family the family was really disrupted and therefore section 5 had no application. In that view he scaled down the decree as prayed for. The decree-holders preferred the above appeal. The learned counsel for the appellants argued that section 5 of the Madras Agriculturists Relief Act, 1938, directly applies to the facts of this case. Section 5 reads as follows:

“Where an undivided Hindu family other than a Marumakatayam or aliyasantana tarwad or tavazhi is assessed to the taxes specified in provisos (A), (B) and (C) to section 3(ii), or falls within the category of persons specified in proviso (D) to the same section, no person who was a member of the family on the 1st October, 1937, shall be deemed to be an agriculturist for the purposes of this Act except section 13.”

The first contention of the learned advocate is that section 5 applies whether the Hindu family is joint or divided in status. He argued that the Legislature intentionally used the words “undivided Hindu family” in contra-distinction to the well-known concept “the joint Hindu family” under the Hindu Law. He reinforced his argument by referring us to section 25-A of the Indian Income-tax Act. This argument not only ignores the principle underlying section 5 but also the meaning of the express words used therein. Under Hindu Law a Hindu family is either undivided or divided and a division may be by metes and bounds or in status. To describe a divided family either in status or by metes and bounds as an undivided Hindu family is a contradiction in terms. Further under the Act this disqualification is imposed upon a member of an undivided Hindu family as in law it is treated as one entity and a member thereof so long as he continues to be a member of the family has no separate or independent rights de hors the family towards third parties. This conception of Hindu Law is recognised by section 3(i) of the Act where a person is defined as including an undivided Hindu family. A decision of a Bench of this Court in Venkatakutumba Rao v. Veerabhadrudu1, supports this construction of the section. In that case though a debtor had become divided from his uncle as the result of a partition suit decreed on 30th March, 1936, the uncle was assessed to income-tax in ignorance of such division as manager of a joint Hindu family for 1936-37. The learned Judges held,

“That under Madras Act IV of 1938, the fam