The petitioner, who is a member of a Mohammedan family, which is admittedly governed by the Marumakkathayam law, has challenged the order, exhibit P-1, dated August 10, 1964, assessing the petitioner on the entire income of the group of persons of whom the petitioner is the head 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, exhibit P-1 cannot stand, for the petitioner cannot be assessed for the entire income of the family of the petitioner.
Apart from this, it is urged that the benefit of section 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.'
Looking into the wording of sub-section (3) of section 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.
But, if it is possible to read the staute 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.
Section 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 section 2(m) of the Act and the definition is in these terms :
'Person means any individual or association of individuals, owing 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.'
This leads to the question what a 'Hindu undivided family' is, and the definition of that term is in section 2(kk) and reads as follows :
'Hindu undivided family includes an undivided Marumakkathayam tarwad or thavazhi, an undivided Aliyasanthana family or branch, a family governed by the law applicable to Namboodiris and an undivided Mutaksahara family.'
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 section 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 Mohamedan 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 to the definition of that term contained in another statute. I am not referring to the Mappila Marumakkathayam Act for the purpose of interpreting the meaning of the words 'Marumakkathayam tarwad or thavazhi' occurring in section 2(kk) of the Act. I am referring to the Mappila Marumakkathayam Act only for emphasising the point that the legislature too has deemed it fit to refer to a Mohammedan family governed by Marumakkathayam law as a 'tarwad' or 'thavazhi'. As I said earlier, there is no reason why a family of Muslims governed by the Marumakkathayam law should not be understood as a 'tarwad' or 'thavazhi'. So understood, the family of the petitioner will fall within the definition of the term 'Hindu undivided family' under section 2(kk) of the Act. So, the benefit of section 3(3) of the Act will have to be afforded in the assessments of the petitioners family. This has not been done. I, therefore, set aside the order, exhibit P-1, and direct that a fresh assessment will be made on the 'tarwad' of the petitioner applying the provisions of section 3(3) of the Act.
This writ application is ordered on the above terms. There will be no order as to costs.