( 1 ) IN this petition we are concerned with the vires of the Wealth Tax Act (Act XXVII of 1957) so far as it relates to the levy of wealth tax on Hindu undivided families. The petitioner claims that section 3 of the Wealth Tax Act is ultra vires of the Union Parliament in so far as it authorised the levy of wealth tax on the net wealth of a Hindu undivided family.

( 2 ) BY Section 3 of the Act there is to be charged for every financial year commencing on and from the 1st day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule. The petitioners case is that to the extent the Union Parliament has provided for the levy of wealth tax on Hindu undivided families as units the legislation is beyond its power and this contention is supported with reference to the language of entry No. 86 in List 1 of the 7th Schedule to the Constitution of India. That entry is in the following words :- "taxes on the Capital value of the assets, exclusive of the agricultural land, of individuals and companies; tax on the capital of companies. " The contention is that this entry only empowers legislation for the imposition of wealth tax on individuals and companies but that the entry does not empower legislation imposing a tax on Hindu undivided family wealth. The contention is that a Hindu undivided family is not an individual nor a collection of indiviuals but that it stands on its own footing and that this is recognised both by Hindu law and by legislative Practice relating to taxation and that, therefore, the legislative field given to entry No. 86 does not cover hindu undivided family wealth but covers only that of individuals and companies. It is contended that a Hindu undivided family is more in the nature of a corporation and is not in the nature of collection of individuals. It is contended that in a Hindu undivided family there is a community of interest and a unity of possession between all the members of the family and until partition takes place there is common enjoyment and common possession of the Property and that a Hindu undivided family, therefore, is not in substance a collection of individuals. It is contended that for this reason it is treated in taxation legislation as being distinguishable from either an individual or an association of individuals or persons. A reference has been invited to Section 3 of the Income-tax Act which charges to income-tax the total income of the previous year of every individual Hindu undivided family, company and local authority and of every firm and other associations of persons or the partners of the firm or the members of the association individually. It is contended that in the Finance Act of successive years this distinction between an individual, a person and a Hindu undivided family is clearly maintained and there is difference both in rates of taxation and in exemption based on the difference. It is further contended that the distinction between "individual" and a "hindu undivided family" is also maintained in the Business Profits tax Act, 1947 and, that therefore, there was a well established legislative practice whereunder a hindu undivided family was placed upon a footing of its own before the coming into force of the constitution of India. Therefore, it is contended that if entry No. 86 was meant to cover a field of taxation of the capital value of the assets so far as Hindu undivided families were concerned then the entry would have expressly contained the words "hindu undivided family".

( 3 ) THERE can be no gainsaying that the Hindu undivided family is a Peculiar institution. The interests of the members of a Hindu undivided family in the joint property are fluctuating and the interests of one member of the family impinges upon the interest of the other. Even an unborn person "en ventre sa mere" acquire