JAGADISAN J. - These are two petitions under article 226 of the Constitution of India. In W.P. No. 1023 of 1961, the petitioner prays for the issue of a writ of prohibition to forbear the Wealth-tax Officer, Special Investigation Circle 'A', Madras, from taking further proceedings, pursuant to the notices issued by him on 15th of June, 1960, and 18th of August, 1961. The petitioner in W.P. No. 1060 of 1961 also prays for a writ of prohibition for restraining the Expenditure tax Officer Special Investigation Circle 'A', Madras, from taking further proceedings in pursuance of his notice dated 24th of August 1960. The main attack of the petitioners in these two petitions is levelled against the validity of the charging provision of the Wealth tax Act and the Expenditure-tax Act.
The petitioner in W.P. No. 1023 of 1961 states that he is the manager of a Hindu undivided family consisting of himself and his sons, and that he is an assessee on the file of the Wealth-tax Officer, Special Investigation Circle 'A' Madras. The Wealth-tax Officer issued a notice dated 15th June, 1960, under section 14(2) of the Wealth-tax Act, i957, calling upon the petitioner to file a return of his wealth, for the purpose of making an assessment under the Act for the assessment year 1960-61. The petitioner submitted his return. The Wealth-tax Officer next issued a notice dated 18th August, 1961, requiring the petitioner to furnish certain information necessary for making the assessment. Without furnishing that information, the present petition has been preferred, on the ground that the charging section of the Wealth-tax Act, 1957, section 3, is invalid and unconstitutional. The petitioner alleges that section 3 violates the equality clause of the Constitution. The point of attack is that section 3 is discriminatory, inasmuch as it singles out only the Hindu undivided family, leaving out from its ambit Marumakkathayam towards, particularly the Mappila tarwads governed by the Mappila Marumakkathayam Act, 1939. In support of this contention reliance is placed upon a decision of the Kerala High Court in C. K. Mammad Keyi v. Wealth-tax Officer in which it has been held that the wealth-tax Act, 1957, denies equal protection of the laws to Hindu undivided families, as such families have been singled ot by the Act from other similar joint families. The department has filed a counter-affidavit stating that section 3 is not in any way discriminatory, that all persons owning wealth fall within the e category of individuals or Hindu undivided families, and that, if Marumakkathayam tarwads or Mappila tarwads could not be comprehended within the expression 'Hindu undivided family', they would yet come within the description of 'individuals.' So the only question in W.P. No. 1023 of 1961 is whether section 3 of the Wealth-tax Act, 1951, offends article 14 of the Constitution.
The petitioner in W.P. No. 1060 of 1961 states that he is the manager of the Hindu undivided family consisting of himself and his sons, and that he is an assessee on the file of the Expenditure-tax Officer, Special Investigation Circle 'A', Madras. It is alleged that the Expenditure-tax Officer issued a notice on 24th August, 1960, under section 13(2) of the Expenditure-tax Act, 1957, (Act 29 of 1957), calling upon the petitioner to file a return of his expenditure in connection with the proposed assessment under that Act for the assessment year 1960-61 and that the petitioner has filed a return. The officer issued a further notice on 27th October, 1960, making a provisional demand for payment of s sum of Rs. 17,002.40 nP. alleged to be the expenditure-tax payable by the petitioner for the year ending 31st March 1960, relevant to the assessment year 1960-61. The petitioner submit that section 3 of the Expenditure-tax Act, 1957, which authorises the levy of expenditure-tax on every individual or Hindu undivided family violates article 14 of the Constitution. The ground of attack is thus set out in paragraph 6 of the affidavit in support of the petition :
'I submit that, to the extent to which section 3 authorises the levy of an expenditure tax on Hindu undivided families, it is discriminatory in that such a tax could not be levied on other joint families such as umakkathayam tarwads, etc. I, therefore, submit that the provisions of the Expenditure-tax Act, in so far as they relate to the levy of an expenditure-tax on Hindu undivided families, are discriminatory against Hindu undivided families and there by infringe the provisions of equal treatment guaranteed to every person under article 14 of the Constitution of India.'
The petitioners contention is again based upon the decision of the Kerala High Court rendered under the Wealth-tax Act, holding that the Hindu undivided families have been discriminated against by the legislature omitting tarwads, Hindu or Muslim, governed by the Marumakkathayam law. It may at once by stated that section 3 of the Expenditure-tax Act uses the expression, 'Individuals or Hindu undivided family', the same as in the Wealth-tax Act; and whichever view we take regarding the vires of section 3 of the Wealth-tax Act would equally govern the charging provision in the Expenditure-tax Act. We do not proposed to discuss the question of the vires of the Expenditure-tax Act, 1957, separately.
We shall now take up for consideration the question whether section 3 of the Wealth-tax Act, 1957, is unconstitutional, on the ground that it is repugnant to the fundamental right guaranteed by the Constitution under article 14. Section 3, which is the target of attack, reads :
'Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first 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.'
(By a subsequent amendment, 'companies' have been removed from the ambit of this charging section).
The 'net wealth' of an assessee, as defined by section 2(m) of the Act means the amount by which the aggregate value of the assets, as computed in accordance with the provisions of the Act, is in excess of the aggregate value of the debts, excluding those of specified categories, owed by the assessee. 'Valuation date' means the last day of the previous year as defined in section 2(11) of the Income-tax Act. 'Assets' mean property of every description, movable or immovable, subject to specified exceptions.
Section 4, 5 and 6 indicate the manner in which the computation of the net wealth is to be made. Section 7(1) of the Act provides that assets have to be valued according to the market price prevailing on the 'valuation date.'Then follows other provisions, which lay down the machinery for assessment, levy and collection of the tax. The rates of tax are specified in Parts I and II of the Schedule. The rates for individuals and for Hindu undivided families are different. In the case of an individual there is no tax on the first two lakhs of rupees of net wealth, while the Hindu undivide family is tax-free for the first four lakhs of rupees. The schedule prescribes a progressive graduated tax, according to the quantum of the net wealth owned by the assessee. The general scheme of the Act, therefore, is to assess to tax wealthy, persons, who happen to own wealth beyond a particular limit fixed by the stature. It seems to be quite clear that the charge is against the wealth to be found in the hands of persons, who may be described either as 'individuals' or as 'Hindu undivided families.'
Mr. M. K. Nambiar, learned counsel for the petitioners, did not contend that the Act was discriminatory, because 'individuals' suffered more tax than 'Hindu undivided families.' It must be noted that 'individuals' are exempt only for the first two lakhs, while a Hindu undivided family is more favorably treated because of the exemption up to four lakhs of rupees. He fairly conceded that the classification adopted by Parliament in dividing the assessees into three broad categories, as they originally stood, namely, 'individuals, Hindu undivided family and company' would be reasonable and proper. His contention, however, was that there was discrimination against the Hindu undivided families, by reason of the omission of the Mappila tarwads and Nambudri illoms or any other Marumakkathayam tarwads, which are spread over large extents of territory in the State of Kerala. The argument was developed thus : The Malabar tarwads, Hindu or Muslim are also institutions akin to Hindu undivided families, and there is no reason why these institutions should not be placed on a par with the Hindu undivided families, which, in contrast with individuals, occupy a more favorable tax position. According to the learned counsel, Malabar tarwads are wholly outside the Act, as they could not be comprehended within the expression 'individuaa' or 'Hindu undivided family', and such an omission, learned counsel pointed out, amounts to a manifest discrimination. The further argument was that, if Malabar tarwads could be brought within the expression of 'individuals', then there was no rationale or reasonableness why these tarwads should not enjoy the same privileges and concessions Parliament has shown to the Hindu undivided families.
It is now well-settled that a taxing enactment is not outside the scope of the equality clause of the Constituiton. The Supreme Court has made it quite clear in its decision, Thathunni Moopil Nair v. State of Kerala that, whatever may be the subject-matter of legislation by the Union or the State, the cardinal rule is, 'equality amongst equals'. The Government should hold the scales even as between subjects similarly placed, without preference or favored treatment or invidious discrimination. Confining ourselves to taxing measures, as we are now concerned only with such an Act, we can state without hesitation that the equality provision does not compel the Government to tax all or none. The subject of taxation and the persons to be taxed are matters within the exclusive domain of the legislature, but it cannot discriminate dealing with unequal hands. It can 'classify' rationally and intelligibly with due regard to the object and purpose of the Act, but in cannot wield omnipotency to deny equal treatment to equals. This power to classify, it has been repeatedly held, is not any arbitrary selection, for vagary cannot go by the name of classification.
'A classification for tax purposes is in effect nothing more than a legislative determination as to how that burden is to be distributed and it is wholly proper that a court should measure the reasonableness of that determination by generally accepted theories as to the proper bases for distributing that burden.' (Rottschafer on American Constitution, pages 665-666).
It is no violation of the equality rule in respect of tax law that the incidence of tax upon particular taxpayers results in payments of unequal amounts. Progressively graduated tax on income or wealth based on the quantum does not offend article 14. The tax must be uniform upon the same classes of subjects. Dissimilar treatment of similar tax subjects would be unconstitutional. When different classes of taxpayers are subjected to different systems of tax in connection with single type of tax, it cannot be aid that the stature manifests a difference in treatment. Nor can it be said that every little unevenness should be dubbed as a inequality to condemn the heavier imposition.
Willoughby in his Constitutional Law of the United States, second edition, observed thus at page 836 :
'....while the legislature may, within its discretion, determine freely what occupations, or classes of property, or persons are to be taxed, it may not select out from the general mass of property, or general citizen, body, particular pieces of property or particular individuals to bear the burden of the tax. When, therefore, a tax is laid upon certain classes of property or of persons, there must be some reasonable basis for the classification adopted. By this is meant, that there must be some substantial reason why the units, whether of property or of individuals, should be treated as distinct groups.'
The American Supreme Court has always been of the view that, though the guarantee of equal protection extends to taxing laws, the legislature would not be offending the fundamental right of a citizen by not taxing every person equally, so long as the persons under the same circumstances or property of the same character are taxed by the same standard (see, for example, Magoun v. Illinois Bank As has been stated in Great Atlantic Co. v. Grosjean
'The legislature is not required to make meticulous adjustment in an effort to avoid incidental hardships.'
The touchstone of constitutionality as regards the equality clause is stated thus in Colgate v. Harvey :
'Does the statute arbitrarily and without genuine reason impose a burden upon one group of taxpayers from which it exempts another group, both of them occupying substantially the same relation towards the subject-matter of the legislation.'
Cases on the subject of article 14 are quite a legion. There is along catena of decisions by the Supreme Court starting from Chiranjit Lal v. Union of India in which the scope and reach of article 14 have been, if we may say so with respect, elaborately considered. It is needless to refer to these decisions herein, as the guiding principles have been plainly indicated and sharply outlined. The legal position may be summed up as follows :
No law, including a tax law, can deny equal protection to all citizens.
A tax is not an assessment of benefits. 'Equal protection' does not prohibit the enactment of laws based on reasonable classification having regard to the object of the legislation or of the person whom it affects. The classification must rest on some grounds of difference having a fair and substantial relation to the object of the legislation. Narrow distinction and superficial disparities are not per se sufficient discriminations to attract the mischief of inequality. The rule of equality permits many inequalities. (vide Breedlove v. Suttles and Carmichael v. Southern Coal Co. A classification is not a legislative division or an irrational grouping but a categorisation germane to the object and purpose of the Act. There should be no taint of arbitrariness in the alleged classification. But a distinction in legislation is not arbitrary, if any state of facts that would sustain it can reasonably be conceived. If, on the face of the statute, discrimination is manifest and clear and there can be no justification on the ground of classification, the attack on the constitutionality must succeed. The aggrieved subject need not establish that the discrimination was intentional or was a result of hostile animus. Discrimination in the context only means difference in
treatment, and unjustified difference would be a difference whether it be by design or by accident, or whether it is caused wilfully or inadvertently. It is not the state of mind of the legislature but the piece of legislation and its operational effect that determines the constitutional validity. What satisfies equality has not been and probably never can be precisely defined. (Magoun v. Illinois Trust The power to make distinctions exists with full vigour in the field of taxation; there is no iron rule in the matter, Government being free to exercise a wide discretion in salivating the subjects of legislation. Inequality or hardship resulting from tax burden, provided the standard is uniform, is not a mischief of unequal treatment of similar subject, but something which is inherent in Government by law instead of Government by edict (vide Fox v. Standard Oil Company).
The learned Advocate-General, appearing for the department, cited a decision of the Judicial Committee in Colonial Sugar Refining Company Limited v. Irving and submitted that the degrees of incidence of taxation would not have bearing on the question of the constitutionality of the enactment. It seems to us that this citation is very apposite. We wish to refer to the following passage from the judgment at page 367 :
'The grant of such an exemption was therefore said to be a discrimination between the State within the meaning of the Constitution, and it was added that whatever might be said about the excise duties, to grant an exemption for previous payment of customs duties was arbitrary and indefensible. Their Lordships cannot accede to this argument.... The rule laid down by the Act is a general one, applicable to all the States alike, and the fact it operates unequally in the several arises not from anything done by Parliament, but from the inequality of the duties imposed by the States themselves.'
We may at this stage make mention of an argument of the learned Advocate-General, based upon a passage in the judgment of Rajagopala Ayyangar J. (as he then was) in Adhi Chettiar v. State of Madras that there must be deliberate hostile treatment or discrimination by the legislature to render the law obnoxious to article 14. The passage is at page 705 and its reads :
'...the essence of the freedom guaranteed by article 14 and evil which the article seeks to guard against in the avoidance of designed and intentional hostile treatment or discrimination on the part of the law making authorities or of those entrusted with administering them.... We have been unable to discover any decision of the American courts where a law has been declared unconstitutional violative of the Fourteenth Amendment, merely because of its partial operation where this was unintended or was due to fortuitous circumstances.'
This, in our opinion, is not to be understood as meaning that the vice of discrimination is cured by showing, if it can be shown at all, that the legislature was not actuated by any bias but merely nodded. The learned judge merely pointed out, as can be seen from his other observations at the same page, that the consequence resulting from the working of the Act, like evasions or escape through the meshes of the Act, cannot brand it with discrimination if there is none on the face of it. Patent discrimination manifest in the impugned Act does not lose its constitutional defect, on the assumption that it was not intended. The following observation of Mukerji J. in State of West Bengal v. Anwar Ali deals with this aspect of the matter :
'If it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law the legislature was actuated by a hostile or inimical intention against a particular person or class.'
We are, therefore, unable to agree with this contention of the learned Advocate-General.
The XIV Amendment of the american Constitution reads, so far as it is material in the present context, as follows :
'No State shall make or enforce any law which shall abridge the privileges or communities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of laws, nor deny any person within its jurisdiction the equal protection of the laws.'
Article 14 of the Indian Constitutions states :
'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Though the XIV Amendment of the American Constitution is a composite provision inhibiting the deprivation of life, liberty or property without due process of law and prohibiting denial of equal protection of laws, American cases dealing with the subject of equal protection of laws are of great value and assistance is discussing the constitutionality of enactments challenged in this country as being repugnant to article 14. We find that the following passages from some of the leading text books on the American Constitution give a clear picture and cogent analysis of the American law. Pritchett in his books on the American Constitution observes at page 615 as follows :
'...equal protection does not prohibit legislative classification, provided the classification is reasonably related to the public welfare and all within the class are treated equally... The decided cases are full of warnings against judicial interference with legislative classification. The difference between persons or things on which the classification is based need not be scientific or marked, so long as there are some practical distinctions. A classification must be clearly band actually arbitrary to be held invalid, and not merely possibly so. Every presumption as to facts which could conceivably justify the legislative classification will be assumed. The State may do what it deems an evil, and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would result if the rules laid down were made mathematically exact.'
Weaver in his Constitutional Law, at page 397, states :
'Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege..... A classification must be arbitrary, artificial or evasive and there must be a reasonable, natural and substantial distinction in the nature of the class or classes upon which the law operates. In respect to such distinction, a legislative body has a wide discretion and an Act will not be held invalid unless the classification is clearly unreasonable and arbitrary. That the was will work a hardship is not enough. Many laws have that effect and the greater part of all legislation is disscriminatory in the extent to which it operates, the manner in which it applies or the objects sought to be attained by it.... What classification is reasonable, natural or substantial rests in the discretion of the legislative body in the first instance and it is the province of the courts of adjudicate when it should be classed as arbitrary, artificial or evasive.'
Willis in his book on Constitutional Law observes as follows at page 587 :
'A State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, method, and even rates for taxation if it does so reasonably.
Now the question is whether the omission of the Mappilla Marumakkathayam tarwad, as an entity to be taxed, would amount to an undue preference to such tarwards resulting in discrimation against the Hindu undivided families such as to violate the equality clause of the Counstitution. Though, at the commencement of the argument, Mr. M. K. Nambiar submited that the Act discriminted Hindu undivided families as against Malabar tarwads in general including Nair towards and Nambudiri illoms, he practially confined his arguments, at the later stages of the case, only as regards the alleged discrimination of Hindu undivided families as against Mappilla tarwads. We have, therefore, tp examine the position of Mappilla tarwads as regards their right to property both before and after the Mappilla Marumakkathayam Act, 1939.
We may state in general that the Marumakkathayam law itself was based only upon ancient usage and custom. Sundara Aiyar, in his book on Malabar Law, observe that in Malabar more than anywhere else it is still an age of usage and not of written law. Marumakkathayam law prevails amongst a large section of the people on the West Coast of South India. This system of law is known as Aliyasanthana law in South Kanara. Literally, the meaning of the word 'Marumakkathayam' is inheritance through nephews and nieces. This system is followed by the Nair community and by other Non - Brahmin Hindus, Thiyas and to some extent by the Muslims of North Malabar. The word 'tarwad' signifies a joint family consisting of males and females, all descended in the female line from a common ancestress. Mayne in his text book of Hindu Law, at page 973, described the constitution of a tarwad in these terms :
'A tarwad is a family corporation, and every member of a tarwad has equal rights in the property by reason of his or her birth in the tarwad.'
(Kalliani Amma v. Govinda Menon (Mad. 648) and Kabakandi Koma v. Siva Sankaran : (1910)20MLJ134 : 'On the death of any member, his or her interest in the tarwad property devolves on the other members of the tarwad by survivorship.'
The customary law or the Marumakkathayam law prevalent in Malabar has been very materially altered by the enactment of the Madras legislature, and also by the regulations of Indian States, Travancore and Cochin, in their respective jurisdiction. The Madras Acts are, the Malabar Marriage Act (IV of 1896), the Malabar Wills Act (V of 1898), the Madras Marumakkathayam Act, 1932 (XXII of 1933), the Mappilla Marumakkathayam Act (XVII of 1939) and the Madaras Aliyasantana Act, 1949 (IX of 1949).
In Assan v. Pathumma I. L. R.  Mad. 494 Subramania Ayyar J. took the view that, even in the case of Mappillas of North Malabar, the Muhammadan law was their general law, the Marumakkathayam rules in regard to Mappillas who followed them being rules of later adoption. In support of this view, the learned judge referred to a passage in Mr. Logans Malabar Manual. Sundara Aiyar in his book on Malabar Law at page 231 states :
'The Mohamadans of North Malabar also mostly follow the Marumak-kathayam low of inheritance and adopt the rule of non - division. This was due to the fact that a large portion of the Sundara community follow in Marumakkathayam law embraced Mohamadanism en masse. Mr. Logan is not correct in his statement that the Mohamadans settled in North Malabar, changed the rule of inheritance previously prevalent among them and adopt the Marumakkathayam rule. This seems to be prima facie extremely improbable. On the other hand it is very natural and very probable that when a large section of a community adopts a new religion the converts should retain the rules of inheritance to which they were previously subject, and it is also extremely likely that the heads of the new religion should encourage conversion by making the change as easy and agreeable as possible to the new converts.'
The learned author observes that Marumakkathayam is the prevalent system of inheritance in most of the Mohamadan families north of Calicut, and that even in Calicut and further south, one occasionally finds the adoption of the Marumakkathayam rule, though the instances are rare. Mr. Sundara Aiyar discusses the question whether the separate acquisitions of a member of the Mappilla tarwad would descend by the Marumakkathayam rule or by Muslim law. In his opinion, the dominant system being Marumakkathayam (as regards the Mappillas of North Malabar and other who follow that system) the presumption should be that the Mappillas are governed by the rule of property of the Marumakkathayam law unless the country is established. Reference is made to the decision in Kunhimbi Umma v. Kandi Moithin I. L. R.  Mad. 77 in which a Division Bench of this court (Subramania Iyer and Bens on JJ.) observed that Assan v. Pathumma I. L. R. (1899) Mad. 494 should not be understood as laying down that in every case between Mohamadans in North Malabar, even when they were members of a Marumakkathayam tarwad, the devolution of self - acquired property was governed by Mohamadan low unless the contrary was shown, and that the presumption would often be in favour of the Marumakkathayam rule of devolution. In support of the view that Muslim families, who were governed by the Marumakkathayam law as regard the tarwad property, should be presumed also to be governed by that law even as regards acquisition to their separate property, the following
observation of the Judicial Committee in Murtaza Husain Khan v. Muhammad Yasin Khan I. L. R.  All. 552 is quoted by Sundara Aiyar :
'The Mohamadan Law makes no distinction between ancestral and self acquired property and recognises no principle of difference in the matter of lineal and collateral succession as is the case under the Mitakshara which divides inheritance into unobstructed heritage. All classes of property, whether ancestral of self-acquired, follow one rule of devolution. If a custom governs the succession to the ancestral estate the presumption is that it attaches also the personal acquisitions of the last owner left by him on his death; and it is for the person who asserts that those properties follow a line of devolution different from that of the taluka to establish it.'
What is to happen if a Muslim husband comes from a family governed by ordinary Mohamadan law and the wife belongs to a family governed by the Marumakkathayam system or vice versa Then the property of the father would descent to his children and others according to the Mohamadan Law. It is therefore clear even from a cursory examination of these Mappilla tarwads bin North Malabar governed by the Marumakkathyam law that there was no one system of devolution of property or inheritance which would govern them. Sometimes it was the Muslim law and sometimes it was the Marumakkathayam law. That depended upon the question whether the adult male of a tarwad was himself a Marumakkathayee or a follower of Muslim law. It must be noted that as regard marriage and divorce, even the Marumakkathayam Mappilla tarwad was governed only by the rule of Mohamadan law. Sundara Aiyar observes at page 236 :
'The recognition of the Marumakkathayam rule of inheritance and at the same time of the Mohamadan rule as to marriage has led to the growth among Mappillas of certain customs. For instance in Bappan v. Mukki I. L. R.  Mad. 259 it was found that among the Mappillas of North Malabar there existed a custom according to which the junior members of Mappilla tarwads were entitled to maintenance from the tarwad when living in the house of their consorts and also to a higher rate of maintenance when living with their consorts than when living single. There is also the practice for the relations of the wife to make what is called a stridhana gift to the husband to enable him to maintain her.'
In short, before the advent of the Mappilla, Marumakkathayam Act, even the so called Mappilla tarwads in North Malabar in a few portions of South Malabar had no uniform or single system of succession to property, and were governed practically be usage and custom. there cannot be any comparison between a Hindu undivided family and a Mappilla tarwad, and, in our opinion,. it would be very anomalous to place them together on the same par, merely because t can be said that both a Hindu undivided family and a tarwad can be conveniently described as 'family corporations.'
What is the similarity between a Mappilla tarwad and Hindu undivided family is really the crux of the question before us. If the alleged similarity is only apparent and nominal and does not extent to the substance of the right enjoyed by these two bodies, it cannot be said that they are similar institutions normally entitled to be treated alike by the legislature. Mr. M. K. Nambiar was at pains to point our that both are 'corporations' and that they have many features in common. He referred to the following observation of Srinivasa Ayyanger J. in Chakkra Kannan v. Kunhi Pokker I. L. R.  Mad. 317 :
'In India it is not uncommon for groups of person, though not incorporated to hold properties as if they were corporate entities. .. . . . . . instances of such groups in Southern India are the joint Hindu family governed by the Mitakshara Law, the Nambudiri I11om governed by the Marumakkathayam law, the Nair tarwad governed by Marumakkathayam law, and the Aliyasantana family of South Canara. The Mappillas of North Malabar generally follow the Marumakkathayam system. .... The incidents of such group holding are now well settled. In the case of Malabar tarwads such incidents include the impartibility of the property, the right by birth of person born in the tarwad, and the management of the properties by the senior male member of the tarwad who is styled the karnavan...... . . . . . .. The constitution of a joint Hindufamily governed by the Mitakshara Law furnishes a very close parallel.'
In Moithiyan v. Mammali : (1928)55MLJ208 , Chakkra Kannans case 1 was followed. Venkatasubba Rao J. observed :
'... the Marumakkathayam law recognises a tarwad as a unit and a tavazhi being a sub-division of a tarwad, the courts have also recognised it as a legal entity.'
The nature of a Hindu joint family was considered by the Supreme Court in Bhagwan Dayal v. Reoti Devi : 3SCR440 . His Lordship Subba Rao J. observed at page 304 as follows :
'The legal position may be stated thus. Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognises a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law.'
The expression 'corporate body', with reference to a Hindu joint family, was used by Bhashyam Ayyangar J. in Sudarsanam Maistri v. Narasimhulu
Maistry I. L. R. 1901] Mad. 149, where the learned judge observed that the Mitakshara doctrine of join family was founded upon the existence of an undivided family as a corporate body.
It is on this data that a Hindu joint family and a Malabar tarwad are corporate quasi-corporate bodies that Mr. Nambiar mainly rests his arguments that they should be similarly treated. A Hindu joint family is certainly a creature of Hindu law, and it is well settled that it cannot be constituted by agreement between parties. A, B, C and D cannot combine and enter into an agreement that they should hold certain properties with community of rights, just like a Hindu Mitakshara family. It has not been suggested that the joint family as such is a distinct entity or a legal person like a company or a municipal corporation, or other corporate bodies created by statutes. If the families were to be treated a s something apart from the members of the family. There is a unity of ownership and possession as regards the family properties, and each member has got an undefined right or interest in the properties. That interest cannot be ascertained unless and until there is a division in status or by metes and bounds. But the joint family manager is the accredited representative of the family, and is clothed with certain rights, in the matter of administration and enjoyment of the properties. The status of the family can be disrupted by any member seeking to get his share. Indeed, even before there can be a division by metes and bounds, a coparcener can get himself divided by unequivocal or unambiguous indication of intention to separate himself from the family and to enjoy his share in severalty.'Once the decision has been unequivocally expressed, and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly is entitled, is unimpeachable; neither the co - share can question it, nor can the court examine his conscience to find out whether his reasons for separation are well - founded or sufficient. '(Maynes Hindu Law, IIth edition, page 550). A minor coparcener can get himself divided from the family through the medium of his natural guardian or the court guardian provided he is able to convince the court that partition would be in his welfare and interest. It is really unnecessary to dwell longer on the character and nature of a Hindu undivided family, as in fact, there is no dispute now before us, as regards the true nature of such families. Comparing the Mappilla Marumakkathayam tarwad with the Hindu undivided family, it seems to us that the word 'corporation' is sometimes used to describe these tarwads with as much appropriateness as that word has been used as regard the Hindu undivided families. It is only a convenient description of grouping all persons. Mappilla Marumakkathayam
tarwad is, of course, not an institution or corporate body, having a separate legal existence or having the attribute of a 'legal person', distinct from the members of the tarwad. We have already pointed out that these Mappilla tarwads occupied the same position as the Nair tarwad in the Malabar area. We have to take it that, prior to the enactment of the Madras Marumakkathayam Act, I932, and the Mappilla Marumakkathayam Act, I939, the Mappila tarwad and the Nair tarwad stood more or less on the same position except as regard marriage, divorce, succession to separate property, etc. One distinction between a Hindu undivided family and the Malabar tarwad in general, Muslim or Hindu, is that these tarwads are governed by the Marumakkathayam law, that is, the matriarchal system, while the Hindu system of law are founded upon the agnatic family. In a Mitakshara joint family, the members claim their descent from a common ancestor, but the members of the family constituting a Marumakkathayam tarwad are descended from a common ancestress. The descent, according to the Marumakkathayam system, is in the female line. This is a basic structural difference between the two. It is true that a tarwad or a tavazhi cannot be created by act of parties, even as much as a Hindu undivided family cannot be so constituted. But a member of the tarwad could not claim partition and separate possession of his share of the tarwad property without the consent or the concurrence of all the members thereof. This had been laid down by a long course of judicial decisions, and Mayne in his Hindu Law states that it has been accepted as settled law and acted upon till the Marumakkathayam Act of I932. Certainly the members of the tarwad cannot be equated to a coparcener, who had an undoubted right to get a partition of his share, as and when he liked and even if the other other members would not consent. This again is a marked is a marked distinction between a Hindu undivided family and a tarwad. Dealing with a Mappilla tarwad, the Judicial Committee in Sulaiman v. Biyathumma  32 M. L. J. 137 ; 39 I. C. 243 (P. C.) pointed out that in a Mappilla tarwad, there could be no partition, unless all the members consented.
In a Hindu joint family partition, each class will take per stirpes as regards every other class, but the members of the class take per capita as regards each other. But that does not appear to have been the position governing the Malabar tarwads. At page 974 of Maynes Hindu Law, it is stated as follows :
'The mode of partition, whether it ought to be per stirpes or per capita, was the subject of conflicting judicial opinion. The accepted view is that partition should be per capita and this has been affirmed by section 40 of the Madras Marumakkathayam Act and also by section 36 of the Madras Aliyasantana Act. Owing to the absence of a right of compulsory partition, and the consequent increase in the number of members and the impossibility of living together under one roof, instances have often arisen where branches of a tarwads have lived separate for long, enjoying the properties of the tarwad separately.'
We find that on important matters like the right of division and the quantum of share, the tarwad Hindu or Muslim in Malabar differs substantially from the Hindu undivided family. In fact, the very system of Marumakkathayam having a female propositus or ancestress is wholly foreign to the conception of Hindu Mitakshara family, inasmuch as it is based on a common ancestor. The Hindu family emphasises the agnatic relationship to such a large extent as to postpone even close relations to sapindas and samanodhakas. Agnatic relation of the fourth or the fifth degree is given precedence in the matter of succession to a bandhu like paternal aunt or maternal uncle. Till the Hindu Inheritance Act, 1929, even sister, sisters son, sons daughter and a daughters daughter only ranked as bandhus and were postponed even to samanodhakas. We are unable to hold that there is anything much in common between a Hindu undivided family and a tarwad, to say that they constitute similar subjects entitled to equal protection under the equality clause of the Constitution.
It will be convenient, at this stage, to refer to the provisions of the Mappilla Marumakkathayam Act, 1939, enacted by the Madras legislature which really governed, the Mappilla Marumakkathayees, at the time when the Wealth-tax and the Expenditure-tax Acts were enacted. We shall give a brief summary of the salient provisions of the Act. Its preamble reads :
'Whereas it is expedient to define and amend in certain respects the law relating to family management. partition, and succession among the Mappillas following the Marumakkathayam law, it is hereby enacted....
The 'anandravan' is member of tarwad or tavazhi. The 'karnavan' is the oldest major female member in whom the right to management of its properties vests. 'Marumakkathayam' is defined as the system of inheritance in which descent is traced in the female line. 'Tarwad' means a joint family which includes all its members with communication property governed by the Marumakkathayam law.'Tavazhi' means branch of a ttarwad consisting of a female, her children and all her in the female line. The karnavan is obliged to maintain a correct inventory of all the movable and immovable properties going to the tarwad, and has also to keep a true and correct accounts of income and expenditure of the tarwad. The senior anandrawan is entry to inspect, at the tarwad house in the month of Vrischikam of the following year the inventory and the accounts of the previous year. He can also take copies of or extracts from the same. If the karnavan would not afford facilities for inspection, the anandravan can move the court and obtain appropriate with the income and the circumstances of the tarwad. The surplus income of the tarwad has to be invested by the Karnavan by purchase of immovable property for the tarwad or by other investments, to the best advantage or for benefit. The anandravan may institute a suit in a civil court, for the removal of the karnavan for any malfeasance, misfeasance, breach of trust or neglect of duty, misappropriation or improper dealing with the income or the properties of the tarwad. The karnavan can also be removed for mental soundness, physical infirmity or for other reasons set out in section II of the Act. Any individual member of a tarwad may claim to take his or her share of the properties of the tarwad. A minor member of the tarwad can also obtain a partition acting through his mother or, in the absence of the mother, by his or her guardian under the Islamic law. A tarwad desire it, unless two-thirds of the members of the tarwad desire to the contrary. In case of a division, the individual member or the members of the tavazhi, as the case may be, shall be entitled to such share or shares of the tarwad properties as would fall to such member or the members, if a division per capita were made among all the members of the tarwad then existing (section 17). Successions to the property obtained by an individual member on partition shall be governed by the Islamic law of inheritance. There is also a provision for registration of the tarwad as impartible. If within a year from the passing of the Act, not less than two-thirds of the rict, he shall register the tarwad present a petition to the collector of the District, he shall register the tarwad as impartible. On such registration, the tarwad estate would no longer be open to partition by metes and bounds at the instance of any member. If at any time after the registration of tarwad as impartible, not less than two-thirds of the members present a petition to the collector and desire cancellation of registration of tarwad as impartible, not less han two-thirds of the members present a petition to the collector and desire cancellation of registration, he shall cancel such registration. the act saves the provisions of the Mappilla Successions Act, 1918, the Mappilla Wills Act, 1928, and also any law or custom or usage governing the Mappillas, After the advent of this Act, the members of a Mappilla tarwad are undoubtedly governed only by the provisions of the Act, except as regards the matters saved under section 27 of the Act. A mere look at the provisions of the Act would be sufficient to distinguish a Mappilla Marumakkathayam tarwad from a Hindu Mitakshara undivided family, The only similarity. as far as we are able to see, is that the tarwad is described as a joint family and a Hindu Mitakshara family is The also called a joint family. The provision for removal of the karnavan and the provision compelling a karnavan to maintain an inventory of the properties and to keep a true account of the income and expenditure of the tarwad are certainly peculiar and they have no parallel. There are no doubt provisions of a similar nature in the Madras Marumakkathayam Act, 1932, which governs a Nair tarwad. Any coparcener of a Hindu joint family dissatisfied with the manager of the family can only insist upon a partition of the family properties and put an end to the joint family status. That is the only mode by which a fraudulent joint family and substitution of another in his place is unknown in the Mitakshara law. There is no duty on the part of a joint family manager to maintain accounts for the is not an agent. His position is analogous to that of a trustee, but this does not involve him in all the duties incumbent on the trustee. Provided that the family funds are used for family purposes, he is not accountable for past transaction. In regard to the disposal of the family income, the manager has a discretion which cannot be called in question, in the absence of fraud or misappropriation. Impartibility, except as regards impartible estates governed by an Act, is not recognised under the Hindu law. To a limited extent, this has been recognised by the Act governing Mappilla tarwads.
In our opinion, there is a vast difference between a Mappilla tarwad and a Hindu undivided family, and it would be a misnomer to equate the two as occupying the same position as a legal entity. We have, therefore, reached the conclusion, after giving our best attention to the matter, that the Hindu undivided family and a Mappilla tarwad are not similar subjects which are entitled to equal treatment, in the matter of enactment of laws by parliament.
The next question is whether the wealth of a Mappilla tarwad is altogether outside the ambit of the wealth-tax Act, or the expenditure of a Mappilla tarwad is beyond the scope of the Expenditure-tax Act. A karnavan of a Mappilla tarwad, no doubt holds the assets of the tarwad in a representative capacity, holding it not merely for himself but for the other member of the tarwad as well. But we do not envisage any legal disability on the part of the wealth-tax authorities or the authorities under the Expenditure-tax Act to deal with the Karnavan as an individual, for the purpose of assessment to tax. A karnavan is certainly an individual, and the properties sought to be assessed to tax are in his hands. If parliament did not recognise a Mappilla tarwad as a separate legal entity to be taxed like a Hindu undivided family, that would not lead to the inference that the subject-matter of the taxation in the hands of the Karnavan of the tarwad was not intended to be taxed. On a plain reading of the charging provisions of the enactments, we are opinion that a Karnavan, whatever may be the capacity in which he or she owns or extends, is certainly an 'individual' within the meaning of the said expressions under the two relevant Acts.
The only thing that remains is to refer to the decision of the Kerala High Court in C. K. Mammad Keyi v. Wealth-tax Officer in which the view has been taken that the Wealth-tax Act, 1957, denies equal protection of laws to Hindu undivided families. The Act was challenged mainly on two grounds. It was contended that Parliament was not competent under entry 86 of the Union List in the Seventh Schedule of the Constitution to impose a tax called the wealth-tax on the capital value of the assets of a Hindu undivided family or a Mappilla Marumakkathaya tarwad to the extent that they are or may be deemed to be made up of the agricultural income. It was next contended that, in any event, the Act fell within the mischief the equality clause of the Constitution. The Division Bench of the Kerala covered by entry 86 of the Union List of the Seventh Schedule to the constitutions and that there was really no conflict between the jurisdiction of Parliament under entry a law levying a tax on lands and buildings. The learned judges observed that, at any rate, entry 86 of the Union List confers a special legislative power which overrides the general power under entry 49 of the State List. The competency of Parliament to enact a tax measures was, therefore, upheld. The Act was, however, condemned as being unconstitutional violating the equal protection clause. Velu Pillai J., who delivered the judgment of the Bench, observed thus at page 295 :
'The term individual as employed in section 3 of the Act in juxtaposition with Hindu undivided families, and the other provisions in the Act, which differentiate between these two units of assessment, leave no room for doubt, that whatever be its connotation in entry 86, the term individual in the Act cannot comprehend a Hindu undivided family; if so, it cannot comprehend a Mappilla Marumakkathayam tarwad either'.
With great respect, we disagree with this view of the learned judge. we are unable to follow why the term 'individual' should receive a narrow or restricted interpretation while construing the provisions of the Wealth-tax Act, especially when there is nothing in the context of the charging section to indicate that the term should not receive its ordinary meaning. The expression 'Hindu undivided family' which follows the word 'individual' is not to be read as importing a restriction upon the term 'individual'. The charging section has attempted a classification of the entity to be taxed, and for good and proper reasons, distinguished a Hindu undivided family from an individual. We have already expressed our view that it would be possible to bring the karnavan of a tarwad within the scope and meaning of the expression 'individual' under the Acts. After discussing the question of the constitutionality of the charging section, velu, pillai J. has set out his conclusion thus :
'We, therefore, come to the conclusion, that Hindu undivided families of wealth have been singled out by the Act from other similar joint families in the country and that the state has thereby denied equal protection of the law to the former. The provisions in the Act relating to Hindu Families are severable and to that extent the Act has to be struck down'.
Earlier in the judgment, the learned judge has, however, referred to the argument of sri. K. V. Suryanarayana Iyer, learned counsel who appeared for the Wealth-tax Officer, in these words :
'Sri K. V. Suryanarayana Iyer has been able only to point out that in certain respects the law governing the members of a Mappilla Marumakathayam tarwad does not correspond in all respect to the members of a Hindu Family, but in our opinion, he has not succeeded in establishing any basis whatever for distinguishing for the purpose of the Act, wealthy undivided families of Hindus from similar families of non-Hindus.'
The learned judge was not apparently inclined to take the view that the entities, Hindu undivided family and Mappilla tarwad, are dissimilar subjects. We do not find any further reference to this aspect of the matter in the course of his judgment. The whole judgment rests upon the assumption that a tarwad and a Hindu undivided family are like subjects, and that the legislature should not discriminate the one as against the other. with great respect to the learned judges, we are unable to agree with that view.
The more we examine the position, and compare and contrast a Hindu undivided family with a Mappilla Marumakkathayam tarwad, the more we are convinced that the resemblance between the two is so remote that they cannot be reckoned or ranked as 'equals'. The essence of similarity between two persons or bodies is that they should enjoy substantially the same rights and be under the same obligations. One need not be the replica of the other, but they must have something more in common than the nomenclature. Even a few common features would not be enough : if the differences far outweigh the things in common, the ground for 'being alike' does not exist. If they are not equals the one cannot complain that the other enjoys certain privileges or concessions. It is no inhibition of the constitution to treat 'unequals' with inequality. Indeed the constitutional mandate is not to achieve equality where there is none, but is only to prevent the legislature from favouring one section of the equals and singling out of the other section to be the target of attack. Discrimination can come in, only when similar subjects are not treated alike. Such discrimination can escape the inhibition of the equality clause under the umbrella of permissible classification. If different entities are not accorded the same treatment by law, the charge of discrimination fails at the outset, and there is no need to justify it, on the ground of classification.
In our opinion, the charging sections of the wealth-tax Act and the Expenditure-tax Act do not fall within the mischief of the quality clause of the constitution. In the result, these writ petitions fail and are dismissed. The rule nisi issued in each of the petitions fail and are discharged. The petitioner will pay the costs of the respondent in each case. Counsels fee Rs. 250.
Writ petitioners dismissed.