The Judgment of the Court was delivered by

Srinivasan, J.:— This petition seeking a writ of certiorari arises under the following circumstances. The petitioner is the Karnavan and manager of an impartible tarwad governed by the Moplah Marumakatayam Act (Madras Act XVII of 1939). In January 1956, the Income-tax Officer, Tellicherry, called upon the petitioner to furnish him with particulars of the estate of the late Chowakkaran Keloth Kunhamina. The petitioner informed the Income-tax Officer that the late Kunhamina, who was a member of the tarwad, had no assets whatsoever and had no estate belonging to her which devolved on any other person. In this letter, the petitioner stated that the tarwad had been registered under Section 21 of the Madras Act XVII of 1939, with the result that the last Kunhimina as well as other members of the tarwad had no right to claim a share in the tarwad properties. Thereupon, the Assistant Controller of Estate Duty called upon the petitioner to produce the record relating to the registration of the tarwad as impartible. This was apparently done. Thereafter, the Assistant Controller, seeking to examine the contention that on the death of a member of a tarwad registered as impartible, as stated above, no share in the tarwad properties passed to any other member, posted the case for hearing and directed the petitioner to appear before him. Owing to various reasons an enquiry was not conducted, and finally, on 4-1-1957, the Assistant Controller wrote to the petitioner to this effect:

“I am not prepared to accept your contention that in the circumstances stated by you the deceased was not entitled to a share in the tarwad properties at the time of her death. Even though the tarwad was registered as impartible estate under the provisions of the Moplah, Marumakatayam Act, it cannot be said that the members of the tarwad were deprived of their share in the tarwad properties for ever……. The share of the deceased in the tarwad properties will therefore be liable to estate duty as interest erasing on death under Section 7 of the Estate Duty Act. Herewith the two forms of E.D 1 are enclosed which may be duly filled in and returned to this office on or before 20-1-1957……”

E.D 1 form referred to purports to be a form of declaration to be subscribed to by the person making the return admitting the fact that the deceased had certain properties which passed on death and furnishing particulars thereof.

2. Upon this direction of the Assistant Controller, the petitioner has come to this court seeking the issue of a writ of certiorari claiming that the decision of the Assistant Controller, that the share of the deceased in the tarwad properties will be liable to estate duty under Sec. 7 of the Act, is totally without jurisdiction, illegal and unjustifiable and that the reasons on which the Assistant Controller came to this conclusion are patent errors of law on the face of the order.

3. In the counter affidavit filed by the department, after setting out the reasons which led the Assistant Controller to come to the conclusion that is now challenged, it was stated that the petition is premature, as, except for be issue of the notice calling for a return, no proceedings have been taken, nor the assessment completed on the petitioner. When the petition First came up for hearing, the petitioner urged that the Assistant Controller had decided, and decided the issue ex parte, that the deceased had a share in the tarwad properties, and that share had passed on her death to the surviving members of the tarwad. The contention of the department was that nothing had really been “decided” despite the apparent tenor of the letter dated 4-1-1957. A memorandum was filed into court offering to withdraw the letter dated 4-1-1957; and the department claimed that it should be left free to decide Whether estate duty was payable either on the basis of Sec. 5 or on the basis of Section 7 of the Estate Duty Act. The learned counsel for the petitioner contended that no estate duty was payable under the terms of the Act, and that though it was a writ of certiorari that had been asked for, the main question at issue should be decided by the court, and that it the petitioner's contention was upheld, a writ of prohibition should issue to restrain the respondent from taking any further proceedings under the Act.

4. The contention of the petitioner broadly stated is that the incident upon which duty becomes chargeable under the Act, viz., the passing of property on the death of a person dying after the commencement of this Act, has not happened in this case. It is claimed that Kunhamina was only a member of a Moplah tarwad which, besides being impartible under the Marumakatayam law governing such tarwads, has been specifically made impartible by an order of the Collector made under Section 20(1) of the Moplah Marumakatayam Act (Madras Act XVII of 1939). A member of a Moplah tarwad governed by the Marumakatayam law was at no time entitled to partition as a matter of right, and that position has been statutorily confirmed in certain proceedings taken by the members of the tarwad in this particular case under the above said Act. The claim proceeds that the late Kunhamina accordingly never possessed a share in the properties, either factual or notional, a share which could pass on her death to other persons. The next argument is that no member of a tarwad is competent to dispose of the tarwad properly. On these contentions the applicability of Sec. 5 or Section 6 of the Estate Duty Act is questioned. Coming to Sec. 7 which deals with interests ceasing on death, the contention of the learned counsel for the petitioner is that a close examination of this provision would show that it is applicable only to Hindu families and that a Mohammadan family governed by the Marumakatayam law is not brought within the scope of this section. Having briefly stated the contentions, we shall next proceed to examine them in some detail.

5. It is desirable at outset to ascertain more precisely what the incidents of a family governed by the Marumakatayam law are. It is well known that there were both Hindu and Mohammadan families on the West coast governed by this law. In the treatise on Malabar and Aliyasantana law by Sundaram Iyer, the constitution of and the incidents relating to the joint family governed by the Marumakatayam law have been set out as below. The joint family in Marumakatayam Nair tarwad consists of a mother and her male and female children and the children of those female children and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of lie males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the Kamavan. The individual members are not entitled to enforce a partition, but a partition may be effected by common consent.

6. The rights of the junior members are stated to be: (1) if male, to succeed to management in their turn; (2) to be maintained at the family house; (3) to object to an improper alienation or administration of the family property; (4) to see that the property is duly conserved; (5) to bar adoption; and (6) to get a share at any partition that may take place. These are what may be called the effective rights. Otherwise every one is a proprietor and has equal rights. It is accordingly claimed that a tarwad governed by the Marumakatayam law was generally speaking impartible in the sense that unless all the members agreed thereto, a partition of the tarwad properties could not take place. Madras Act XVII of 1939 for the first time gave a right to any individual member of a Moplah tarwad to claim his or her share of the properties of the tarwad and to become separate from the tarwad. The need for the common consent of all members of the tarwad was thus statutorily done away with, and for the first time a right was created whereby an individual member of a tarwad could claim partition and obtain his or her share of the properties therein.

7. This act also codified the other features relating to the Moplah tarwad, its management by the Karnavan the rights, and duties of the Karnavan, the prohibition against alienations and the like. The right of a junior member to sue the Kamavan for malfeasance, neglect of duty, misappropriation and even for his removal was also recognised by S. 11 of the Act. Chapter III of the Act provided for partition of tarwad property, and as has been stated earlier, every individual member of the tarwad was given such a right. In order, however, to maintain the family as an impartible unit, where the members desired to have it so, S. 20 provided that if within a year after the passing of the Act not less than two-thirds of the major members of the tarwad presented a petition to the Collector to have the tarwad registered as impartible, it could be so registered, and on such registration, the provisions of Chapter III relating to the partition of the tarwad properties became inapplicable to such a registered tarwad. In a similar manner, the cancellation of registration with the consequent restoration of the right to partition on demand by any individual member of the tarwad was provided for by S. 21 of the Act. In effect, Act XVII of 1939 besides placing on a statutory footing the customary law governing the Moplah tarwads in general, created a right in every individual member to partition, a right which did not exist previously.

8. The contention of the petitioner is based upon these incidents of a Moplah family. The learned counsel argues that, where no member of the family is entitled to a partition, he cannot be deemed to possess any interest in any specified portion of the family property which could pass on his death to any other person or persons. On the other hand, the learned Advocate-General, appearing for the department, presses for the other extreme view, viz., that both as recognised by the customary law and as confirmed by Act XVII of 1939, a tarwad means nothing more than a joint family which includes all its members with a community of property governed by the Marumakattayam law. It is argued that every member of a tarwad is equally a proprietor and has equal rights, and since all of them possess community of property in the entirety of properties owned by the tarwad each member may be said to own the whole of the property of the tarwad, and that it should thereupon follow that the property as a whole must be held to pass on the death of any individual member of the tarwad. It seems to us that such a claim is not sustainable.

9. Notwithstanding the fact that every female member of a tarwad similarly situate possesses equal rights, it is obvious that no one member can be said to possess the property of the tarwad. Except for the right of management which vests only in he kamavan, the right of every other member of the tarwad consists of a right to be maintained consistent with the income and the circumstances of the tarwad provision for customary or legitimate expenses such as education, marriage or death of the members of the tarwad, the right to interdict any alienation of immovable property by the Kamavan which may be against the interests of the tarwad and sue for his removal. The right to partition is not a normal right, available to a member of an impartible tarwad, but is contingent upon a majority of the members of the tarwad agreeing to have such a partition. Even if this bundle of rights of a junior member is “the property” which he possesses in the sense of an interest in the property of the tarwad, obviously, such rights as these are individual and personal to a member of the tarwad, and it is not his bundle of rights which could pass on the death of that member. It seems to us, therefore, that the liability to estate duty in a case of this kind does not fall to be considered under Section 5 of the Estate Duty Act. Not only does the definition of “tarwad” in the Act indicate that all the members have community of property; but Section 13 of the Madras Act which provides for a partition refers to the properties as those over which the “tarwad” has power of disposal. That his is the real position has been recognised in numerous decisions.

10. In Chakkara Kannan v. Kunhi Pokker, ILR 39 Mad 317 : (AIR 1916 Mad 391), Srinivasa Ayyangar, J. observed:

“In India it is not uncommon for groups of persons though not incorporated to hold properties as if they were corporate entities. Castes and sub-castes hold property as such, so also village communities. But the more common and familiar instances of such groups in Southern India are the joint Hindu family governed by the Mitalcshara law, the Nambudiri illom governed by the Makkatayam law, the Nayar tarwad governed by the Marumakatayam law, and the Aliyasantana family of South Canara, the Mappillas of North Malabar generally follow the Marumakatayam system and the parties to this suit are governed by that law. 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 Kamavan.”

Later he observes:

“These groups cannot of course be created by agreement of parties. The tavazhis or the subordinate groups constituting the tarwads are, I think, capable of holding properties as corporate units with the incidents of tarwad property. At the same time retaining their joint interests in the properties of the main tarwad, just as branches and sub-branches in a Mitafoliara joint Hindu family are capable of molding properties with the incidents of joint Hindu family property.”

In Pathumma v. Raman Nambiar, ILR 44 Mad 891 : (AIR 1921 Mad 224) (FB) the question arose whether by reason of the conversion of a Hindu member of a Malabar tarwad, the right to partition became available. It was held that notwithstanding the apostasy of the ???, a right to partition of tarwad property would not arise. Kumaraswami Sastri, J. noticed:

“It is clear that a member of a tarwad has no right to claim partition, as tarwad property is indivisible, and no one member, nor even all but one, can enforce a division upon any who object”. In T.M. Subramanyan Tirumurupu v. T.E. Naraina Tirumurupu, 1938-1 Mad LJ 710, it was noticed;

“Under the Marumakatayam law, no member of a Malabar tarwad has got any definite share but the property of the tarwad is vested in all the members comprising the tarwad. The tarwad is impartible except with the consent of all the members or probably with the consent of the adult members of the family and by reason of this limitation, no individual member can alienate the property nor can his interest therein, be seized and sold in execution by a creditor for his personal debt. This incapacity is due to the fact of there being no right of compulsory partition and therefore no right to have the interest separated for separate enjoyment. Nevertheless, the interest is proprietary and a vested interest though joint…” These authorities, in addition to the provisions of the Marumakatayam Act referred to and the extract from the treatise of Sundaram Iyer, clearly establish that an individual member of an impartible tarwad has no doubt an interest in the property in the sense of his being entitled to certain benefits arising from the property. He has no share therein. Nor can his interest be equated to one of ownership over the whole of the tarwad property which can be said to pass on his death. Indeed, it is difficult to see how in such an incident there can be any passing at all. In Nevill v. Commrs of Inland Revenue, 1924 AC 385, the provisions of the United Kingdom Finance Act of 1894 were considered. This Act also deals with Estate Duty, and Haldane, L.C observed that “passes” may be taken as meaning “changing of hands.”

11. If the property is owned by the tarwad and this tarwad has the power of disposal over the property the death of a single member of the tarwad makes no change in the possession of the property by the tarwad considered as a community, and, therefore, it is obviously impossible to hold that the entire properties of the tarwad changes hands on the occasion of the death of each and every individual member of the tarwad. It has also been laid down in the decisions referred to earlier, that though not strictly analogous, the tarwad partakes of the nature of a corporate entity in its capacity for holding property. In Kalliani Amma v. Govinda Menon, ILR 35 Mad 648, it was observed:

“According to the Marumakatayam law, property is held by the members of a tarwad jointly without any right to compulsory partition and without any individual right of disposal so long as the tarwad continues to exist.”

It should follow, therefore, that the tarwad is a permanent institution which continues to hold the property as distinct from the members that compose it. There can thus be no changing of hands in relation to such property. It is obvious further from what we have said that what, the members of the tarward are entitled to is only a claim to certain benefits out of the property and not to any specific share in the property itself. We are thus driven to the conclusion that it is not a case which would come within the scope of Section 5 of the Estates Duty Act.

12. The learned Advocate General, who further claimed that even Section 6 of the Estate Duty Act would govern this case, did not amplify the argument. Sec. 6 provides:

“Property which the deceased was at the time of his death competent to dispose of shall Be deemed to pass on his death.”

It is hardly necessary to reiterate what we have endeavoured to set out fairly clearly above, viz., that no one member of a tarwad is capable of dealing with the property of the tarwad. That the members possess a community of property and that it is the tarwad as such which has the power of disposal Over the property should be fairly clear. The absence of a right to partition should also lead to the consequence that no member can have any right of disposal. Sec. 6 can, as far as we can see, have no application whatsoever. Whether or not this section would become applicable to a case where the tarwad is not impartible need not be gone into.

13. The department's case is that on the death of Kunhamina, her interest in the property ceased, an in such an event Sec. 7 of the Act provides for the levy of estate duty, on such interest ceasing on the death of the deceased, it being deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cessor of such interest. The first part of the section is in these terms:

“Sec. 7(1): Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death, of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues or arises by the cessor of such interest……”

Had this section stopped there, there would perhaps be very little scope for the argument that on the death of a person who forms a member of a family, of the nature we have earlier described, the cesser of the interest which the deceased person had in the property would by the very cesser thereof result in an enhancement or the enlargement of the benefits of the other members of the family in those properties and a benefit could therefore be held to accrue or arise by reason of the cesser of the interest of the deceased person. But the section proceeds “…… including, in particular, a coparcenary interests in the joint family property of a Hindu family governed by the Mitakshara, Marumakatayam or Aliyasantana law”.

14. According to the learned counsel for the petitioner, these are words of limitation and they indicate that it is only in the case of Hindu families governed by one of those laws that the section has been made specifically applicable. Support for this argument is sought to be derived from the succeeding sub-sections. Sub-sec. (2) of Sec. 7 provides that if a member of a Hindu coparcenary governed by the Mitakshara school of law dies, it is only in certain stated circumstances that sub-sec. (1) would apply. Sub-sec. (2) is important in the present context and it may be set out in full:

“If a member of any tarwad or tavazhi governed by the Marumakatayam rule of inheritance or a member of a kutumba or kavaru governed by the Aliasantliana rule of inheritance dies, then the provisions of sub-sec. (1) shall not apply With respect to the interest of the deceased in the property of the tarwad, tavazhi, kutumba or kavaru, as the case may be, unless the deceased had completed his eighteenth year.”

The earlier part of this sub-section appears to be in very general terms and would normally include a farwad, even a Moplah tarwad, governed by the Marumakatayam rule of inheritance. But the learned counsel for the petitioner points out that notwithstanding the apparently broad sweep of the earlier part of the section, the latter part of subjection refers to the provisions of sub-sec. (1) of Sec. 7, which according to him excludes a Mohammadan tarwad governed by the Marumakatayam law. Reference has also been made to Sec. 39 of the Act, which deals with the Valuation of interest in coparcenary property ceasing on death. Though the joint family ownership of tarwad properties may not strictly be styled as coparcenary interest, it is very closely analogous thereto. Sec. 39, sub-sec. (1) provides that in the case of the cesser of a coparcenary interest in any joint family property governed by the Mitakshara school of Hindu law, the value of the benefit accruing or arising from Such share shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death. This has obviously specific reference to a Mitakshara joint family. Sub-sec. (2) is however more general, and would appear to apply even to cases of Moplah tarwads. It reads:

“The value of the benefit accruing or arising from the cesser of an interest in the property of a tarwad or tavazhi governed by the Marumakatayam rule of inheritance or of a Kutumba or Kavaru governed by the Aliyasanthana rule of inheritance which ceases on the death of a member thereof shall be the principal value of the share in the property of the tarwad or tavazhi or, as the case may be, the kutumba or kavaru which would have been allotted to the deceased bad a partition taken place immediately before his death.”

It is however the petitioner's case that this provision cannot lead to the conclusion that a Moplah larwad comes within its scope. That according to him should still be determined on the basis of a proper interpretation of Sec. 7(1). As we have said, the attempt on the part of the learned counsel for the petitioner is to establish that the latter part of Sec. 7(1) which reads “including in particular, a coparcenary interest in the joint family property of a Hindu family……” is only intended to bring in a coparcenary interest in a joint Hindu family which would not otherwise have been brought within the scope of the earlier part of Sec. 7(1). In putting forward this argument, reference has been made to the scope of a corresponding provision of the English Act. Sec. 2 of the English Act is in these terms:

“See. 2(1): Property passing on the death of the deceased shall be deemed to include the property following, that is to say:—(a) property of which the deceased was at the time of his death competent to dispose; (b) property in which the deceased or any other person had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest; but exclusive of property the interest in which the deceased or any other person was only an interest as holder of an office, or recipient of the benefit of a charity, or as a corporation sole.”

The provision corresponding to Section 2(1)(a) of the English Act is Section 6 of the Estate Duty Act. Sec. 2(1)(b) corresponds to Sec. 7(1), first part. The latter part of Section 2(1)(b) of the English Act is covered by sub-sec. 4 of Sec. 7 and the explanation thereto in our Act, which is almost in identical terms with the later part of Sec. 2(1)(b). According to the learned counsel Sec. 7(1) of the Act is founded upon or closely follows Sec. 2(1)(b) of the English Act in its scope and in its purport; and consequently the inclusive part of Sec. 7(1) should have been intended to bring in a certain category of interest which would otherwise not have been within the scope of the earlier part of Sec. 7(i), which is the same as Sec. 2(i)(b). This argument necessarily calls for an examination of the scope of the latter part of Sec. 7(1) and what effect it has upon the earlier part of the same section.

15. Dilworth v. Commrs for Land and Income-tax, 1899 AC 99 has been relied upon in this context. That was a case where the expression ‘includes’ occurring in Section 2 of the Charitable Duties Exemption Act, 1883, came in for consideration. That section was in these terms:

“In this Act, the term ‘charitable purposes’ includes devises, bequests, and legacies of real or personal property respectively of whatever description to public institutions such as libraries, museums, institutions for the promotion of Science and Art., colleges and schools, or to hospitals, orphan, lunatic, or benevolent asylums, dispensaries.”

Lord Watson said:

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when, it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words of expressions defined. It may be equivalent to “mean and include”, and in that case it may afford an exhaustive explanation of the meaning, which, for the purposes of the Act, must invariably be attached to these-words or expressions.”

16. Learned counsel for the petitioner seeks to attach to the expression “including” occurring in. Sec. 7(1) of the Act, the more restricted interpretation which is suggested in the latter part of the above extract. According to him, what is meant in the context in which this expression appears is that the chargeability attached only to those interests which are more particularly specified in the inclusive part of the provision viz., only to joint family property of Hindu families governed by the Mitakshara, Marumakatayam or Aliyasantana law. There are several enactments where the definition clause contains the expression “to mean and include”, in which event it they be regarded that an exhaustive explanation of the things intended to be caught in the net of the section is specified. But, where the expression is merely “including” it does not seem to us that the expression is used to have a restrictive operation and to confine the scope of the section only to those tilings specified in the words following.

17. Considering also that this is a taxation measure, which is intended to be quite general in its operation, a more reasonable construction to place upon this expression would to our minds be that it enlarges the meaning of the words or phrases occurring in the section. We are supported in our conclusion by the further expression that is found in this very section itself. While the expression ‘including’ standing by itself might be possible of either of the two alternative interpretations suggested by Lord Watson, the particular phraseology employed in this provision in Sec. 7(1) which is “including in particular” compels us to adopt the interpretation which enlarges the meaning to be attached thereto. It is common place that every word and phrase occurring in a section must be given a meaning, and in particularizing the coparcenary interest, the legislature would appear to have intended only to remove any ambiguity which might otherwise be supposed to exist in the area of operation of the provision.

18. The expression “in particular” came in for examination in Padmanabha v. State of Madras, ILR (1956) Mad 1272: ((S) AIR 1956 Mad 349). The question arose therein whether a rule framed by the State Government under Section 68(2) of the Motor Vehicles Act, IV of 1939 was within the scope of that provision. While-Sec. 68(1) contained, a general power for the framing of rules. Sec. 68(2) provided that “without prejudice to the generality of the tore-going power, rules under this section may be made with, respect to all or any of the following matters”…… and proceeded to specify a list of items with respect to which rules could be made. The learned Judge referring to the rule of construction laid down by the House of Lords in Earl Fitzwilliam's Wentworth Estates Co. v. Minister of Housing and Local Government, 1952 AC 362 (383), concluded that the particularization of the matters contained in Sec. 68(2) of the Act was only intended to make it clear that the items enumerated therein do not limit or otherwise control the power conferred by Sec. 68(1) and that the enumeration in Sec. 68(2) only amounted to a statutory recognition that all of those items are within the scope of the generality of the power conferred by Sec. 68(1) of the Act. This decision fully supports the view that we have taken, viz., that in particularizing interests of a special character, the legislature was not confining the operation of the section to those particular matters.

19. This interpretation placed upon the expression “indues” in 1899 AC 99 has been followed in Mellows v. Low, 1923-1 KB 522, where McCardie, J. also observed:

“In my view, the word “includes” as used in para (g) is not a term of limitation or precise definition; it means what it says—that it includes the matters thereafter mentioned; in other words, it is a word of enlargement rather than restriction…………”

The next contention of the learned counsel is that in construing Sec. 7(1) of the Act, the contents of the other sub-sections of the Act should be taken into account. Sub-secs. 2 and 3 provide for exclusion of certain cases. Sub-sec. 2 deals with the case of a Hindu coparcenary governed by the Mitakshara school of law. Sub-sec. (3), however, though it is expressed in general terms, capable of application to a tarwad governed by the Marumakatayam law, relates back to sub-sec. 1 and it provides that sub-section shall not apply with respect to the interest of the decease in the property of the tarwad unless the deceased had completed his eighteenth year. In putting forward the argument that there is no analogous provision to the case of a Mohammadan tarwad governed by the Marumakatayam law, learned counsel for the petitioner is really pursuing his interpretation of S. 7(1), viz., that it should be confined in its operation to only the coparcenary interest in the joint family property of a Hindu family. In the view that we have taken of the scope of Sec. 7(1), this argument must necessarily fail. We have elsewhere pointed out that Sec. 39(2) of the Act is certainly comprehensive enough to include a Mohammadan tarwad governed by the Marumakattayam rule of inheritance.

20. For this argument that the case where an interest of a deceased member of a joint family governed by the Marumakattayam law passes on his death would come within the scope of Sec. 5 of the Act itself, an argument which we have not found it possible to concur in, the learned Advocate General sought support in Public Trustee v. Inland Revenue Commrs., 1960-2 WLR 203. In this decision the House of Lords disagreed with the view taken by Lord Macnaghten in Earl Cowley v. Inland Revenue Commrs, 1899 A.C 198, that Sections 1 and 2 of the English Act were mutually exclusive and that if a case properly fell within the scope of Sec. 1 in which event property in fact passes it is not necessary to resort to Sec. 2 where by a statutory fiction property is deemed to pass. This view was differed from by Viscount Simonds in the later decision. Though, we have held in the view we have taken that the present case falls squarely within the scope of S. 7(1) and not under S. 5, since the argument has been advanced on behalf of the revenue, we have thought it necessary to refer to it.

21. Considerable reliance has been placed by the learned counsel for the petitioner on the fact that this joint family is impartible. Impartibility can however be no test whatsoever for the reason that the section itself does not in terms exclude interests in joint family properties which are by custom or by law rendered impartible. It is true that a coparcenary interest in the partible joint family property of a Hindu family is not the same as this (sic) interest of a member of a tarwad governed by the Marumakathayam law of Inheritance this (sic) property of which is impartible either by custom or under law. But the interest of the members in the family except as regards the right to demand a partition is in no way different under the two rules of inheritance. A point almost similar in its scope arose in Attorney General v. Heywood, (1887) 1 E.D.C 13. That was a case where by a settlement the settlor assigned to trustees a sum of money together with interest, upon certain trusts and it was declared that the trustees should apply the income to the benefit of the settlor and his wife and children, or at their discretion for the benefit of one or more of such persons to the exclusion of others. The power conferred upon the trustees actually extended to depriving the settlor of the benefit of the settled property at their discretion, though an interest in such property for life was reserved to the settlor. In essence, therefore, apart from such an interest, none of the beneficiaries was entitled to any portion of the corpus of the property itself. Nonetheless, it was held that on the death of the settlor, death duty became payable. Willis J. observed:

“The question is whether under the settlement of……any interest was reserved to…..the settlor, for, if any interest was reserved to him, it was clearly a life interest, because it terminated on his death. The word ‘interest’ is capable of different meanings according to the context in which it is used or the subject matter to which it is applied. If the contention for the department is right nobody has any interest in the property at all, and yet the whole fund was to be held for the benefit of three classes of persons — husband, wife and children; and the sum of the benefits for all of these three classes taken together being the sum of three nothings would amount to nothing, whereas on the other hand, it must necessarily comprehend the whole interest in the fund……”

It, therefore, follows that notwithstanding the restraint upon partibility and separate enjoyment of the share of a member of the tarwad, he does possess an interest in the property. There is no doubt the absence of power in such a member to dispose of the property. But that is not equivalent to the same tiling as to say that he is not possessed of an interest therein. Whatever interest such a person has in the property which ceases on his death is by a fiction statutorily enacted deemed to pass, and the extent to which it passes is equated under the provisions to the benefit which accrues or arises by the cesser of such interest. While in the case of a person who is entitled to an actual share in the properties on partition, such an interest may be capable of definite appraisal, an inchoate interest in a case where the member is not entitled to partition may be of a lesser value. But that, as we have said, cannot be taken as denying the existence of any interest whatsoever in a member of such family. The very fact that all the members of a tarwad have a community of property leads to the irresistible conclusion that such and every member has an interest in such property.

22. It has next been contended that apart from the fact that in a case of this kind there is no passing of property, whether factual or by the deeming provision, there is in any event no benefit which accrues or arises by the cesser of the interest owned by a member of the tarwad. The right which a member of the tarwad possesses is undoubtedly on interest in property. It has been held in Govindan v. Kunhappu, 71 Mad LJ 574 : (AIR 1936 Mad 917), that

“the right of a junior member to maintenance from the income of the properties of the tarwad is an incident of co-proprietorship in the property of the tarwad. It has been held to be an assignable and transferable interest. Therefore, it seems to me that such interest can be relinquished.”

This decision did not deal with a tarwad which was impartible in its nature. There is no doubt that it has laid down the proposition that the member of a tarwad has an interest in property. It is impossible to say that this interest which is a tangible one reduces itself to nothing by reason of the death of the member. If it is a right in the property of the tarwad, as also held in Manikkath Ammani Ammal v. Padmanabha Menon, 35 Mad LJ 509 : (AIR 1919 Mad 677), the cesser of that interest must necessarily enlarge the interests of the remaining members of the family and must, therefore, result in the conclusion that a benefit does arise to the other members of the family. In so far as the Estate Duty Act is concerned, it is immaterial to whom the interest of the deceased person passes. The only question is whether the cesser of the interest leads to the accrual of a benefit to some one or other person. If it does, then Sec. 7(1) of the Act is attracted. The argument to the contrary that there is no enlargement of the rights of the other members does not seem to us to be acceptable under the circumstances.

23. In the view that we have taken of the provisions, it follows that a Moplah tarwad governed by the Marumakattayam law of inheritance, whether it is impartible by custom or statute, is brought within the scope of Sec. 7(1) of the Act. The contention of the petitioner that the proceedings taken under the provisions of the Act by the Estate Duty Authorities is without jurisdiction fails.

24. We must make it clear that we have confined ourselves only to the question whether Sec. 7(1) applies when a female member of an impartible Moplah tarwad dies. In our opinion it does. We are not called upon to decide nor do we decide how the interest of the deceased should be evaluated for the purposes of ascertaining the estate duty payable.

25. Had it been necessary to do so by an order of Court, We would have set aside the “decision” in the letter of the respondent dated 4-1-1957. But there is no need for that, as the department had offered to withdraw the letter. We have had to consider only the question whether the petitioner is entitled to a writ of prohibition, and we have held that he is not.

26. The rule nisi is discharged and the petition is dismissed with costs. Counsel's fee Rs. 500/-.

(This petition having been set down this day (23-1-1961) for being mentioned, the Court made the following Order.)

Bajagopalan, O.C.J:— No doubt rule 7(2) of the Rules framed to regulate proceedings under Art. 226 of the Constitution prescribed maxima and minima for fees payable to legal practitioners; in proceedings under Art. 226 of the Constitution the prescribed minimum is Rs. 50 and the maximum is Rs. 250.

27. In W.P No. 105 of 1957 we fixed the counsel's fee at Rs. 500, in view of the special difficulties involved and the importance of the questions dealt with. Learned counsel for the petitioner urged that the allowable fee should not exceed Rs. 250, which is the limit prescribed by rule 7(2). Learned counsel for the respondent invited our attention to rule 16 of Order V of the High Court Fees Rules, 1956, which deals with practitioners' fees in general. Rule 16 provides:

“In case of special difficulty or importance or where the amount of work involved is unusually great, the court may, on the application of a party, direct that a higher fee than would ordinarily be admissible under these rules be allowed to a party.”

Learned counsel for the petitioner pointed out that there was no similar enabling rule under the rules framed to regulate proceedings under Art. 226 of the Constitution. Order V also prescribes maxima and minima for proceedings in court. To the extent specific maxima and minima have been prescribed, rule 7(2) would exclude the operation of the maxima and minima prescribed in Order V. But rule 16 of Order V will, in our opinion, govern proceedings under Art. 226 of the Constitution also. There is nothing in those rules inconsistent with rule 16 of Order V to attract the operation of the principle that a special provision excludes the operation of a general provision of law.

28. In our opinion, the court has jurisdiction to fix a fee higher than Rs. 250 referred to in rule 7(2). Our orders fixing the fee at Rs. 500 will stand.

G.E/C.

29. Petition dismissed.