NADIAMMAI ACHI Vs. MARIAPPA THEVAR

JUDGEMENT

(1.) THIS is an appeal against the order of the Court of the District Judge of West Tanjore scaling down the decree under Section 19 of Madras Act IV [4] of 1938. For appreciating the facts and the contentious of the parties the following genealogy may usefully be referred to.

(2.) THE first contention of the learned advocate is that Section 5 applies whether the Hindu family is joint or divided in status. He argued that the Legislature intentionally used the words 'undivided Hindu family' in contradistinction to the well -known concept 'the joint Hindu family' under the Hindu law. He re -inforced his argument by referring us to Section 25A, Income -tax Act. This argument not only ignores the principle underlying Section 5 but also the meaning of the express words used therein. Under Hindu law, a Hindu family is either undivided or divided and a division may be by metes and bounds or in status. To describe a divided family either in status or by metes and bounds as an undivided Hindu family is a contradiction in terms. Further under the Act this disqualification is imposed upon a member of an undivided Hindu family as in law it is treated as one entity and a member thereof so long as he continues to be a member of the family has no separate or independent rights de hors the family towards third parties. This conception of Hindu law is recognised by Section 3 (i) of the Act where a person is defined as including an undivided Hindu family. A decision of a Bench of this Court in Venkatakutumba Rao v. Veerabhadrudu : (1943)1MLJ211 , supports this construction of the section. In that case though a debtor had become divided from his uncle as the result of a partition suit decreed on 30 -3 -1936, the uncle was assessed to income -tax in ignorance of such division as Manager of a joint Hindu family for 1936 -37. The learned Judges held :

(3.) IT is argued that Section 25 -A contemplates a division by metes and bounds and until it is done and proved to the satisfaction of the Income -tax Officer the undivided family is liable to be assessed under the Act; and, therefore, as Section 5 refers to assessment under the Income -tax Act the words 'undivided family' used in Section 5 must be understood in the same sense as they are used in Section 25 -A, Income -tax Act. This argument offends against every rule of construction. We cannot construe the words in Section 5, Madras Agriculturists' Relief Act, with reference to the provisions of the Income -tax Act. The foundation for the application of Section 5 is that there should have been an undivided Hindu family and the fact that a divided family is assessed by a fiction as an undivided Hindu family under Section 25 -A of the Act cannot affect the real status of the family. We, therefore, hold that Section 5 has no application to the case of Hindu families divided in status.