S. Natarajan, J.
1. The petitioners are aggrieved by an order of assessment made against them under the Tamil Nadu Urban Land Tax Act and have, therefore, preferred this writ petition for issue of a writ of certiorari and mandamus to quash the assessment order and to direct the respondent to assess their liability, if any, under the Act as individual members.
2. One P. Quda Baksh, who is the husband of the first petitioner, and father of petitioner8 2 to 8, died on 26th July, 1970, leaving behind him about 3 grounds and 2154 sq. ft. of urban land within the limits of Tiruchirapalli Municipality. After his death, the first respondent has assessed the entire extent of land left by him in the hands of the petitioners and demanded urban land tax from them on the basis of such assessment. This was objected to on the ground that on the death of Quda Baksh, each of the petitioners became entitled to an one-eighth share in the land and as instantaneous devolution of property has taken place on Quda Baksh's death, the first respondent is not entitled to treat the entire extent of land as one holding and levy urban land tax on the same. If the land is divided into eight shares, it will not attract the imposition of urban land tax. This contention was not accepted by the first respondent because, according to him, actual division by metes and bounds should have taken place if the petitioners wanted to have the holding assessed as individual units, The second sespondent, which is the Appellate Authority, has sustained the vie v of thefirst respondent and hence the persent writ petition.
3. Mr. P.K. Jamal Mohamed, learned Counsel for the petitioners states that the view taken by respondents 1 and 2 is clearly opposed to the provisions of the Urban Land Tax Act as well as Mohamedan Law, and, therefore, there is an apparent error of law in the impugned orders. The word 'owner' in the Tamil Nadu Urban Land Tax Act, 1966, is defined thus-
(i) any person (including a mortgagee in possession) for the time being receiving or entitled to receive, whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable purposes, the rent or profits of urban land or of; the building constructed on the urban land in respect of which the word is used;
(ii) any person who is entitled to the kudiwarm in respect of any inam land;
but does not include-
(a) a shrotriamdar; or
(b) any person who is entitled to the melwaram in respect of any inam land but in respect of which land any other person is entitled to the kudiwaram.
Explanation : For the purposes of Clause (9) and Clause (10), inam land includes lakhiroj tenures of land and shrotriam land.
The charging section under the Act is Section 5 and it reads as follows:
Subject to the other provisions contained in this Act, there shall be levied and collected for every fasli year commencing from the date of commencement of this Act, a tax on each urban land (hereinafter referred to as the urban land tax) from the owner of such urban land (at the rate specified in the schedule.)
4. A Bench of this Court, to which I was a party, has held in Lakshmiammal v. Assistant Commissioner of Urban Land Tax (1975) 88 L.W. 1, that in a taxing statute, the main provision's to be looked into in order to determine the ambit of the burden the tax-payer should bear are the charging section and the provisions providing for allowance. Therefore, it follows that the liability of an owner of urban land to pay tax under the Act has to be determined with reference to the terms of Section 5 of the Act. The section imposes an obligation of paying tax on the owner of the urban land. I have already extracted the definition of the term owner found in the Act. The definition is an inclusive one and includes not only an owner who receives or is entitled to receive the rent or profits of the urban land on his own behalf, but also a mortagee in possession as well as an agent, trustee, guardian, manager or receiver who receives or is entitled to receive the rent or profits on behalf of the owner of the land. In the instant case, we have, therefore, to see whether each of the petitioners can be deemed to be an agent or trustee or manager of one another. For an answer to this question, we must look into the provisions ol the Mohamedan Law.
5. Under the Mohamedan Law, devolution of estate takes place on the heirs, immediately on the death of the owner of the property. I need only quote certain passages occurring in Mullah's Principles of Mohamedan Law, 16th Edition, page 31, in this behalf
Devolution of inheritance - Subject to the provisions of Sections 39 and 40, the whole estate of a deceased Mohamedan if he has died intestate or so much of it as has not been disposed of by Will, if he has left a Will (Section 118), devolves on his heirs at the moment of hit death, and the devolution is not suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as tenants-in-common in specific shares.
To the same effect is the following passage occurring in Tyabji's Muslim Law, 4th Edition, page 708:
Where a Muslim dies without appointing any executor, and no person obtains Letters of Administration to the deceased's estate the whole of it vests in severalty as from the time of his decease, upon his heirs in proportion to their respective right of inheritance.
From the above excerpts, it is clear that the moment Quda Baksh died, each of the eight petitioners automatically inherited an one-eighth share in his properties. Such being the case, they have become tenants-in-comm0n and cannot, therefore, be deemed as an agent or manager or representative for one another. The fact that actual division by metes and bounds has not taken place is of no consequence whatever. Their share in the property is crystallised and inheritance has taken place eo instanti Quda Baksh died. That being the case, the respondents were clearly in error in holding that without actual division by metes and bounds, all the eight petitioner will fall within the definition of 'owner' cantained in the Act.
6. Learned Government Pleader invites my attention to two unreported cases of this Court to sustain the order of the respondent. The first is by a Division Bench of this Court Abdul Khader Ibrahim v. Assistant Commissioner of Urban Land Tax, Madurai W.P. No. 852 of 1976. Apart from the judgment not giving any details of the case, there is no comparison between the facts of the instant case and the case which is cited. That appears to be a case where properties were bequeathed to several persons under a Will and in addition to that a Wakf had also been created and some of the legatees had been constituted trustees. It was in that peculiar and complicated state of affairs, this Court refused to entertain the plea of the assessees that the properties the assessees should be assessed individually in their hands for purposes of urban land tax and the Taxing Authorities should not insist upon a subdivision of the property. Such, however, is not the case here. The other case cited is in Munawar Hussaian v. Asst. Commissioner of Urban Land Tax, Madurai W.Ps. Nos. 1351 and 1437 of 1976. That judgment has merely followed the Bench judgment referred to above and does not give any reasons for rejecting the contention of the petitioner therein. Morever, it appears to be a case where boundaries were also in dispute, because the Court has observed that the petitioner can have the properties properly surveyed and demarcated under the Survey and Boundaries Act, 1923. The facts of the present case have therefore nothing in common with the cases referred to above.
7. It is brought to my attention that Ramanujam, J., has held in Asst. Commissioner of Urban Land Tax v. Urban Land Tax Tribunal, Coimbatare W.P. No. 2853 of 1977, that when an item of urban property is owned by two individuals, the Assessing Officer is not entitled to tax the holding as one unit in the absence of a division by metes and bounds of the property. I am in respectful agreement with the view taken by the learned Judge in that case. The petitioners' case is much stronger than the one dealt with by Ramanujatn, J., because this is a case of inheritance of property by Muslims, and as pointed out already the devolution takes place eo instanti the death of the previous owner had taken place.
8. In the light of the discussion contained above, it follows that the impugned order cannot be sustained The writ petition will, therefore, stand allowed with costs and fresh assessment of the property, if necessary will be done in accordance with the direction, given in this judgment. Counsel's fee Rs. 100/-.