RAJAGOPALA AYYANGAR, J. :- This is a reference under S. 113 Civil P.C. by the learned Subordinate Judge of Mangalore.

2. Three suits O.S. Nos. 23 of 1951, 177 and 182 of 1952 were filed in the Court of the Subordinate Judge of Mangalore for partition of the properties belonging to three Aliyasanthana families under the provisions of S. 36, Madras Aliyasanthana Act, 1949. The immovable properties which were the subject-matter of the suits are situated in th3 district of South Kanara. Most of the defendants in the several suits reside in the State of Madras except that some of the defendants in O.S. No. 182 of 1952 are said to have settled down in Coorg long before the Act came into force.

A detailed written statement was filed, in O.S. No. 182 of 1952 by defendant 177 who was the Manager of the family in dispute which was treated by the Subordinate Judge as the main statement in the cases, and in this the plea was raised that the Madras Aliyasanthana Act, 1949 was beyond the competence of the Provincial Legislature under the Government of India Act, 1935. It was also urged that the enactment was subject to the vice of extra-territoriality.

Article 14 of the Constitution was also relied upon impugning the validity of the provision regarding the shares assigned by the enactment to the several members in a partition. As the Subordinate Judge was in agreement with the points set out as regards the validity of the enactment, he has submitted a statement of the case raising the following points for the opinion of this Court :

(1) Whether Chapter 6, Madras Aliyasanthana Act 9 of 1949, which was passed by the Madras Legislative Assembly and which received the assent of His Excellency the Governor General on 13-4-1949 is repugnant to Cl. (3) of S. 100, Government of India Act, 1935 and ultra vires ?

(2) Are the subjects of joint family and partition in respect of which parties in judicial proceedings were governed by their customary personal law before the enactment of the Madras Aliyasanthana Act 9 of 1949 included in any of the lists 2 and 3 of Schedule 7 Government of India Act, 1935 ?

(3) Is the scheme of fixation of shares at a partition in an Aliasanthana family as provided by S. 35, Aliyasanthana Act 9 of 1949 arbitrary in its application, discriminatory and unreasonable in its operation and confiscatory in effect and therefore offends the fundamental rights secured by the Constitution of India ?

3. The Madras Aliyasanthana Act, 1949 enacted by the Legislature of this Province deals with various topics pertaining to the followers of the Aliyasanthana system of inheritance but as the suits out of which this reference arises are for partition, we are concerned only with the validity of the provisions relating to this topic contained in Chapter 6 of the Act.

4. The challenge to the validity of this Chapter was, before us, rested on three grounds :

1. The Provincial Legislature constituted under the Government of India Act 1935 was not legally competent to enact the measure, for the reason that "the pith and substance" of the legislation or the subject-matter of the enactment was not comprehended within any of the items in Lists 2 or 3 of the Legislative Lists in Sch. 7.

2. The provisions were subject to the vice of extra territoriality and that the portions thus vitiated and those which related to the territory with in the jurisdiction of the Legislature were so inextricably interwoven that the entire chapter should be pronounced invalid.

3. The provisions of this Chapter contravene the fundamental rights guaranteed by Arts. 14, 19 and 31 of the Constitution of India and therefore the chapter should be struck down under Art. 13 as unconstitutional, after the coming into force of the Constitution of India. We shall consider these three objections in that order.

5. Legislative competence to enact Chapter 6 : The argument under this head is founded upon a law relating to partition in a Mitakshara family, in a Marumkkathayam tarwad or an A