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 of 1938. For appreciating the facts and the contentions of the parties the following genealogy may usefully be referred to: The branches of Ramalinga and Sabapathi had become divided in 1926. But in the partition certain immoveables and cash outstandings were left undivided and they were in the management of Ramalinga. Ramalinga and his sons became divided between 1934 and 1936. In spite of the division Ramalinga continued to be in management of the assets not divided. During the lifetime of Ramalinga he was assessed to income-tax in regard to the income of the property left undivided and after his death his son Kayarohana was also assessed in respect of the same income. After Kayarohana s" death Subramania was assessed in the same manner. Subse-quently in O.S. No. 3 of 1938, a partition suit filed in the District Court of West Tanjore, the undivided assets also were divided between the members of the family. The appellants obtained a decree in O.S. No. 5 of 1934, against Mariappa Thevar and others. Mariappa filed LA. No. 299 of 1944 for scaling down the decree under Section 19. of Madras Act IV of 1938. The decree-holders relied upon Section 5 of Act IV of 1938, and contended that as the family was assessed to income-tax the petitioner being a member of the family could not get the decree scaled down. The learned Judge held that at the time when Kayarohana was assessed to income-tax as representing the undivided Hindu family the family was really disrupted and therefore Section 5 had no application. In that view he scaled down the decree as prayed for. The decree-holders preferred the above appeal. The learned Counsel for the appellants argued that Section 5 of the Madras Agriculturists Relief Act, 1938, directly applies to the facts of this case. Section 5 reads as follows: Where an undivided Hindu family other than a Marumakatayam or aliyasantana tarwad or tavazhi is assessed to the taxes specified in provisos (A), (B) and (C) to Section 3(ii), or falls within the category of persons specified in proviso (D) to the same section, no person who was a member of the family on the 1 October, 1937, shall be deemed to be an agriculturist for the purposes of this Act except Section 13. 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 contra-distinction to the well-known concept " the joint Hindu family" under the Hindu Law. He reinforced his argument by referring us to Section 25-A of the Indian 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 2(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/s. Veerabhadrudu 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 March, 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, That under Madras Act IV of 1938, the family so assessed cannot be deemed to be a person after 30 March, 1936, and the divided member is not disentitled to the benefits of Madras Act IV of 1938. It is suggested that there might have been a division by metes and bounds in that case, but we have called for the records in that appeal and satisfied ourselves that the question arose before there was any division by metes and bounds. Another decision of Wadsworth, J., in Rajeswara Rao Garu V/s. Venkata Rqyanim Garu . bears out the said construction. The question that arose in that case was Whether an undivided Hindu family in Section 3(i) of Madras Act IV of 1938 covers those joint families which have reunited as well as those joint families which never separated. The Courts below held that the words "undivided Hindu family" did not attract the reunited family as the word used is undivided but not joint. The learned Judge rejected that distinction and relying upon the provisions of Section 19 of the Act held that the word "undivided" was used in the sense of joint and therefore the reunited family also was covered by Section 5. Mr. Justice Wadsworth stated the principles at page 224 as follows: The real question therefore is, what was the sense in which the Legislature used the words undivided Hindu family " in the definition of a person in Section 3 (i) of the Act. Clearly the reason for treating an undivided family as a person was not the historical origin of the family nor the future devolution of property on the death of the members of the family. The real reason for treating the family as a unit was the way in which its property is held and its obligations are incurred jointly. At page 225 the learned Judge proceeds to observe: It seems to me that what the Legislature had in mind in treating an undivided Hindu family as a person, was the present undivided status of that family and not the historical origin of that status. Applying these principles we agree with the learned Judge that under Section 5 of the Act the words " undivided Hindu family " are synonymous with the words "joint family ". The contention based upon Section 25-A of the Indian Income-tax Act does not help the appellants. Section 25-A of the Income-tax Act, XI of 1922, reads as follows: Where, at the time of making an assessment under Section 23, it is claimed by or on behalf of any member of, a Hindu family hitherto (assessed as) undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry there into as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect. 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 of the Income-tax Act. This argument offends against every rule of construction. We cannot construe the words in Section 5 of the 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.

(2.) It is next contended that in regard to some immoveable properties and out-standings the family continued to be a joint Hindu family. Partition may be either total or partial. It may be open to the members of a joint family to sever an interest in respect of a part of the joint estate while retaining their status as joint family and holding the rest as the property of an undivided Hindu family. Coparcenary may cease as to some of the properties and continue as to the rest. It is settled law that when there has been a partition the presumption is that it is a complete one as to the parties and properties. We are not satisfied on the facts before us that when the branches of Ramalinga and Sabapathi became divided in 1926 they intended to retain their joint family status in regard to some of the immoveables and cash outstandings. It is more likely that there was a severance in status in regard to the entire family property and some of the items were continued to be held jointly for convenience. The fact that they had a separate mess and lived separately and that in 1934 there was a partition inter se between Ramalinga and his three sons also indicates the same intention. In our view the appellants on whom the burden lies did not put before us sufficient material to rebut the initial presumption of law. In any view Exhibit P-1 the notice, dated 10 May, 1926, issued on behalf of T. S. Kasinatha Thevar son of Sabapathi Thevar to T.K. Ramalingam Pillai shows a clear and unambiguous declaration of the intention to divide in regard to the entire properties. It is stated in the letter. ...Therefore you are bound to divide and deliver at once a one-third share at least in the family immoveable and moveable properties and outstandings which have not been divided according to the talk between you both and to pay the income derivable from the aforesaid one-third share.

(3.) We therefore hold on the evidence that there was a division in status among the members of the family in regard to the entire family estate.